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381 | Personal space in multi-occupancy cell and prison overcrowding | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Relevant domestic law 1. Constitution 41. The relevant provisions of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2011) read as follows: Article 23 “No one shall be subjected to any form of ill-treatment ...” Article 25 “All detainees and convicted persons shall be treated in a humane manner and with respect for their dignity.” 42. The relevant part of section 62 of the Constitutional Act on the Constitutional Court ( Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette nos. 99/1999, 29/2002, 49/2002) reads: “1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that a decision (pojedinačni akt ) of a State body, a body of local and regional self-government, or a legal person with public authority, which has decided about his or her rights and obligations, or about a suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms, or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter ‘constitutional right’) ...” 2. Enforcement of Prison Sentences Act 43. The relevant provisions of the Enforcement of Prison Sentences Act ( Zakon o izvršavanju kazne zatvora, Official Gazette no. 128/1999, 55/2000, 99/2000, 129/2000, 59/2001, 67/2001, 11/2002, 190/2003, 76/2007, 27/2008, 83/2009 and 18/2011) read as follows: The purpose of enforcement of prison sentences Section 2 “The main purpose of the enforcement of prison sentences is, ensuring humane treatment and respect for the dignity of the person serving the prison sentence (hereinafter the ‘inmate’), to prepare him or her for life after release in accordance with the law and social rules.” Basic rights and their restrictions Section 3 “(1) An inmate shall enjoy the protection of basic rights established in the Constitution of the Republic of Croatia, international agreements and the present Act. (2) The basic rights of an inmate may be restricted by the enforcement of a prison sentence only to the extent necessary for the achievement of the purpose of the enforcement of the sentence and subject to the procedure specified in the present Act. (3) The rights of an inmate may be restricted only exceptionally, if it is indispensable for the protection of order and security in a State prison or [county] prison, and for the protection of other inmates. (4) Any restrictions on the basic rights of inmates provided for in the present Act shall be proportionate to the reasons for which they are implemented.” Bodies responsible for the enforcement of prison sentences Section 6 “(1) The task of the enforcement of prison sentence shall lie within the jurisdiction and competence of the [Ministry of Justice Prison Administration] and the sentence-execution judge. ...” Prohibition of unlawful treatment Section 9 “(1) Prison sentences shall be enforced so that the respect for the human dignity of inmates is guaranteed. Treatment subjecting inmates to any form of torture, ill-treatment or humiliation, or medical or scientific experiments, shall be prohibited and punishable. (2) Prohibited treatment under paragraph 1 of the present section shall particularly include any treatment which is disproportionate to the need to maintain order and discipline in State prisons or prisons, or which is unlawful and could result in suffering or inappropriate restriction of the basic rights of inmates.” Rights of inmates Section 14 “(1) Subject to the conditions set forth in the present Act, every inmate shall be entitled to: ... (9) a minimum of two hours per day to be spent outdoors within a State prison or [county] prison ...” Complaints Section 15 “(1) An inmate shall have the right to complain about an act or decision of an employee of a State prison or [county] prison. (2) Complaints shall be lodged orally or in writing with the prison governor, or the head office of the Prison Administration [of the Ministry of Justice]. ... (5) If an inmate lodges a complaint with the sentence-execution judge, it shall be considered a request for judicial protection under section 17 hereof.” Judicial protection against acts and decisions of the administration of a State prison or [county] prison Section 17 “(1) An inmate may lodge a request for judicial protection against any acts or decisions unlawfully denying him or her any of the rights guaranteed by the present Act or unlawfully restricting such rights. (2) The sentence-execution judge shall dismiss the request for judicial protection if he or she finds that it is unfounded. If the request is well-founded, the sentence-execution judge shall order that the unlawful deprivations or restrictions of rights be remedied. If that is not possible, the sentence-execution judge shall find a violation and prohibit its repetition. (3) The inmate and the prison facility may lodge an appeal against the sentence-execution judge’s decision ... ” Accommodation of inmates Section 74 “(1) Accommodation of inmates has to meet health, hygienic and spatial standards and be appropriate to the climate. (2) Inmates shall, as a rule, be accommodated in separate rooms. Inmates who are believed not to be causing mutual negative influence can be accommodated in the same room. Each inmate shall have his or her own bed. Inmates shall spend free time in living rooms, together with other inmates. (3) Premises where inmates are accommodated have to be dry, clean and large enough. There shall be a minimum space of 4 square metres and 10 cubic metres per prisoner in each dormitory. (4) Each room in which inmates live or work must have daily and artificial light which enables reading and work without causing any difficulties for eyesight. (5) State prisons and [county] prisons must be equipped with sanitary facilities which enable regular satisfaction of physiological needs in a clean and appropriate environment, whenever inmates need them. (6) Drinking water must always be accessible to inmates.” Personal hygiene and cleaning of premises Section 76 “(1) All premises in a State prison or [county] prison must be well maintained and regularly cleaned. (2) Assignments specified in paragraph 1 of this section shall be performed by inmates up to two hours a day, without financial compensation. (3) Inmates shall be enabled to wash their bodies every day. Inmates are required to maintain personal hygiene. A State prison or [county] prison shall provide water and toiletries for ensuring personal hygiene and clean laundry, clothing, shoes and bedding. Beards, moustaches and long hair may be exceptionally prohibited for reasons of security or health. (4) Supervision of personal hygiene and tidiness shall be performed by a medical doctor or by another medical expert.” Meals Section 78 “(1) Inmates shall be offered appropriately prepared and served meals at regular intervals. The quality and quantity of meals shall satisfy the requirements of nutrition and hygiene and shall be appropriate to the inmate’s age, health, nature of work and, depending on the possibilities of a State prison or [county] prison, religious and cultural preferences. ...” Employment of inmates Section 80 “(1) An inmate shall be entitled to work, subject to his state of health, [level of] knowledge and the opportunities [available] in a State prison or [county] prison. ...” Use of free time Section 96 “(1) A State prison or [county] prison shall provide for space and equipment for meaningful use of free time. (2) A State prison or [county] prison shall organise various kinds of activities in order to meet the physical, spiritual and cultural needs of inmates. (3) The free time of inmates shall be used in workshops organised for painting, technical activities, music, literature, theatre, journalism, computing, debating clubs, exercising and the like. (4) The content of organised free time shall be determined in the enforcement programme. (5) In accordance with the possibilities of a State prison or [county] prison an inmate shall be permitted to organise his or her own free time (his or her hobby) at his or her own expense, if it does not endanger security and order and does not disturb other inmates. ...” B. Relevant practice 44. In the periodic annual reports between 2009 and 2011 the Croatian Ombudsperson reported on the general problem of prison overcrowding in Croatia, including in Bjelovar Prison, as one of the central organisational problems of the prison system which had generated the majority of complaints and violations of the rights of prisoners. The Ombudsperson also observed that prisons generally addressed the problem by converting various premises into dormitories and cells for prisoners and by providing greater freedom of movement inside the prisons. In the reports, the Ombudsperson constantly pointed out the need to adequately secure the rights of prisoners as guaranteed under the relevant domestic law and international standards. 45. In a general report on the conditions of detention in Croatia, no. U-X-5464/2012 of 12 June 2014, the Constitutional Court identified the problem of prison overcrowding and instructed the competent authorities to take more proactive measures in securing adequate conditions of detention for all types of detainees, as provided under the relevant domestic law and international standards. The relevant part of the report reads as follows: “ Conclusions 13. The Constitutional Court points out that the State authorities are obliged to introduce effective normative and enforcement measures, which must ensure that every detainee is placed in conditions such as to guarantee respect for his or her human dignity. Notwithstanding the financial limitations in the designated budgetary expenses for the criminal justice system, and in view of the economic crisis, an appropriate financial position should be adopted concerning the construction of new custodial capacities, and with regard to other infrastructural investments within the prison system. 13.1. The Constitutional Court observes that to persons who are serving a prison sentence or are detained [pending trial], the State authorities are obliged to secure the minimum personal space as provided for under the Enforcement of Prison Sentences Act or in accordance with the standards which [the Court] set out in the Ananyev and Others v. Russia case (judgment of 10 January 2012). These are as follows: each detainee must have an individual sleeping place in the cell, each detainee must dispose of at least 3 sq. m of floor space, and the overall surface area of the cell must be such as to allow detainees to move freely between furniture. ...” III. RELEVANT INTERNATIONAL MATERIALS A. Council of Europe standards on the question of prison overcrowding 1. European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) (a) Explanatory report to the Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 46. The relevant part of the Explanatory report to the Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT/Inf/C (89) 1 [EN]) reads: “27. The case-law of the Court and Commission of Human Rights on Article 3 provides a source of guidance for [the CPT]. However, the Committee’s activities are aimed at future prevention rather than the application of legal requirements to existing circumstances. The Committee should not seek to interfere in the interpretation and application of Article 3.” (b) General Reports 47. The relevant part of the First General Report, CPT/Inf (91) 3 [EN], of 20 February 1991, reads: “47. Four important consequences follow from the fact that ‘prevention’ constitutes the lynchpin of the whole monitoring system set up by the Convention. 48. First, the CPT must always look into the general conditions of detention existing in the countries visited. It must examine not only whether abuses are actually occurring but also be attentive to those ‘indicators’ or ‘early signs’ pointing to possible future abuses. For instance, it must - and indeed does - scrutinise the physical conditions of detention (the space available to detainees; lighting and ventilation; washing and toilet facilities; eating and sleeping arrangements; the medical care provided by the authorities, etc.) as well as the social conditions (for example, relationships with other detainees and the law enforcement personnel; links with families, social workers, the outside world in general, etc.). The CPT also pays close attention to the extent to which certain basic safeguards against ill-treatment exist in the country visited e.g. notification of police custody; access to a lawyer; access to a medical doctor; the possibilities of lodging complaints about ill-treatment or conditions of detention. 49. Second, often one cannot understand and assess the conditions under which persons are deprived of their liberty in a given country without considering those conditions in their general (historical, social, economic) context. Although human dignity must be effectively respected in all Parties to the Convention, the background of each of these countries varies, and can account for differences in their response to human rights issues. It follows that, to fulfil its task of preventing abuses, the CPT must often look into the underlying causes of general or specific conditions conducive to mistreatment. 50. The third consequence is closely associated with the two previous ones. In a number of instances the CPT - after investigating the conditions of detention in a particular country - may not find it appropriate to confine itself to merely suggesting immediate or short-term measures (such as, for example, administrative action) or even such measures as legislative improvements. It may find it necessary to recommend long-term measures, at least whenever it has become apparent that unacceptable conditions exist in a country as a result of deep-rooted factors that cannot be alleviated simply by judicial or legislative fiat or by resort to other legal techniques. In such cases, educational and similar long-term strategies may prove essential. 51. A fourth consequence flows from all the above remarks, namely that for the CPT to accomplish its preventive function effectively, it must aim at a degree of protection that is greater than that upheld by the European Commission and European Court of Human Rights when adjudging cases concerning the ill-treatment of persons deprived of their liberty and their conditions of detention.” 48. In a document titled “CPT standards” [CPT/Inf/E (2002) 1 - Rev. 2015] the CPT summarised the relevant standards flowing from its General Reports with a view to “[giving] a clear advance indication to national authorities of its views regarding the manner in which persons deprived of their liberty ought to be treated and, more generally, to stimulate discussion on such matters”. The relevant part of the document concerning conditions of detention reads (pp. 17-24, footnotes omitted): “ II. Prisons Imprisonment Extract from the 2nd General Report [CPT/Inf (92) 3] ... 46. Overcrowding is an issue of direct relevance to the CPT’s mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps significantly. Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint. 47. A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners. This holds true for all establishments, whether for sentenced prisoners or those awaiting trial. The CPT has observed that activities in many remand prisons are extremely limited. The organisation of regime activities in such establishments - which have a fairly rapid turnover of inmates - is not a straightforward matter. Clearly, there can be no question of individualised treatment programmes of the sort which might be aspired to in an establishment for sentenced prisoners. However, prisoners cannot simply be left to languish for weeks, possibly months, locked up in their cells, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature. Of course, regimes in establishments for sentenced prisoners should be even more favourable. 48. Specific mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard (preferably it should form part of a broader programme of activities). The CPT wishes to emphasise that all prisoners without exception (including those undergoing cellular confinement as a punishment) should be offered the possibility to take outdoor exercise daily. It is also axiomatic that outdoor exercise facilities should be reasonably spacious and whenever possible offer shelter from inclement weather. ... 50. The CPT would add that it is particularly concerned when it finds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners. Extract from the 7th General Report [CPT/Inf (97) 10] 12. In the course of several of its visits during 1996, the CPT once again encountered the evils of prison overcrowding, a phenomenon which blights penitentiary systems across Europe. Overcrowding is often particularly acute in prisons used to accommodate remand prisoners (i.e. persons awaiting trial); however, the CPT has found that in some countries the problem has spread throughout the prison system. 13. As the CPT pointed out in its 2nd General Report, prison overcrowding is an issue of direct relevance to the Committee’s mandate (cf. CPT/Inf (92) 3, paragraph 46). An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive. The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention. ... 15. The problem of prison overcrowding is sufficiently serious as to call for cooperation at European level, with a view to devising counter strategies. Consequently, the CPT was most pleased to learn that work on this subject has recently begun within the framework of the European Committee on Crime Problems (CDPC). The CPT hopes that the successful conclusion of that work will be treated as a priority. Extract from the 11th General Report [CPT/Inf (2001) 16] ... Prison overcrowding 28. The phenomenon of prison overcrowding continues to blight penitentiary systems across Europe and seriously undermines attempts to improve conditions of detention. The negative effects of prison overcrowding have already been highlighted in previous General Reports. As the CPT’s field of operations has extended throughout the European continent, the Committee has encountered huge incarceration rates and resultant severe prison overcrowding. The fact that a State locks up so many of its citizens cannot be convincingly explained away by a high crime rate; the general outlook of members of the law enforcement agencies and the judiciary must, in part, be responsible. In such circumstances, throwing increasing amounts of money at the prison estate will not offer a solution. Instead, current law and practice in relation to custody pending trial and sentencing as well as the range of non-custodial sentences available need to be reviewed. This is precisely the approach advocated in Committee of Ministers Recommendation No R (99) 22 on prison overcrowding and prison population inflation. The CPT very much hopes that the principles set out in that important text will indeed be applied by member States; the implementation of this Recommendation deserves to be closely monitored by the Council of Europe.” (c) The CPT’s basic minimum standard for personal living space in prison establishments 49. On the basis of standards which have been frequently used in a large number of CPT country visit reports, the CPT decided in November 2015 to provide a clear statement of its position and standards regarding minimum living space per prisoner. This was the aim of the document entitled “Living space per prisoner in prison establishments: CPT standards” (CPT/Inf (2015) 44 of 15 December 2015). 50. The CPT explained that the document at issue concerned ordinary cells designed for prisoners’ accommodation, as well as special cells, such as disciplinary, security, isolation or segregation cells. However, waiting rooms or similar spaces used for very short periods of time (such as police stations, psychiatric establishments, and immigration detention facilities) were not covered there. In that connection the CPT underlined that minimum standards for personal living space were not a straightforward matter and that such standards differed according to the type of establishment. Likewise, a difference needed to be made between the intended occupancy level of the accommodation in question, that is to say whether a single cell or a cell designed for multiple occupancy (cells for two to four inmates) was at issue, and what was the regime offered to prisoners. 51. The CPT further stressed that it had developed in the 1990s a basic “rule of thumb” standard for the minimum amount of living space that a prisoner should be afforded in a cell. That was 4 sq. m of living space per prisoner in a multiple-occupancy cell, excluding the sanitary facilities within a cell. This standard was, however, a minimum standard. The CPT had therefore decided to promote a desirable standard regarding multiple-occupancy cells of up to four inmates by adding 4 sq. m per additional inmate to the minimum living space of 6 sq. m of living space for a single-occupancy cell. 52. With regard to the difference between minimum standards and the question of inhuman and degrading treatment, the CPT explained: “19. The European Court of Human Rights is approached with an ever-increasing number of complaints from prisoners who allege that they are detained in inhuman or degrading conditions, having to share cells with large numbers of fellow-inmates, which leaves them with very little living space. The Court, in its judgments, is obliged to decide whether or not the holding of prisoners in cells offering a very limited living space per person (usually less than 4m²) constitutes a violation of Article 3. 20. The role of the CPT, as a preventive monitoring body, is different. Its responsibility does not entail pronouncing on whether a certain situation amounts to inhuman or degrading treatment or punishment within the meaning of Article 3, ECHR. However, in the course of its visits the Committee has been confronted with prison conditions that beggared belief and were, as described in one visit report, an ‘affront to a civilised society’. Hence, in a number of visit reports it has stated that the conditions observed in grossly overcrowded prisons could be considered as amounting to ‘inhuman and degrading treatment’. 21. The CPT has never considered that its cell-size standards should be regarded as absolute. In other words, it does not automatically hold the view that a minor deviation from its minimum standards may in itself be considered as amounting to inhuman and degrading treatment of the prisoner(s) concerned, as long as other, alleviating, factors can be found, such as, in particular, the fact that inmates are able to spend a considerable amount of time each day outside their cells (in workshops, classes or other activities). Nevertheless, even in such cases, the CPT would still recommend that the minimum standard be adhered to. 22. On the other hand, for the Committee to say that conditions of detention could be considered as amounting to inhuman and degrading treatment, the cells either have to be extremely overcrowded or, as in most cases, combine a number of negative elements, such as an insufficient number of beds for all inmates, poor hygiene, infestation with vermin, insufficient ventilation, heating or light, lack of in-cell sanitation and in consequence the use of buckets or bottles for the needs of nature. In fact, the likelihood that a place of detention is very overcrowded but at the same time well ventilated, clean and equipped with a sufficient number of beds is extremely low. Thus, it is not surprising that the CPT often enumerates the factors that constitute appalling detention conditions, rather than just referring to inadequate living space. In addition – but by no means in every case – other factors not directly related to the conditions are taken into account by the CPT when assessing a particular situation. These factors include little out-of-cell time and generally a poor regime; reduced outdoor exercise; deprivation of contacts with relatives for several years, etc. 23. The Appendix to this document contains a non-exhaustive list of factors (other than the amount of living space per prisoner) to be taken into consideration when assessing detention conditions in prison. Conclusion 24. This document seeks to give guidance to practitioners and other interested parties, by clearly stating the CPT’s minimum standards regarding living space for prisoner(s) in a given cell. Ultimately, it is for the courts to decide whether a particular person has experienced suffering that has reached the threshold of inhuman or degrading treatment within the meaning of Article 3, ECHR, taking into account all kinds of factors, including the individual’s personal constitution. The number of square metres available per person is but one factor, albeit often a very significant or even decisive one. 25. Conditions where inmates are left with less than 4m² per person in multiple-occupancy cells, or single cells measuring less than 6m² (both excluding a sanitary annexe) have consistently been criticised by the CPT, and authorities have regularly been called upon to enlarge (or withdraw from service) single cells or reduce the number of inmates in multiple-occupancy cells. The CPT expects that these minimum living space standards will be systematically applied in all prison establishments in Council of Europe member states, and hopes that more and more countries will strive to meet the CPT’s “desirable” standards for multiple-occupancy cells.” 53. In the Annex to the document in question, the CPT referred to the following non-exhaustive list of factors to be taken into consideration when assessing detention conditions in prison: “ State of repair and cleanliness - Cells, including furniture, should be in a decent state of repair and every effort should be made to keep the living areas clean and hygienic. - Any infestation with vermin needs to be tackled vigorously. - Inmates should be provided with the necessary personal hygiene products and cleaning materials. Access to natural light, ventilation and heating - All living accommodation for prisoners (both single- and multiple-occupancy cells) should have access to natural light as well as to artificial lighting which is sufficient for reading purposes. - Equally, there needs to be sufficient ventilation to ensure a constant renewal of the air inside the cells. - Cells should be adequately heated. Sanitary facilities - Each cell should possess a toilet and a washbasin as a minimum. In multiple-occupancy cells the sanitary facilities should be fully partitioned (i.e. up to the ceiling). - In those few prisons where no in-cell sanitary facilities are available, the authorities must ensure that prisoners have ready access to the toilet whenever needed. Today, no prisoner in Europe should be obliged to ‘slop out’, a practice that is degrading both for the prisoners and for the staff members who have to supervise such a procedure. Outdoor exercise - The CPT considers that every prisoner should be offered a minimum of one hour of outdoor exercise every day. Outdoor exercise yards should be spacious and suitably equipped to give inmates a real opportunity to exert themselves physically (e.g., to practise sports); they should also be equipped with a means of rest (e.g., a bench) and a shelter against inclement weather. Purposeful activities - The CPT has long recommended that prisoners should be offered a range of varied purposeful activities (work, vocation, education, sport and recreation). To this end, the CPT has stated since the 1990s that the aim should be for prisoners – both sentenced and on remand – to spend eight hours or more a day outside their cells engaged in such activities, and that for sentenced prisoners the regime should be even more favourable.” (d) CPT reports concerning Croatia 54. The CPT visited Croatia four times: in 1998, 2003, 2007 and 2012. Neither of these visits concerned Bjelovar Prison. In the report concerning its last visit in 2012 [CPT/Inf (2014) 9], the CPT addressed in general the problem of overcrowding and the efforts of the domestic authorities in dealing with that problem. The relevant parts of the report read: “ B. Prison establishments 1. Preliminary remarks ... a. prison overcrowding 27. The overall prison population of Croatia has increased by 1,200 inmates to 5,400 (i.e. more than 25%) since the CPT’s last visit in 2007, while the official capacity of the prison estate has risen by only some 400 places to 3,771. Overcrowding is thus becoming more acute within the prison system. The delegation observed the negative impact of prison overcrowding on many aspects of prison life in the establishments visited, notably in Zagreb and Sisak County Prisons. Originally conceived as prisons (zatvori) for remand prisoners and persons serving sentences of up to six months’ duration, 50 percent of the population now held in these establishments are convicted prisoners serving sentences of up to five years. At Zagreb County Prison, the resultant increase in the number of prisoners has meant, for example, that rooms previously assigned for common activities have been converted into cellular accommodation. Recognising the ever worsening serious problem of overcrowding and the need to combat it, the Croatian Government adopted an Action Plan for the Improvement of the Prison System of the Republic of Croatia from 2009 to 2014 which envisages the construction of new prison establishments in Glina, Zagreb and Šibenik, with a combined total of 2,072 places. It also envisages a set of additional measures, such as recruiting more staff and enhancing the initial and in-service training provided to staff. The delegation visited the recently inaugurated building at Glina State Prison which can accommodate up to 420 inmates and was shown the building site of a new section of Zagreb County Prison which, once completed in 2016, will raise the capacity of the prison by 382 places. Representatives of the Ministry of Justice informed the delegation that the extension had been funded with the assistance of a loan from the Council of Europe Development Bank (CEB) and that another loan application with the CEB had been completed for the construction of the new State Prison in Šibenik with a proposed capacity of 1,270 places. 28. These steps demonstrate a commitment by the Croatian authorities to tackle overcrowding. However, as already stressed by the CPT in its previous reports to the Croatian authorities, providing additional accommodation cannot offer a lasting solution to the problem of prison overcrowding, at least not without adopting, in parallel, policies designed to limit or modulate the number of persons sent to prison. In this respect, the Committee takes note of the efforts invested by the Ministry of Justice since 2007 in elaborating a legal framework and putting into place a probation system at the national level, which includes the possibility for State Prosecutors, Courts and Probation Offices to enlarge the scope and number of persons subject to alternative measures such as community work and protected supervision. At least 15 percent of the current convicted prison population (i.e. those inmates serving sentences of up to one year) could potentially benefit from non-custodial measures once the new Law on Probation is adopted. The CPT recommends that the Croatian authorities pursue their efforts to combat prison overcrowding taking into account the recommendations adopted by the Committee of Ministers of the Council of Europe, in particular Recommendation Rec(99)22 concerning prison overcrowding and prison population inflation, Recommendation Rec(2003)22 on conditional release (parole), Recommendation Rec(2006)13 on the use of remand in custody and Recommendation Rec2010(01) on the Council of Europe probation rules. The Committee would like to receive updated information on the impact of the measures being taken to tackle prison overcrowding. Prisons Preliminary remarks recommendations - the Croatian authorities to pursue their efforts to combat prison overcrowding taking into account the recommendations adopted by the Committee of Ministers of the Council of Europe, in particular Recommendation Rec(99)22 concerning prison overcrowding and prison population inflation, Recommendation Rec(2003)22 on conditional release (parole), Recommendation Rec(2006)13 on the use of remand in custody and Recommendation Rec(2010)01 on the Council of Europe probation rules (paragraph 28). Conditions of detention of the general prison population recommendations ... - the Croatian authorities to take steps to reduce cell occupancy levels in all the prisons visited (as well as in other prisons in Croatia), so as to provide for at least 4 m² of living space per prisoner in multi-occupancy cells; for this purpose, the area taken up by any in-cell sanitary facilities should not be counted (paragraph 36); - the smaller cells (measuring 7m²) at Zagreb County Prison to accommodate not more than one person (paragraph 36); ... - the Croatian authorities to improve the programme of activities, including work and vocational training opportunities, for prisoners at Glina State Prison, Zagreb and Sisak County Prisons and, where appropriate, at other prisons in Croatia (paragraph 40); ...” 2. Committee of Ministers (a) European Prison Rules 55. The European Prison Rules are recommendations of the Committee of Ministers to member States of the Council of Europe on the minimum standards to be applied in prisons. The 1987 European Prison Rules (featuring as an appendix to Recommendation No. R (87) 3) were adopted on 12 February 1987. On 11 January 2006 the Committee of Ministers, noting that the 1987 Rules “needed to be substantively revised and updated in order to reflect the developments which ha[d] occurred in penal policy, sentencing practice and the overall management of prisons in Europe”, adopted Recommendation Rec(2006)2 on the European Prison Rules. The new, 2006 version of the Rules featured as an appendix to this Recommendation. It reads, in so far as relevant, as follows: “ Part I Basic principles 1. All persons deprived of their liberty shall be treated with respect for their human rights. 2. Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody. 3 Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed. 4. Prison conditions that infringe prisoners’ human rights are not justified by lack of resources. 5. Life in prison shall approximate as closely as possible the positive aspects of life in the community. 6. All detention shall be managed so as to facilitate the reintegration into free society of persons who have been deprived of their liberty. ... Scope and application 10.1. The European Prison Rules apply to persons who have been remanded in custody by a judicial authority or who have been deprived of their liberty following conviction. 10.2. In principle, persons who have been remanded in custody by a judicial authority and persons who are deprived of their liberty following conviction should only be detained in prisons, that is, in institutions reserved for detainees of these two categories. 10.3 The Rules also apply to persons: a. who may be detained for any other reason in a prison; or b. who have been remanded in custody by a judicial authority or deprived of their liberty following conviction and who may, for any reason, be detained elsewhere. ... Part II Conditions of imprisonment ... Allocation and accommodation ... 18.1. The accommodation provided for prisoners, and in particular all sleeping accommodation, shall respect human dignity and, as far as possible, privacy, and meet the requirements of health and hygiene, due regard being paid to climatic conditions and especially to floor space, cubic content of air, lighting, heating and ventilation. 18.2. In all buildings where prisoners are required to live, work or congregate: a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system; b. artificial light shall satisfy recognised technical standards; and c. there shall be an alarm system that enables prisoners to contact the staff without delay. 18.3. Specific minimum requirements in respect of the matters referred to in paragraphs 1 and 2 shall be set in national law. 18.4. National law shall provide mechanisms for ensuring that these minimum requirements are not breached by the overcrowding of prisons. 18.5. Prisoners shall normally be accommodated during the night in individual cells except where it is preferable for them to share sleeping accommodation. 18.6. Accommodation shall only be shared if it is suitable for this purpose and shall be occupied by prisoners suitable to associate with each other. 18.7. As far as possible, prisoners shall be given a choice before being required to share sleeping accommodation. 18.8. In deciding to accommodate prisoners in particular prisons or in particular sections of a prison due account shall be taken of the need to detain: a. untried prisoners separately from sentenced prisoners; b. male prisoners separately from females; and c. young adult prisoners separately from older prisoners. 18.9. Exceptions can be made to the requirements for separate detention in terms of paragraph 8 in order to allow prisoners to participate jointly in organised activities, but these groups shall always be separated at night unless they consent to be detained together and the prison authorities judge that it would be in the best interest of all the prisoners concerned. 18.10. Accommodation of all prisoners shall be in conditions with the least restrictive security arrangements compatible with the risk of their escaping or harming themselves or others. ... Hygiene 19.1 All parts of every prison shall be properly maintained and kept clean at all times. 19.2 When prisoners are admitted to prison the cells or other accommodation to which they are allocated shall be clean. 19.3 Prisoners shall have ready access to sanitary facilities that are hygienic and respect privacy. 19.4 Adequate facilities shall be provided so that every prisoner may have a bath or shower, at a temperature suitable to the climate, if possible daily but at least twice a week (or more frequently if necessary) in the interest of general hygiene. 19.5 Prisoners shall keep their persons, clothing and sleeping accommodation clean and tidy. 19.6 The prison authorities shall provide them with the means for doing so including toiletries and general cleaning implements and materials. ... Clothing and bedding ... 21. Every prisoner shall be provided with a separate bed and separate and appropriate bedding, which shall be kept in good order and changed often enough to ensure its cleanliness. Nutrition 22.1 Prisoners shall be provided with a nutritious diet that takes into account their age, health, physical condition, religion, culture and the nature of their work. ... Prison regime 25.1 The regime provided for all prisoners shall offer a balanced programme of activities. 25.2 This regime shall allow all prisoners to spend as many hours a day outside their cells as are necessary for an adequate level of human and social interaction. 25.3 This regime shall also provide for the welfare needs of prisoners. ... Work 26.1 Prison work shall be approached as a positive element of the prison regime and shall never be used as a punishment. 26.2 Prison authorities shall strive to provide sufficient work of a useful nature. ... Exercise and recreation 27.1 Every prisoner shall be provided with the opportunity of at least one hour of exercise every day in the open air, if the weather permits. 27.2 When the weather is inclement alternative arrangements shall be made to allow prisoners to exercise. 27.3 Properly organised activities to promote physical fitness and provide for adequate exercise and recreational opportunities shall form an integral part of prison regimes. 27.4 Prison authorities shall facilitate such activities by providing appropriate installations and equipment. 27.5 Prison authorities shall make arrangements to organise special activities for those prisoners who need them. 27.6 Recreational opportunities, which include sport, games, cultural activities, hobbies and other leisure pursuits, shall be provided and, as far as possible, prisoners shall be allowed to organise them. 27.7 Prisoners shall be allowed to associate with each other during exercise and in order to take part in recreational activities. Education 28.1 Every prison shall seek to provide all prisoners with access to educational programmes which are as comprehensive as possible and which meet their individual needs while taking into account their aspirations. ... Part VIII Sentenced prisoners Objective of the regime for sentenced prisoners 102.1 In addition to the rules that apply to all prisoners, the regime for sentenced prisoners shall be designed to enable them to lead a responsible and crime-free life. 102.2 Imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment. Implementation of the regime for sentenced prisoners 103.1 The regime for sentenced prisoners shall commence as soon as someone has been admitted to prison with the status of a sentenced prisoner, unless it has commenced before. 103.2 As soon as possible after such admission, reports shall be drawn up for sentenced prisoners about their personal situations, the proposed sentence plans for each of them and the strategy for preparation for their release. 103.3 Sentenced prisoners shall be encouraged to participate in drawing up their individual sentence plans. 103.4 Such plans shall as far as is practicable include: a. work; b. education; c. other activities; and d. preparation for release. ... Work by sentenced prisoners 105.1 A systematic programme of work shall seek to contribute to meeting the objective of the regime for sentenced prisoners. ... Education of sentenced prisoners 106.1 A systematic programme of education, including skills training, with the objective of improving prisoners’ overall level of education as well as their prospects of leading a responsible and crime-free life, shall be a key part of regimes for sentenced prisoners. ...” (b) Recommendation No. R (99) 22 56. The relevant parts of the Recommendation No. R (99) 22 of the Committee of Ministers to Member States concerning Prison Overcrowding and Prison Population Inflation, of 30 September 1999, read: “The Committee of Ministers ... Considering that prison overcrowding and prison population growth represent a major challenge to prison administrations and the criminal justice system as a whole, both in terms of human rights and of the efficient management of penal institutions; Considering that the efficient management of the prison population is contingent on such matters as the overall crime situation, priorities in crime control, the range of penalties available on the law books, the severity of the sentences imposed, the frequency of use of community sanctions and measures, the use of pre-trial detention, the effectiveness and efficiency of criminal justice agencies and not least public attitudes towards crime and punishment; Affirming that measures aimed at combating prison overcrowding and reducing the size of the prison population need to be embedded in a coherent and rational crime policy directed towards the prevention of crime and criminal behaviour, effective law enforcement, public safety and protection, the individualisation of sanctions and measures and the social reintegration of offenders; Considering that such measures should conform to the basic principles of democratic States governed by the rule of law and subject to the paramount aim of guaranteeing human rights, in conformity with the European Convention on Human Rights and the case-law of the organs entrusted with its application; Recognising moreover that such measures require support by political and administrative leaders, judges, prosecutors and the general public, as well as the provision of balanced information on the functions of punishment, on the relative effectiveness of custodial and non-custodial sanctions and measures and on the reality of prisons; Bearing in mind the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment; ... Recommends that governments of member states: - take all appropriate measures, when reviewing their legislation and practice in relation to prison overcrowding and prison population inflation, to apply the principles set out in the Appendix to this Recommendation; - encourage the widest possible dissemination of the Recommendation and the report on prison overcrowding and prison population inflation elaborated by the European Committee on Crime Problems. Appendix to Recommendation No. R (99) 22 I. Basic principles 1. Deprivation of liberty should be regarded as a sanction or measure of last resort and should therefore be provided for only, where the seriousness of the offence would make any other sanction or measure clearly inadequate. 2. The extension of the prison estate should rather be an exceptional measure, as it is generally unlikely to offer a lasting solution to the problem of overcrowding. Countries whose prison capacity may be sufficient in overall terms but poorly adapted to local needs should try to achieve a more rational distribution of prison capacity. 3. Provision should be made for an appropriate array of community sanctions and measures, possibly graded in terms of relative severity; prosecutors and judges should be prompted to use them as widely as possible. 4. Member states should consider the possibility of decriminalising certain types of offence or reclassifying them so that they do not attract penalties entailing the deprivation of liberty. 5. In order to devise a coherent strategy against prison overcrowding and prison population inflation a detailed analysis of the main contributing factors should be carried out, addressing in particular such matters as the types of offence which carry long prison sentences, priorities in crime control, public attitudes and concerns and existing sentencing practices. II. Coping with a shortage of prison places 6. In order to avoid excessive levels of overcrowding a maximum capacity for penal institutions should be set. 7. Where conditions of overcrowding occur, special emphasis should be placed on the precepts of human dignity, the commitment of prison administrations to apply humane and positive treatment, the full recognition of staff roles and effective modern management approaches. In conformity with the European Prison Rules, particular attention should be paid to the amount of space available to prisoners, to hygiene and sanitation, to the provision of sufficient and suitably prepared and presented food, to prisoners’ health care and to the opportunity for outdoor exercise. 8. In order to counteract some of the negative consequences of prison overcrowding, contacts of inmates with their families should be facilitated to the extent possible and maximum use of support from the community should be made. 9. Specific modalities for the enforcement of custodial sentences, such as semi ‑ liberty, open regimes, prison leave or extra-mural placements, should be used as much as possible with a view to contributing to the treatment and resettlement of prisoners, to maintaining their family and other community ties and to reducing the tension in penal institutions. ... V. Measures relating to the post-trial stage The implementation of community sanctions and measures – The enforcement of custodial sentences 22. In order to make community sanctions and measures credible alternatives to short terms of imprisonment, their effective implementation should be ensured, ... 24. Parole should be regarded as one of the most effective and constructive measures, which not only reduces the length of imprisonment but also contributes substantially to a planned return of the offender to the community. ...” (c) Standards adopted in the execution of the Court’s judgments 57. In its 2014 report on supervision of the execution of the Court’s judgments (available at http://www.coe.int/t/dghl/monitoring/execution/ Source/Publications/CM_annreport2014_en.pdf ), with regard to the enforcement of two judgments against Italy ( Sulejmanovic v. Italy, no. 22635/03, 16 July 2009; and Torreggiani and Others v. Italy, nos. 43517/09, 46882/09, 55400/09, 57875/09, 61535/09, 35315/10 and 37818/10, 8 January 2013) the Committee of Ministers noted: “In response to the CM’s earlier decision, the authorities have provided additional information in April, indicating the adoption of various structural measures in view of complying with the judgments in this group, accompanied by statistical data showing an important and continuing drop in the prison population and an increase in living space to at least 3m2 per detainee. In addition, a preventive remedy was established within the deadline set by the Torreggiani and Others pilot judgment and steps were taken to establish a compensatory remedy through the adoption of a Law-Decree, later in June. The CM welcomed the authorities’ commitment to resolve the problem of prison overcrowding and the significant results achieved in this area and invited them to provide further information regarding the implementation of the preventive remedy, notably in the light of the monitoring to be undertaken in this context.” 3. The Council of Europe Committee on Crime Problems 58. In its Commentary to the European Prison Rules, the Council of Europe Committee on Crime Problems explained the scope of the requirements for adequate accommodation and prison regimes under the Rules. The relevant part of the Commentary reads: “Rule 18 includes some new elements. The first, in Rule 18.3, is intended to compel governments to declare by way of national law specific standards, which can be enforced. Such standards would have to meet wider considerations of human dignity as well as practical ones of health and hygiene. The CPT, by commenting on conditions and space available in prisons in various countries has begun to indicate some minimum standards. These are considered to be 4 m2 for prisoners in shared accommodation and 6 m2 for a prison cell. These minima are, related however, to wider analyses of specific prison systems, including studies of how much time prisoners actually spend in their cells. These minima should not be regarded as the norm. Although the CPT has never laid down such a norm directly, indications are that it would consider 9 to 10 m2 as a desirable size for a cell for one prisoner. This is an area in which the CPT could make an ongoing contribution that would build on what has already been laid down in this regard. What is required is a detailed examination of what size of cell is acceptable accommodation of various numbers of persons. Attention needs to be paid to the number of hours that prisoners spend locked in the cells, when determining appropriate sizes. Even for prisoners who spend a large amount of time out of their cells, there must be a clear minimum space, which meets standards of human dignity. ... Rule 25 underlines that the prison authorities should not concentrate only on specific rules, such as those related to working, education and exercise, but should review the overall prison regime of all prisoners to see that it meets basic requirements of human dignity. Such activities should cover the period of a normal working day. It is unacceptable to keep prisoners in their cells for 23 hours out of 24, for example. The CPT has emphasised that the aim shall be that the various activities undertaken by prisoners should take them out of their cells for at least eight hours a day ... “ B. The relevant United Nations standards 59. The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), A/C.3/70/L.3, 29 September 2015, as the global key standards for the treatment of prisoners adopted by the United Nations General Assembly, in the relevant part provide: “ I. Rules of general application Basic principles Rule 1 All prisoners shall be treated with the respect due to their inherent dignity and value as human beings. No prisoner shall be subjected to, and all prisoners shall be protected from, torture and other cruel, inhuman or degrading treatment or punishment, for which no circumstances whatsoever may be invoked as a justification. The safety and security of prisoners, staff, service providers and visitors shall be ensured at all times. ... Rule 4 1. The purposes of a sentence of imprisonment or similar measures deprivative of a person’s liberty are primarily to protect society against crime and to reduce recidivism. Those purposes can be achieved only if the period of imprisonment is used to ensure, so far as possible, the reintegration of such persons into society upon release so that they can lead a law-abiding and self-supporting life. 2. To this end, prison administrations and other competent authorities should offer education, vocational training and work, as well as other forms of assistance that are appropriate and available, including those of a remedial, moral, spiritual, social and health- and sports-based nature. All such programmes, activities and services should be delivered in line with the individual treatment needs of prisoners. ... Accommodation Rule 12 1. Where sleeping accommodation is in individual cells or rooms, each prisoner shall occupy by night a cell or room by himself or herself. If for special reasons, such as temporary overcrowding, it becomes necessary for the central prison administration to make an exception to this rule, it is not desirable to have two prisoners in a cell or room. 2. Where dormitories are used, they shall be occupied by prisoners carefully selected as being suitable to associate with one another in those conditions. There shall be regular supervision by night, in keeping with the nature of the prison. Rule 13 All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation. Rule 14 In all places where prisoners are required to live or work: (a) The windows shall be large enough to enable the prisoners to read or work by natural light and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation; (b) Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight. Rule 15 The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner. Rule 16 Adequate bathing and shower installations shall be provided so that every prisoner can, and may be required to, have a bath or shower, at a temperature suitable to the climate, as frequently as necessary for general hygiene according to season and geographical region, but at least once a week in a temperate climate. Rule 17 All parts of a prison regularly used by prisoners shall be properly maintained and kept scrupulously clean at all times. Personal hygiene Rule 18 1. Prisoners shall be required to keep their persons clean, and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness. 2. In order that prisoners may maintain a good appearance compatible with their self-respect, facilities shall be provided for the proper care of the hair and beard, and men shall be able to shave regularly. Clothing and bedding Rule 19 1. Every prisoner who is not allowed to wear his or her own clothing shall be provided with an outfit of clothing suitable for the climate and adequate to keep him or her in good health. Such clothing shall in no manner be degrading or humiliating. ... Rule 21 Every prisoner shall, in accordance with local or national standards, be provided with a separate bed and with separate and sufficient bedding which shall be clean when issued, kept in good order and changed often enough to ensure its cleanliness. Food Rule 22 1. Every prisoner shall be provided by the prison administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served. 2. Drinking water shall be available to every prisoner whenever he or she needs it. Exercise and sport Rule 23 1. Every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits. 2. Young prisoners, and others of suitable age and physique, shall receive physical and recreational training during the period of exercise. To this end, space, installations and equipment should be provided. ... II. Rules applicable to special categories A. Prisoners under sentence ... Privileges Rule 95 Systems of privileges appropriate for the different classes of prisoners and the different methods of treatment shall be established at every prison, in order to encourage good conduct, develop a sense of responsibility and secure the interest and cooperation of prisoners in their treatment. Work Rule 96 1. Sentenced prisoners shall have the opportunity to work and/or to actively participate in their rehabilitation, subject to a determination of physical and mental fitness by a physician or other qualified health-care professionals. 2. Sufficient work of a useful nature shall be provided to keep prisoners actively employed for a normal working day. ... Education and recreation Rule 104 1. Provision shall be made for the further education of all prisoners capable of profiting thereby, including religious instruction in the countries where this is possible. The education of illiterate prisoners and of young prisoners shall be compulsory and special attention shall be paid to it by the prison administration. ... Rule 105 Recreational and cultural activities shall be provided in all prisons for the benefit of the mental and physical health of prisoners.” C. The International Committee of the Red Cross (ICRC) 60. On the basis of its visits to places of detention in diverse situations where it monitored conditions of detention and treatment of prisoners, the ICRC first published in 2005 a document titled “Water, Sanitation, Hygiene and Habitat in Prisons”, which was updated in 2012. In 2009 it held an international roundtable in order to discuss developments in the establishment of international guidance on the basis of which it published Supplementary guidance to the Water, Sanitation, Hygiene and Habitat in Prisons standards (available at www.icrc.org ). 61. The ICRC observed that there is no universal standard for detainee accommodation space and that different organisations and fora had made recommendations in this context affecting various groups of countries. Likewise, the ICRC noted that in the absence of universal standards, national standards had been developed by numerous countries but they vary widely. For instance in Europe standards ranged from 4 sq. m in Albania to 12 sq. m in Switzerland. Moreover, some jurisdictions prescribed greater space for pre-trial detainees, others specified greater space requirements for women (for example, Iceland, Poland and Slovenia), and others still differentiated between adults and juveniles (for example, Hungary and Latvia). 62. In the absence of a universal standard, and based on its experience, the ICRC developed specifications concerning space requirements. For the multi-occupancy accommodation of prisoners this recommendation was 3.4 sq. m per person, including bunk beds and toilet facilities. The ICRC emphasised, however, that this was a recommended specification and not a standard. It stressed that in practical terms the amount of space required by a detainee could not be assessed only on the basis of a specific area measurement. A number of other factors contributed to the assessment of space requirements, including management factors and the facilities and services available in the prison. According to the ICRC, this reflected a comprehensive approach that provided a more accurate picture of the reality for detainees. 63. The ICRC therefore considered that the space factor alone was a limited measurement of the quality of life and conditions of detention. As such, it was merely a starting point when evaluating the conditions in which detainees were held. However, space norms could not be specified separately from the overall environment and thus the appropriateness of the ICRC’s recommended specifications in any given situation would depend on a number of other factors including: the specific individual needs of, for example, sick, old or young prisoners, women and/or people with disabilities; the physical condition of the buildings; the amount of time spent in the accommodation area; the frequency and extent of opportunities to take physical exercise, work and be involved in other activities outside the accommodation area; the number of people in the accommodation area (to allow a degree of privacy and avoid isolation); the amount of natural light and the adequacy of the ventilation; other activities being undertaken in the accommodation area (such as cooking, washing, drying); other services available (such as toilets and showers); and the extent of supervision provided. 64. In particular, with regard to the amount of time spent in the cell, the ICRC emphasised that the longer a detainee was held in a confined accommodation space in any twenty-four hour period, the greater the amount of space he or she would require. In other words, the more hours a detainee spent engaged in positive activities in a safe, secure environment outside the accommodation area each day, the greater the possibility of mitigating the negative effects of close confinement. Positive activities in this context include work and education, meeting visitors, engaging in organised exercise or sport, spending extended periods of unstructured time in outdoor exercise areas, and participating in hobbies and recreation programmes. 65. The ICRC also made a distinction between the general accommodation requirements and accommodation requirements in emergency situations (such as political crisis, natural disasters, fire, riots, health crises in which large numbers of detainees needed to be separated from the others or events which required the transfer of detainees from a prison that had been damaged to another prison). The ICRC’s initial indication that in such situations 2 sq. m per prisoner should be provided had been subsequently criticised by the experts. The emphasis was thus placed not on the indication of minimum requirement of personal space but the necessity of returning a prison to normal conditions (including minimum space specifications) as soon as possible. In particular, it was emphasised that in such instances it is necessary to avoid a situation in which the restrictions introduced to deal with the emergency situation developed into a chronic deficiency. THE LAW I. THE GOVERNMENT’S PRELIMINARY OBJECTION A. The parties’ submissions 66. The Government reiterated the objection they had raised before the Chamber as to the non-exhaustion of domestic remedies (see paragraph 37 of the Chamber judgment). They contended that the applicant had not properly exhausted domestic remedies as he had failed in his constitutional complaint to provide details concerning the allegedly inadequate conditions of his detention, and had failed to cite the relevant provisions of the Convention and the Constitution. 67. The applicant maintained that he had properly exhausted domestic remedies as in his constitutional complaint he had specifically relied on section 74 of the Enforcement of Prison Sentences Act, which guaranteed a minimum of 4 sq. m of personal space, and had complained that this provision had not been complied with in his case. He thereby gave an adequate opportunity to the Constitutional Court to examine all the relevant circumstances of his case. B. The Chamber’s findings 68. The Chamber observed that the applicant had complained to the Constitutional Court in substance that his rights had been violated on account of the lack of personal space and work opportunities in Bjelovar Prison. The Chamber therefore held that, by bringing his complaints in substance before the Constitutional Court, the applicant had properly exhausted domestic remedies. C. The Court’s assessment 69. The Court reiterates that the Grand Chamber is not precluded from examining, where appropriate, questions concerning the admissibility of an application under Article 35 § 4 of the Convention, as that provision enables the Court to dismiss applications it considers inadmissible “at any stage of the proceedings”. Therefore, even at the merits stage and subject to Rule 55, the Court may reconsider a decision to declare an application admissible where it concludes that it should have been declared inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Convention (see, for example, Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia [GC], no. 60642/08, § 78, ECHR 2014). 70. However, having examined the Government’s submission, the Court finds no grounds for reconsidering the Chamber’s decision to dismiss the objection of non-exhaustion. Indeed, the Court has consistently held that the rule on exhaustion of domestic remedies under Article 35 § 1 of the Convention requires that the complaints intended to be made subsequently before it should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25 March 2014; and also, generally, Gherghina v. Romania (dec.) [GC], no. 42219/07, §§ 84-87, 9 July 2015). 71. As regards the remedies concerning prison conditions in Croatia, the Court has held that a complaint lodged with the competent judicial authority or the prison administration is an effective remedy, since it can lead to an applicant’s removal from inadequate prison conditions. Moreover, in the event of an unfavourable outcome, the applicant can pursue his complaints before the Constitutional Court (see Štitić v. Croatia (dec.), no. 29660/03, 9 November 2006; and Dolenec v. Croatia, no. 25282/06, § 113, 26 November 2009), which also has the competence to order his release or removal from inadequate prison conditions (see, inter alia, Peša v. Croatia, no. 40523/08, § 80, 8 April 2010). Accordingly, in order to satisfy the requirement of exhaustion of domestic remedies and in conformity with the principle of subsidiarity applicants are required, before bringing their complaints to the Court, to afford the Croatian Constitutional Court the opportunity of remedying their situation and addressing the issues they wish to bring before the Court (see Bučkal v. Croatia (dec.), no. 29597/10, § 20, 3 April 2012; and Longin v. Croatia, no. 49268/10, § 36, 6 November 2012). 72. In the present case the Court notes that, after having duly used all available remedies before the competent judicial authorities and the prison administration (see paragraphs 22-24, 26 and 29 above), the applicant brought his complaints before the Constitutional Court where he expressly complained, albeit in a succinct manner, about the problem of overcrowding in Bjelovar Prison. He relied on section 74(3) of the Enforcement of Prison Sentences Act which guarantees adequate personal space to detainees and alleged that this provision had not been complied with in his case (see paragraph 32 above). It follows that the applicant provided the national authorities with the opportunity which is in principle intended to be afforded to Contracting States by Article 35 § 1 of the Convention, namely of putting right the violations alleged against them (see, amongst many others, Jaćimović v. Croatia, no. 22688/09, §§ 40-41, 31 October 2013, and cases cited therein). 73. The Court thus finds that the applicant properly exhausted domestic remedies. The Government’s preliminary objection must therefore be dismissed. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 74. The applicant complained of inadequate conditions of detention in Bjelovar Prison. He alleged that he had been allocated less than 3 sq. m of personal space for several non-consecutive periods amounting in total to fifty days, and that there had also been several non-consecutive periods in which he was allocated between 3 and 4 sq. m of personal space in the cells. In this connection he also alleged poor sanitary and hygiene conditions and nutrition, a lack of work opportunities, and insufficient access to recreational and educational activities. He relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The Chamber judgment 75. In view of the fact that the central tenet of the applicant’s complaint before the Chamber concerned his alleged lack of personal space in Bjelovar Prison, the Chamber reiterated the general principles laid down in the pilot judgment Ananyev and Others v. Russia (nos. 42525/07 and 60800/08, § 148, 10 January 2012), concerning the question of prison overcrowding. In particular, the Chamber reiterated that the test set out in Ananyev and Others for deciding whether or not there has been a violation of Article 3 of the Convention in respect of detainees’ lack of personal space was three-fold, namely: (1) each detainee must have an individual sleeping place in the cell; (2) each detainee must dispose of at least 3 sq. m of floor space; and (3) the overall surface of the cell must be such as to allow detainees to move freely between furniture. The absence of any of these elements created a strong presumption that the conditions of an applicant’s detention were inadequate. 76. Accordingly, the Chamber stressed that where a detainee disposed of less than 3 sq. m of floor space a strong presumption arose that the conditions of detention had amounted to degrading treatment and were in breach of Article 3. However, in certain circumstances that strong presumption could be rebutted by the cumulative effects of the other conditions of detention. 77. In the light of the above principles, the Chamber observed that whereas it was true that the personal space afforded to the applicant fell short of the standard of 4 sq. m of personal space per prisoner set out by the CPT in its recommendations, it did not consider it so extreme as to justify in itself a finding of a violation of Article 3 of the Convention. The Chamber noted that occasionally the applicant’s personal space fell slightly below 3 sq. m for short, non-consecutive periods of time, including one period of twenty-seven days, which the Chamber noted with concern. However, the Chamber observed that the applicant had been allowed three hours a day to move freely outside his cell; that the cells where he had been detained had unobstructed access to natural light and air, as well as drinking water; that he had been provided with an individual bed and nothing impeded him from moving freely within the cell. Moreover, the Chamber noted various out-of-cell activities which the prisoners at Bjelovar Prison had at their disposal, such as a library and access to recreational facilities. 78. In these circumstances, as the applicant’s detention had been accompanied by sufficient freedom of movement inside the prison, and his confinement had taken place in an otherwise appropriate facility, the Chamber found that the conditions of his detention did not reach the threshold of severity required to consider his treatment to be inhuman or degrading under Article 3 of the Convention. B. The parties’ submissions 1. The applicant 79. The applicant pointed out that he had been allocated less than 3 sq. m of personal space in detention for several non-consecutive periods amounting in total to fifty days. One of those periods had amounted to twenty-seven days, which the applicant did not consider to be a “short and occasional” reduction in the required personal space. The applicant stressed that it followed from the Court’s case-law that when a detainee disposed of less than 3 sq. m of personal space in multi-occupancy accommodation it was in itself sufficient to find a violation of Article 3. Some other deficiencies could be noted simply to corroborate that finding. The applicant also stressed that the relevant CPT standard was 4 sq. m and, in his view, the Court should follow that standard. In his particular case, there had also been several non-consecutive periods in which he was allocated between 3 and 4 sq. m of personal space in the cells. 80. The applicant further pointed out that the sanitary facility should be deducted from the overall size of the cells. He also stressed that he had been unable to pace out the cell normally given that, during periods when five to eight inmates had been placed in the same cell, the space was reduced by five to eight beds, cupboards, tables and chairs. In reality, throughout his stay in Bjelovar Prison, he had had on average only 2.25 sq. m of personal space. The applicant also argued that he had not been provided with sufficient recreational and educational activities or a possibility to work in Bjelovar Prison. The only possibility of movement outside his cell had been for three hours per day, in the period between 4 and 7 p.m. The applicant therefore considered that, in view of his personal circumstances and his young age, the reduction in his personal space had not been adequately compensated for, which had made him feel humiliated and debased. 81. In the applicant’s view, this was all corroborated by the fact that Bjelovar Prison had been built in the nineteenth century and that since then there had been no relevant reconstructions or improvement of the facilities. There had been however some renovation of the facilities in 2011 and some of the photographs of Bjelovar Prison provided by the Government had been taken following that renovation. They included photographs of some of the cells where he had not been accommodated. Moreover, the applicant referred to a complaint made by other detainees and to an interview given in November 2010 by the Prison Director who had stressed that while the prison administration had managed to increase the number of places in Bjelovar Prison from the original capacity of fifty-three to seventy-nine, at times up to 129 prisoners had been accommodated there. At the same time, the applicant considered that the Government had failed to provide sufficient evidence of strong counterbalancing factors that could have alleviated the extreme lack of personal space. 82. Lastly, the applicant contended that he had never been given adequate protection by the sentence-execution judge and that the prison authorities had hindered his complaints to the Ombudsperson by transferring him to Varaždin Prison before the Ombudsperson managed to see him. 2. The Government 83. The Government submitted that the applicant’s complaints had been examined in detail at the domestic level by the competent sentence-execution judge, who had heard the applicant and who had regularly visited Bjelovar Prison in the period at issue, namely twelve times during the applicant’s stay there. The sentence-execution judge had not found a violation of his right to adequate conditions of detention. These findings had been reviewed and upheld by a three-judge panel of the Bjelovar County Court and the Constitutional Court. Likewise, the Ombudsperson had examined the applicant’s complaints and noted that they principally concerned matters related to his transfer to a prison closer to his family. The Ombudsperson also noted that Bjelovar Prison had been recently renovated. Moreover, in the case of Pozaić v. Croatia (no. 5901/13, 4 December 2014), raising an issue of conditions of detention in Bjelovar Prison dating from the same period in which the applicant had been detained there, the Court had also found no violation of Article 3 of the Convention. In this connection the Government pointed out that, given that the CPT had never visited Bjelovar Prison, the Court’s finding in Pozaić was the only determination of conditions of detention in that prison by an international institution. 84. The Government further stressed that recently in the leading case of Varga and Others v. Hungary (nos. 14097/12, 45135/12, 73712/12, 34001/13, 44055/13, and 64586/13, 10 March 2015) the Court had reiterated the Ananyev test of a “strong presumption” of a violation of Article 3 when the personal space available to a detainee fell below 3 sq. m. It noted, however, that this presumption had been rebutted in a number of cases by the cumulative effects of the conditions of detention (in this connection the Government cited Dmitriy Rozhin v. Russia, no. 4265/06, § 53, 23 October 2012; Fetisov and Others v. Russia, nos. 43710/07, 6023/08, 11248/08, 27668/08, 31242/08 and 52133/08, 17 January 2012; Kurkowski v. Poland, no. 36228/06, 9 April 2013; and Vladimir Belyayev v. Russia, no. 9967/06, 17 October 2013). 85. In the Government’s view, concluding on the basis of the space allocated that there has been an automatic violation would be a formalistic approach which would disregard a number of relevant counterbalancing factors and the CPT’s position according to which all aspects of detention should be taken into account. This approach could moreover dissuade States from developing and implementing various measures aimed at improving the quality of life for prisoners. This could be observed in the case of Croatia where, despite the standard of 4 sq. m set out in the relevant domestic law, the overall flexible approach to the question of conditions of detention had allowed for some important steps to be taken in reducing and solving the problems related to the level of prison overcrowding in recent years. The Croatian prisons were at present at eighty-five percent of their full capacity. Moreover, the automatic approach would run counter to the basic principles of the Court’s case-law and, although appearing to be a simple solution, would not secure effective protection of the rights of prisoners. Thus, in the Government’s view, a possibility to rebut the presumption should exist and it should operate in a realistic and practical manner. 86. In the case at issue, and taking into account these principles and the overall conditions of the applicant’s detention described above (see paragraphs 18-21 above), the Government considered that the general issue of overcrowding existing in Bjelovar Prison at the time, had not infringed any of the applicant’s rights and that he had not been subjected to inhuman or degrading treatment under Article 3 of the Convention. 3. The third-party interveners (a) Observatoire international des prisons – section française (OIP-SF), Ligue belge des droits de l’homme (LDH) and Réseau européen de contentieux pénitentiaire (RCP) 87. The interveners submitted that the Court’s case-law on the questions of conditions of detention, and in particular the minimum personal space under Article 3 of the Convention, was inconsistent and unclear, particularly with regard to the question of the minimum number of square metres of personal space that should be allocated to a detainee. In their view, this impeded a proper implementation of the relevant standards at the domestic level. 88. In the interveners’ view the question of personal space allocated to a detainee should be examined as the central element in the assessment of conditions of detention. The standard of minimum personal space to be allocated to a detainee should be set at 4 sq. m, as followed from the relevant CPT recommendations, national and other European and international standards. The interveners further argued that, should the Grand Chamber adopt the approach of a “strong presumption” of a violation of Article 3 when the personal space allocated to a detainee fell below the required minimum standard, it should operate as a strong presumption which could be rebutted only exceptionally. The central factor in this respect would be sufficient freedom of movement within the prison facility and it would be for the domestic authorities to demonstrate that the scarce allocation of personal space was adequately compensated for. On the other hand, the interveners stressed that when the personal space allocated to a detainee fell below 3 sq. m, that should be considered so severe that it should lead to an irrebuttable presumption of a violation of Article 3, and such a situation could not be compensated for or mitigated by other factors. (b) The Documentation Centre ‘L’altro diritto onlus’ 89. The intervener stressed that the Court’s case-law on the question of conditions of detention needed clarification and harmonisation, particularly with regard to the question of adequate personal space. In the intervener’s view, this element needed to be established in a clear and reasoned manner as a minimum requirement, and any departure from such minimum should per se always lead to a finding of a violation of the Convention. 90. The intervener invited the Court to reaffirm the Ananyev test by making it clear, in particular, that failure to meet the minimum of 3 sq. m of personal space allocated to a detainee created a strong presumption of a violation of Article 3 that could be challenged only in cases of extreme urgency and necessity and when it concerned a considerably limited period of time. Moreover, every prisoner should have his or her own bed and sufficient freedom of movement inside the cell. With regard to the distribution of the burden of proof the intervener considered that, after an applicant had made a prima facie case, the burden should be shifted to the respondent Government to provide a solid factual basis to rebut the strong presumption of a violation by adducing the relevant evidence on the basis of the findings of independent and impartial national tribunals or other competent authorities. The intervener further submitted that other relevant factors relating to conditions of detention, beyond the question of adequate personal space, needed also to be taken into account in making an assessment under Article 3. C. The Court’s assessment 1. Introductory remarks 91. The Court is frequently called upon to rule on complaints alleging a violation of Article 3 of the Convention on account of insufficient personal space allocated to prisoners. In the present case, the Court finds it appropriate to clarify the principles and standards for the assessment of the minimum personal space per detainee in multi-occupancy accommodation in prisons under Article 3 of the Convention. 92. The Court would further note that different questions might arise in the context of single-occupancy accommodation, isolation or other similar detention regimes, or waiting rooms or similar spaces used for very short periods of time (such as police stations, psychiatric establishments, immigration detention facilities), which are however not in issue in the present case (see paragraph 50 above; and Georgia v. Russia (I) [GC], no. 13255/07, §§ 192-205, ECHR 2014 (extracts)). 93. The matter of prison overcrowding in multi-occupancy accommodation was one of the issues considered by the Grand Chamber in the Idalov v. Russia case ([GC], no. 5826/03, §§ 96-102, 22 May 2012). It has also been addressed in several pilot and leading judgments in which the Court has already indicated specific aspects related to the assessment of the problem of prison overcrowding, and the duty of the States to address the deficiencies identified by the Court in these judgments. 94. In particular, the Court has so far adopted pilot judgments addressing the question of prison overcrowding in respect of the following States: Bulgaria (see Neshkov and Others v. Bulgaria, nos. 36925/10, 21487/12, 72893/12, 73196/12, 77718/12 and 9717/13, 27 January 2015); Hungary (see Varga and Others, cited above); Italy (see Torreggiani and Others, cited above); Poland (see Orchowski v. Poland, no. 17885/04, 22 October 2009; and Norbert Sikorski v. Poland, no. 17599/05, 22 October 2009); and Russia (see Ananyev and Others, cited above), 95. The Court has also addressed the question of prison overcrowding by indicating the necessity of improving conditions of detention under Article 46 of the Convention in leading judgments with regard to the following States: Belgium (see Vasilescu v. Belgium, no. 64682/12, 25 November 2014); Greece (see Samaras and Others v. Greece, no. 11463/09, 28 February 2012; Tzamalis and Others v. Greece, no. 15894/09, 4 December 2012; and Al. K. v. Greece, no. 63542/11, 11 December 2014); Romania (see Iacov Stanciu v. Romania, no. 35972/05, 24 July 2012); Slovenia (see Mandić and Jović v. Slovenia, nos. 5774/10 and 5985/10, 20 October 2011; and Štrucl and Others v. Slovenia, nos. 5903/10, 6003/10 and 6544/10, 20 October 2011); and the Republic of Moldova (see Shishanov v. the Republic of Moldova, no. 11353/06, 15 September 2015). 2. Recapitulation of the relevant principles (a) General principles 96. Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV; and Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 113, ECHR 2014 (extracts)). 97. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25; Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006 ‑ IX; Idalov, cited above, § 91; and also, Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002 ‑ VI). 98. Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3 (see, among other authorities, Idalov, cited above, § 92; and also, Pretty v. the United Kingdom, no. 2346/02, § 52, ECHR 2002 ‑ III; Ananyev and Others, cited above, § 140; Varga and Others, cited above, § 70). Indeed, the prohibition of torture and inhuman or degrading treatment or punishment is a value of civilisation closely bound up with respect for human dignity (see Bouyid v. Belgium [GC], no. 23380/09, § 81, ECHR 2015). 99. In the context of deprivation of liberty the Court has consistently stressed that, to fall under Article 3, the suffering and humiliation involved must in any event go beyond that inevitable element of suffering and humiliation connected with detention. The State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject him or her to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his or her health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000 ‑ XI; Idalov, cited above, § 93; Svinarenko and Slyadnev, cited above, § 116; Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, § 178, ECHR 2016; and also, Valašinas v. Lithuania, no. 44558/98, § 102, ECHR 2001 ‑ VIII; and Ananyev and Others, cited above, § 141). 100. Even the absence of an intention to humiliate or debase a detainee by placing him or her in poor conditions, while being a factor to be taken into account, does not conclusively rule out a finding of a violation of Article 3 of the Convention (see, inter alia, Peers v. Greece, no. 28524/95, § 74, ECHR 2001 ‑ III; Mandić and Jović, cited above, § 80; Iacov Stanciu, cited above, § 179; and generally under Article 3, Svinarenko and Slyadnev, cited above, § 114, and Bouyid, cited above, § 86). Indeed, it is incumbent on the respondent Government to organise its penitentiary system in such a way as to ensure respect for the dignity of detainees, regardless of financial or logistical difficulties (see, amongst many others, Mamedova v. Russia, no. 7064/05, § 63, 1 June 2006; Orchowski, cited above, § 153; Neshkov and Others, cited above, § 229; and Varga and Others, cited above, § 103). 101. When assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant. The length of the period during which a person is detained in the particular conditions has also to be considered (see, amongst many others, Idalov, cited above, § 94; and also Orchowski, cited above, § 121; Torreggiani and Others, cited above, § 66; and Ananyev and Others, cited above, § 142). (b) Principles concerning prison overcrowding 102. The Court notes that the relevant principles and standards for the assessment of prison overcrowding flowing from its case-law in particular concern the following issues: (1) the question of minimum personal space in detention under Article 3 of the Convention; (2) whether the allocation of personal space below the minimum requirement creates a presumption or leads in itself to a violation of Article 3 of the Convention; and (3) what factors, if any, could compensate for the scarce allocation of personal space. (i) The question of minimum personal space under Article 3 (α) The relevant case-law 103. The Court has stressed on many occasions that under Article 3 it cannot determine, once and for all, a specific number of square metres that should be allocated to a detainee in order to comply with the Convention. Indeed, the Court has considered that a number of other relevant factors, such as the duration of detention, the possibilities for outdoor exercise and the physical and mental condition of the detainee, play an important part in deciding whether the detention conditions satisfied the guarantees of Article 3 (see Samaras and Others, cited above, § 57; Tzamalis and Others, cited above, § 38; and Varga and Others, cited above § 76; see further, for instance, Trepashkin v. Russia, no. 36898/03, § 92, 19 July 2007; Semikhvostov v. Russia, no. 2689/12, § 79, 6 February 2014; Logothetis and Others v. Greece, no. 740/13, § 40, 25 September 2014; and Suldin v. Russia, no. 20077/04, § 43, 16 October 2014). 104. Nevertheless, extreme lack of space in prison cells weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” within the meaning of Article 3. 105. In a substantial number of cases when the allocation of space to a detainee in multi-occupancy accommodation fell below 3 sq. m, the Court found the overcrowding so severe as to justify the finding of a violation of Article 3 (see the cases cited in Orchowski, cited above, § 122; Ananyev and Others, cited above, § 145; and Varga and Others, cited above, § 75). 106. When inmates appeared to have at their disposal personal space measuring between 3 and 4 sq. m the Court examined the (in)adequacy of other aspects of physical conditions of detention when making an assessment under Article 3. In such instances a violation of Article 3 was found only if the space factor was coupled with other aspects of inappropriate physical conditions of detention related to, in a particular context, access to outdoor exercise, natural light or air, availability of ventilation, adequacy of heating arrangements, the possibility of using the toilet in private, and compliance with basic sanitary and hygienic requirements (see Orchowski, cited above, § 122; Ananyev and Others, cited above, § 149; Torreggiani and Others, cited above, § 69; Vasilescu, cited above, § 88; and Varga and Others, cited above, § 78; see also, for example, Jirsák v. the Czech Republic, no. 8968/08, §§ 64-73, 5 April 2012; Culev v. Moldova, no. 60179/09, §§ 35-39, 17 April 2012; Longin, cited above, §§ 59-61; and Barilo v. Ukraine, no. 9607/06, §§ 80-83, 16 May 2013). 107. In the above-mentioned pilot and leading judgments the Court has fixed for its assessment the relevant minimum standard of personal space allocated to a detainee in multi-occupancy accommodation at 3 sq. m of floor surface (see Orchowski, cited above, § 123; Ananyev and Others, cited above, § 148; Torreggiani and Others, cited above, § 68; Vasilescu, cited above, § 88; Neshkov and Others, cited above, § 232; Samaras and Others, cited above, § 58; Tzamalis and Others, cited above, § 39; Varga and Others, cited above, § 74; Iacov Stanciu, cited above, § 168; and Mandić and Jović, cited above, § 75). Moreover, in the Grand Chamber Idalov case (cited above, § 101), when finding a violation of Article 3 on account of inadequate conditions of the applicant’s detention, the Grand Chamber noted, among other things, that “the applicant’s detention [had not met] the minimum requirement, as laid down in the Court’s case-law, of 3 square metres per person”. 108. However, in a minority of cases the Court has considered that personal space of less than 4 sq. m is already a factor sufficient to justify a finding of a violation of Article 3 (see, inter alia, Cotleţ v. Romania (no. 2), no. 49549/11, §§ 34 and 36, 1 October 2013; and Apostu v. Romania, no. 22765/12, § 79, 3 February 2015). This standard corresponds to the minimum standard of living space per detainee in multi-occupancy accommodation as developed in the practice of the CPT and recently elaborated in its policy document (see paragraph 51 above). (β) The approach to be taken 109. The Court reiterates that, while it is not formally bound to follow its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous cases (see, for example, Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 74, ECHR 2002‑VI; Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 104, 17 September 2009; and Sabri Güneş v. Turkey [GC], no. 27396/06, § 50, 29 June 2012). 110. The Court sees no grounds for departing from the approach taken in the pilot judgments and leading cases cited above and in the Grand Chamber Idalov case (see paragraph 107 above). It therefore confirms that the requirement of 3 sq. m of floor surface per detainee in multi-occupancy accommodation should be maintained as the relevant minimum standard for its assessment under Article 3 of the Convention (see paragraphs 124-128 below). 111. With regard to the standards developed by other international institutions such as the CPT, the Court would note that it has declined to treat them as constituting a decisive argument for its assessment under Article 3 (see, for instance, Orchowski, cited above, § 131; Ananyev and Others, cited above, §§ 144-145; Torreggiani and Others, cited above, §§ 68 and 76; see also Sulejmanovic, cited above, § 43; Tellissi v. Italy (dec.), no. 15434/11, § 53, 5 March 2013; and G.C. v. Italy, no. 73869/10, § 81, 22 April 2014). The same applies with regard to the relevant national standards, which, although capable of informing the Court’s decision in a particular case (see Orchowski, cited above, § 123), cannot be considered decisive for its finding under Article 3 (see, for instance, Pozaić, cited above, § 59; and Neshkov and Others, cited above, § 229). 112. The central reason for the Court’s reluctance to take the CPT’s available space standards as a decisive argument for its finding under Article 3 relates to its duty to take into account all relevant circumstances of a particular case before it when making an assessment under Article 3, whereas other international institutions such as the CPT develop general standards in this area aiming at future prevention (see paragraph 47 above; see also, Trepashkin, cited above, § 92; and Jirsák, cited above, § 63). Likewise, the relevant national standards vary widely and operate as general requirements of adequate accommodation in a particular penitentiary system (see paragraphs 57 and 61 above). 113. Moreover, as the CPT has recognised, the Court performs a conceptually different role to the one assigned to the CPT, whose responsibility does not entail pronouncing on whether a certain situation amounts to inhuman or degrading treatment or punishment within the meaning of Article 3 (see paragraph 52 above). The thrust of CPT activity is pre-emptive action aimed at prevention, which, by its very nature, aims at a degree of protection that is greater than that upheld by the Court when deciding cases concerning conditions of detention (see paragraph 47 above, the First General Report, § 51). In contrast to the CPT’s preventive function, the Court is responsible for the judicial application in individual cases of an absolute prohibition against torture and inhuman or degrading treatment under Article 3 (see paragraph 46 above). Nevertheless, the Court would emphasise that it remains attentive to the standards developed by the CPT and, notwithstanding their different positions, it gives careful scrutiny to cases where the particular conditions of detention fall below the CPT’s standard of 4 sq. m (see paragraph 106 above). 114. Lastly, the Court finds it important to clarify the methodology for the calculation of the minimum personal space allocated to a detainee in multi-occupancy accommodation for its assessment under Article 3. The Court considers, drawing from the CPT’s methodology on the matter, that the in-cell sanitary facility should not be counted in the overall surface area of the cell (see paragraph 51 above). On the other hand, calculation of the available surface area in the cell should include space occupied by furniture. What is important in this assessment is whether detainees had a possibility to move around within the cell normally (see, for instance, Ananyev and Others, cited above, §§ 147-148; and Vladimir Belyayev, cited above, § 34). 115. The Court would also observe that no distinction can be discerned in its case-law with regard to the application of the minimum standard of 3 sq. m of floor surface to a detainee in multi-occupancy accommodation in the context of serving and remand prisoners. Indeed, in the Orchowski pilot judgment the Court applied the same standards for the assessment of minimum personal space under Article 3 with regard to prisons and remand centres (see Orchowski, cited above, § 124), and the same standard was applicable in other pilot judgments relevant for the conditions of detention of remand prisoners (see Ananyev and Others, §§ 143-148) and serving prisoners (see Torreggiani and Others, cited above, §§ 65-69). Other leading judgments on the matter followed the same approach (see Iacov Stanciu, cited above, §§ 171-179; Mandić and Jović, cited above, §§ 72-76; and Štrucl and Others, cited above, § 80). Moreover, the same standard was applied in more recent case-law with regard to Russian correctional colonies (see Butko v. Russia, no. 32036/10, § 52, 12 November 2015; for the previous case-law see, for example, Sergey Babushkin v. Russia, no. 5993/08, § 56, 28 November 2013 and cases cited therein). (ii) Whether the allocation of personal space below the minimum requirement creates a presumption or in itself leads to a violation of Article 3 (α) The relevant case-law 116. In assessing whether there has been a violation of Article 3 on account of an extreme lack of personal space in detention the Court has not always been consistent with regard to the question whether the allocation of personal space falling below 3 sq. m leads in itself to a violation of Article 3 or whether it creates a presumption of a violation, which could be rebutted by other relevant considerations. Different approaches can be distinguished in this respect. 117. First, in a number of cases the finding that a detainee had disposed of less than 3 sq. m of personal space in itself led to the conclusion that there had been a violation of Article 3 (see, for example, Sulejmanovic, cited above, § 43; Trepashkin v. Russia (no. 2), no. 14248/05, § 113, 16 December 2010; Mandić and Jović, cited above, § 80; Lin v. Greece, no. 58158/10, §§ 53-54, 6 November 2012; Blejuşcă v. Romania, no. 7910/10, §§ 43-45, 19 March 2013; Ivakhnenko v. Russia, no. 12622/04, § 35, 4 April 2013; A.F. v. Greece, no. 53709/11, §§ 77-78, 13 June 2013; Kanakis v. Greece (no. 2), no. 40146/11, §§ 106-107, 12 December 2013; Gorbulya v. Russia, no. 31535/09, §§ 64-65, 6 March 2014; and T. and A. v. Turkey, no. 47146/11, §§ 96-98, 21 October 2014). 118. There are also cases where the Court has held that personal space allocated to a detainee below 3 sq. m was a violation of Article 3, and then examined other conditions of detention only as further aggravating circumstances (see, for example, Torreggiani and Others, cited above, § 77; and Vasilescu, cited above, §§ 100-104). 119. Another approach is based on the “strong presumption” test set out in the Ananyev and Others pilot judgment (cited above). On the basis of a thorough analysis of its previous case-law on the matter, in the Ananyev and Others judgment, the Court set out the following test for overcrowding: (1) each detainee must have an individual sleeping place in the cell; (2) each must dispose of at least 3 sq. m of floor space; and (3) the overall surface area of the cell must be such as to allow detainees to move freely between items of furniture. It stressed that the absence of any of the above elements created in itself a strong presumption that the conditions of detention amounted to degrading treatment and were in breach of Article 3 (see Ananyev and Others, cited above, § 148). 120. Similarly to the “strong presumption” test, in the Orchowski pilot judgment (cited above, § 123) the Court emphasised that all situations in which a detainee was deprived of the minimum of 3 sq. m of living space inside his or her cell would be regarded as giving rise to a strong indication that Article 3 had been violated (see further Olszewski v. Poland, no. 21880/03, § 98, 2 April 2013). Moreover, the “strong presumption” test has been reiterated in several of the above-mentioned pilot judgments on the question of prison overcrowding (see Neshkov and Others, cited above, § 232; and Varga and Others, cited above, §§ 74 and 77). 121. In line with that approach, the finding of a violation of Article 3 was based on the assessment whether or not, in the circumstances, “a strong presumption” of a violation was rebutted by other cumulative effects of the conditions of detention (see Orchowski, cited above, § 135; Ananyev and Others, cited above, § 166; Lind v. Russia, no. 25664/05, §§ 59-61, 6 December 2007; Kokoshkina v. Russia, no. 2052/08, §§ 62-63, 28 May 2009). Accordingly, in a number of post- Ananyev cases concerning various factual circumstances, the Court consistently examined the cumulative effects of the conditions of detention before reaching a final conclusion as to the alleged violation of Article 3 on account of prison overcrowding (see, for example, Idalov, cited above, § 101; Iacov Stanciu, cited above, §§ 176-178; Asyanov v. Russia, no. 25462/09, § 43, 9 October 2012; Nieciecki v. Greece, no. 11677/11, §§ 49-51, 4 December 2012; Yefimenko v. Russia, no. 152/04, §§ 80-84, 12 February 2013; Manulin v. Russia, no. 26676/06, §§ 47-48, 11 April 2013; Shishkov v. Russia, no. 26746/05, §§ 90-94, 20 February 2014; Bulatović v. Montenegro, no. 67320/10, §§ 123-127, 22 July 2014; Tomoiagă v. Romania (dec.), no. 47775/10, §§ 22-23, 20 January 2015; Neshkov and Others, cited above, §§ 246-256; Varga and Others, cited above, § 88; and Mironovas and Others v. Lithuania, nos. 40828/12, 29292/12, 69598/12, 40163/13, 66281/13, 70048/13 and 70065/13, §§ 118-123, 8 December 2015). (β) The approach to be taken 122. In harmonising the above divergences, the Court will be guided by the general principles of its well-established case-law under Article 3 of the Convention. In this connection it would reiterate that according to this case-law the assessment of the minimum level of severity for any ill-treatment to fall within the scope of Article 3 is, in the nature of things, relative (see paragraphs 97-98 above). The assessment of this minimum, as emphasised ever since the Ireland v. the United Kingdom case (cited above, § 162), will depend on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see paragraph 97 above). 123. Accordingly, the Court’s assessment whether there has been a violation of Article 3 cannot be reduced to a numerical calculation of square metres allocated to a detainee. Such an approach would, moreover, disregard the fact that, in practical terms, only a comprehensive approach to the particular conditions of detention can provide an accurate picture of the reality for detainees (see paragraphs 62-63 above). 124. Nevertheless, having analysed its case-law and in view of the importance attaching to the space factor in the overall assessment of prison conditions, the Court considers that a strong presumption of a violation of Article 3 arises when the personal space available to a detainee falls below 3 sq. m in multi-occupancy accommodation. 125. The “strong presumption” test should operate as a weighty but not irrebuttable presumption of a violation of Article 3. This in particular means that, in the circumstances, the cumulative effects of detention may rebut that presumption. It will, of course, be difficult to rebut it in the context of flagrant or prolonged lack of personal space below 3 sq. m. The circumstances in which the presumption may be rebutted will be set out below (see paragraphs 130-135). 126. It follows that, when it has been conclusively established that a detainee disposed of less than 3 sq. m of floor surface in multi-occupancy accommodation, the starting point for the Court’s assessment is a strong presumption of a violation of Article 3. It then remains for the respondent Government to demonstrate convincingly that there were factors capable of adequately compensating for the scarce allocation of personal space. The cumulative effect of those conditions should inform the Court’s decision whether, in the circumstances, the presumption of a violation is rebutted or not. 127. With regard to the methodology for that assessment, the Court refers to its well-established standard of proof in conditions-of-detention cases (see, for example, Ananyev and Others, cited above, §§ 121-125). In this context the Court is particularly mindful of the objective difficulties experienced by applicants in collecting evidence to substantiate their claims about conditions of their detention. Still, in such cases applicants must provide a detailed and consistent account of the facts complained of (ibid. § 122). In certain cases applicants are able to provide at least some evidence in support of their complaints. The Court has considered as evidence, for example, written statements by fellow inmates or if possible photographs provided by applicants in support of their allegations (see, for example, Golubenko v. Ukraine (dec.), no. 36327/06, § 52, 5 November 2013, and cases cited therein; see further Tehrani and Others v. Turkey, nos. 32940/08, 41626/08 and 43616/08, § 88, 13 April 2010). 128. Once a credible and reasonably detailed description of the allegedly degrading conditions of detention, constituting a prima facie case of ill-treatment, has been made, the burden of proof is shifted to the respondent Government who alone have access to information capable of corroborating or refuting these allegations. They are required, in particular, to collect and produce relevant documents and provide a detailed account of an applicant’s conditions of detention. Relevant information from other international bodies, such as the CPT, on the conditions of detention, as well as the competent national authorities and institutions, should also inform the Court’s decision on the matter (see further Ananyev and Others, cited above, §§ 122-125; and Neshkov and Others, cited above, §§ 71-91). (iii) Factors which may compensate for the scarce allocation of personal space 129. In view of its findings above (see paragraphs 124-125 above), the Court has to determine which factors may compensate for the scarce allocation of personal space to a detainee, and thus rebut the strong presumption of a violation of Article 3 arising where the detainee disposes of less than 3 sq. m of personal space in multi-occupancy accommodation in prisons. 130. The Court firstly notes, in the light of its post- Ananyev case-law, that normally only short, occasional and minor reductions in the required personal space will be such as to rebut the strong presumption of a violation of Article 3. This was, for example, the case in Fetisov and Others (cited above, §§ 134-138) where a prisoner disposed of approximately 2 sq. m of floor surface for nineteen days (see further Dmitriy Rozhin, cited above, §§ 52-53), or Vladimir Belyayev (cited above, §§ 33-36) where a prisoner disposed of 2.95 sq. m of personal space for a period of ten days, and then non-consecutively 2.65 sq. m for a period of two days and 2.97 sq. m for a period of twenty-six days. Moreover, referring to its case-law in Fetisov and Others and Dmitriy Rozhin, the Court found no violation of Article 3 in the Kurkowski case (cited above, §§ 66-67) where the applicant disposed of approximately 2.1 sq. m of floor space for four days, and then subsequently 2.6 sq. m of floor space for another four days. 131. Nevertheless, the Court has already held that, while the length of a detention period may be a relevant factor in assessing the gravity of suffering or humiliation caused to a detainee by the inadequate conditions of his or her detention, the relative brevity of such a period alone will not automatically remove the treatment complained of from the scope of Article 3 if other elements are sufficient to bring it within the scope of that provision (see, for example, Vasilescu, cited above, § 105; Neshkov and Others, cited above, § 249; and Shishanov, cited above, § 95). 132. The Court would further note that in other cases concerning the inadequate allocation of personal space to detainees it examined whether the reductions in the required personal space were accompanied by sufficient freedom of movement and adequate out-of-cell activities, as well as confinement in, viewed generally, an appropriate detention facility (see, for example, Samaras and Others, cited above, §§ 63-65; and Tzamalis and Others, cited above, §§ 44-45). The examples of cases in which the scarce allocation of personal space did not give rise to a violation of Article 3 include: Andrei Georgiev v. Bulgaria, no. 61507/00, §§ 57-62, 26 July 2007; Alexov v. Bulgaria, no. 54578/00, §§ 107-108, 22 May 2008; and Dolenec, cited above, §§ 133-136. In the Court’s view, the strong presumption of a violation of Article 3 arising from the allocation of less than 3 sq. m in multi-occupancy accommodation will normally be capable of being rebutted only where the requirements are cumulatively met, namely where short, occasional and minor reductions of personal space are accompanied by sufficient freedom of movement outside the cell and adequate out-of-cell activities and confinement in what is, when viewed generally, an appropriate detention facility (see, mutatis mutandis, Varga and Others, cited above, § 77; and Mironovas and Others, cited above, § 122). 133. With regard to the question of sufficient freedom of movement, in particular, in the Ananyev and Others case (cited above, §§ 150-152) the Court has referred to the relevant CPT standards according to which all prisoners, without exception, must be allowed at least one hour of exercise in the open air every day and preferably as part of a broader programme of out-of-cell activities, bearing in mind that outdoor exercise facilities should be reasonably spacious and whenever possible offer shelter from inclement weather (see further Neshkov and Others, cited above, § 234). Indeed, according to the relevant international standards prisoners should be able to spend a reasonable part of the day outside their cells, engaged in purposeful activity of a varied nature (work, recreation, education). Regimes in establishments for sentenced prisoners should be even more favourable (see further paragraphs 48, 53, 55 and 59 above). 134. Lastly, with regard to the overall appropriateness of the detention facility, the Court refers to general aspects of detention identified in its case-law (see further Ananyev and Others, cited above, §§ 153-159; and Neshkov and Others, §§ 237-244; see further Iacov Stanciu, cited above, §§ 173-179; and Varga and Others, cited above, §§ 80-92) and the relevant international standards (see paragraphs 48, 53, 55, 59 and 63-64 above). Accordingly, in addition to sufficient freedom of movement and adequate out-of-cell activities, no violation of Article 3 would be found where no other aggravating circumstance arises with regard to general conditions of an applicant’s detention (see, for instance, the approach in Alver v. Estonia, no. 64812/01, § 53, 8 November 2005; Andrei Georgiev, cited above, § 61; and Dolenec, cited above, § 134). 135. It follows from the above that, when considering whether measures of compensation for the scarce allocation of personal space below 3 sq. m of floor surface in multi-occupancy accommodation are capable of rebutting the strong presumption of a violation of Article 3, the Court will have regard to factors such as: the time and extent of restriction; freedom of movement and adequacy of out-of-cell activities; and general appropriateness of the detention facility. (c) Summary of relevant principles and standards for the assessment of prison overcrowding 136. In the light of the considerations set out above, the Court confirms the standard predominant in its case-law of 3 sq. m of floor surface per detainee in multi-occupancy accommodation as the relevant minimum standard under Article 3 of the Convention. 137. When the personal space available to a detainee falls below 3 sq. m of floor surface in multi-occupancy accommodation in prisons, the lack of personal space is considered so severe that a strong presumption of a violation of Article 3 arises. The burden of proof is on the respondent Government which could, however, rebut that presumption by demonstrating that there were factors capable of adequately compensating for the scarce allocation of personal space (see paragraphs 126-128 above). 138. The strong presumption of a violation of Article 3 will normally be capable of being rebutted only if the following factors are cumulatively met: (1) the reductions in the required minimum personal space of 3 sq. m are short, occasional and minor (see paragraph 130 above): (2) such reductions are accompanied by sufficient freedom of movement outside the cell and adequate out-of-cell activities (see paragraph 133 above); (3) the applicant is confined in what is, when viewed generally, an appropriate detention facility, and there are no other aggravating aspects of the conditions of his or her detention (see paragraph 134 above). 139. In cases where a prison cell – measuring in the range of 3 to 4 sq. m of personal space per inmate – is at issue the space factor remains a weighty factor in the Court’s assessment of the adequacy of conditions of detention. In such instances a violation of Article 3 will be found if the space factor is coupled with other aspects of inappropriate physical conditions of detention related to, in particular, access to outdoor exercise, natural light or air, availability of ventilation, adequacy of room temperature, the possibility of using the toilet in private, and compliance with basic sanitary and hygienic requirements (see paragraph 106 above). 140. The Court also stresses that in cases where a detainee disposed of more than 4 sq. m of personal space in multi-occupancy accommodation in prison and where therefore no issue with regard to the question of personal space arises, other aspects of physical conditions of detention referred to above (see paragraphs 48, 53, 55, 59 and 63-64 above) remain relevant for the Court’s assessment of adequacy of an applicant’s conditions of detention under Article 3 of the Convention (see, for example, Story and Others v. Malta, nos. 56854/13, 57005/13 and 57043/13, §§ 112-113, 29 October 2015). 141. Lastly, the Court would emphasise the importance of the CPT’s preventive role in monitoring conditions of detention and of the standards which it develops in that connection. The Court reiterates that when deciding cases concerning conditions of detention it remains attentive to those standards and to the Contracting States’ observance of them (see paragraph 113 above). 3. Application of the above principles in the present case 142. The Court observes at the outset that, although the problem of prison overcrowding has been examined in several cases against Croatia in which a violation of Article 3 was found (see Cenbauer v. Croatia, no. 73786/01, ECHR 2006-III; Testa v. Croatia, no. 20877/04, 12 July 2007; Štitić v. Croatia, no. 29660/03, 8 November 2007; Dolenec, cited above; Longin, cited above; and Lonić v. Croatia, no. 8067/12, 4 December 2014), it has not so far considered that conditions of detention in Croatia disclosed a structural problem from the standpoint of Article 3 of the Convention (see, by contrast, paragraphs 94-95 above). Moreover, none of the cited cases concerned the conditions of detention in Bjelovar Prison which give rise to the applicant’s complaints in the present case. With regard to the conditions of detention in Bjelovar Prison the Court has so far examined one case, in which it found no violation of Article 3 (see Pozaić, cited above). 143. The present case does not raise a structural issue concerning the conditions of detention in Croatia. The Court’s task is to address the applicant’s particular complaint of overcrowding in Bjelovar Prison, where he was serving a prison sentence in the period between 16 October 2009 and 16 March 2011 (see Polufakin and Chernyshev v. Russia, no. 30997/02, §§ 155-156, 25 September 2008). 144. The applicant in particular complained that for several non-consecutive periods, amounting in total to fifty days, including a period of twenty-seven consecutive days, he disposed of less than 3 sq. m of personal space, and that there were also several non-consecutive periods in which he was allocated between 3 and 4 sq. m of personal space in the cells (see paragraph 15 above). 145. In view of the relevant test enunciated above (see paragraphs 136-139 above), the Court will address the applicant’s complaints separately with regard to the period in which he disposed of less than 3 sq. m of personal space, and the period in which he was allocated between 3 and 4 sq. m of personal space in Bjelovar Prison. (a) Period in which the applicant disposed of less than 3 sq. m of personal space (i) Whether the strong presumption of a violation of Article 3 arises in the present case 146. The Court notes that the particular details of the personal space allocated to the applicant are based on the documentation provided by the respondent Government which the applicant did not contest (see paragraph 17 above). Specifically, during his stay in Bjelovar Prison, which lasted for one year and five months (see paragraphs 13-14 above), the applicant was detained in four cells in which he had between 3 and 6.76 sq. m of personal space. Only during the following non-consecutive periods did he have personal space which fell below 3 sq. m, by 0.45 and 0.38 sq. m: on 21 April 2010 (one day – 2.62 sq. m), and between 3 and 5 July 2010 (three days – 2.62 sq. m); 18 July and 13 August 2010 (twenty-seven days – 2.62 sq. m); 31 August and 2 September 2010 (three days – 2.55 sq. m); 19 and 26 November 2010 (eight days – 2.55 sq. m); 10 and 12 December 2010 (three days – 2.62 sq. m); 22 and 24 December 2010 (three days – 2.62 sq. m); and 24 and 25 February 2011 (two days – 2.62 sq. m). 147. There were also certain periods in which there were reductions in the minimum required personal space of 3 sq. m by 0.08, 0.04 and 0.01 sq. m (see paragraph 17 above). Although such reductions are not of the same degree and extent as those noted above, particularly given that some of them can hardly be demonstrated and distinguished in terms of space, and are therefore not decisive for the determination of the case at issue, the Court considers that they cannot be ignored in the overall assessment of conditions of the applicant’s confinement in Bjelovar Prison. 148. In view of these findings, and the relevant principles enunciated in its case-law (see paragraph 137 above), the Court finds that a strong presumption of a violation of Article 3 arises in the case at issue. Accordingly, the question to be answered is whether there were factors capable of rebutting that presumption. (ii) Whether there were factors capable of rebutting the strong presumption of a violation of Article 3 149. The Court notes that the relevant reductions in the applicant’s personal space below 3 sq. m were of relatively short duration. This is in particular true as to single non-consecutive periods of one (2.62 sq. m), two (2.62 sq. m) and eight days (2.55 sq. m), three non-consecutive periods of three days during which the applicant had 2.62 sq. m of personal space, and one period of three days during which the applicant had 2.55 sq. m of personal space. The Court notes, however, that there was also a period of twenty-seven days (between 18 July and 13 August 2010) in which the applicant disposed of 2.62 sq. m of personal space (see paragraph 146 above). 150. In these circumstances, sharing the Chamber’s concerns with regard to the period of twenty-seven days, the Court will first consider whether that period could be regarded as a short and minor reduction in the required personal space. (α) The period of twenty-seven days 151. In this connection the Court observes that in a comparably similar case of Vladimir Belyayev (cited above), concerning several non-consecutive periods of reductions in the applicant’s personal space below 3 sq. m, the longest period lasted twenty-six days during which the applicant disposed of 2.97 sq. m of personal space (see paragraph 130 above). However, in the case at issue the applicant disposed of 2.62 sq. m of personal space for a period of twenty-seven days (see paragraph 146 above). 152. These circumstances are sufficient for the Court to conclude that the period of twenty-seven days when the applicant had only 2.62 sq. m at his disposal cannot call into question the strong presumption of a violation of Article 3. 153. Accordingly, the Court finds that in the period of twenty-seven days in which he disposed of less than 3 sq. m of personal space in Bjelovar Prison, the conditions of the applicant’s detention subjected him to hardship going beyond the unavoidable level of suffering inherent in detention and thus amounting to degrading treatment prohibited by Article 3 of the Convention. (β) The remaining periods 154. As regards the remaining periods which were of short duration and in respect of which the strong presumption of a violation of Article 3 of the Convention can accordingly be rebutted on other grounds, the Court must have regard to other relevant factors, namely the possibility of sufficient freedom of movement and out-of-cell activities and the general conditions of the applicant’s detention (see paragraphs 137-138 above). The burden of proving that there were such factors is on the Government. 155. With regard to the question of freedom of movement and out-of-cell activities, the Court notes the Government’s submissions concerning the amenities available for inmates in Bjelovar Prison. The Government explained that the inmates were allowed to move freely outside their cells in the morning and afternoon, and to use the indoor and outdoor facilities of Bjelovar Prison. This in particular included two hours of outdoor exercise and in addition free out-of-cell movement inside the prison between 4 and 7 p.m. The Government also explained in detail the prisoners’ daily regime and described the facilities available in Bjelovar Prison (see paragraphs 19-20 above). 156. In support of their claims the Government provided photographs, floor plans and other relevant documentation related to the available facilities in Bjelovar Prison (see paragraph 21 above). This in particular concerns the photographs, taken in 2007, 2010 and 2011 in the context of the renovation of the prison and visits of various officials to the prison, showing the interior of Bjelovar Prison, the recreation yard, the cells and their sanitary facilities. These photographs correspond to the Government’s description of the relevant facilities available to prisoners. The Government also provided documentation concerning the availability of entertainment for prisoners in Bjelovar Prison, which further supports the claims made in their submissions (see, by contrast, Orchowski, cited above, §§ 125 and 129). 157. For his part, the applicant sought to challenge the Government’s submission only in very general terms insisting on the fact that he had not been engaged in any work. At the same time he did not provide a detailed description disputing the Government’s claims concerning the opportunities for outdoor exercise and other details of the relevant prison regime in Bjelovar Prison (compare Golubenko, cited above, § 61). He conceded the fact that he had had a possibility of three hours per day of movement outside his cell but argued that the outdoor facilities were inadequate and insufficient, particularly given that there was only an open recreation yard (see paragraph 16 above). 158. The Court observes at the outset that the Government’s submissions are very detailed and consistent with their position in the Pozaić case concerning the relevant facilities available to detainees in the same prison at the relevant time (see Pozaić, cited above, §§ 15 and 60; and, by contrast, Idalov, cited above, § 99). Moreover, there is no indication that the relevant materials submitted by the Government were prepared after they had been given notice of the applicant’s complaint. There is therefore no reason for the Court to doubt the authenticity, objectivity and relevancy of such materials (see Sergey Chebotarev v. Russia, no. 61510/09, §§ 40-41, 7 May 2014). 159. On the other hand, in the absence of any detailed information from the applicant about his daily routines at Bjelovar Prison, and regard being had to the materials submitted by the Government on the issue, the Court is unable to accept the applicant’s submissions as sufficiently established or credible (see Ildani v. Georgia, no. 65391/09, § 27, 23 April 2013). It also attaches particular importance to the fact that the applicant never complained at the domestic level about certain aspects of his confinement, such as, in particular, the lack of outdoor exercise or insufficient time for free movement. 160. In view of the above, the Court’s task in the present case is to determine whether it can be ascertained, from the material submitted before it, that the applicant was given sufficient freedom of movement and adequate out-of-cell activities, which were capable of alleviating the situation created by the scarce allocation of personal space. 161. In this connection the Court notes that in the ordinary daily regime in Bjelovar Prison the applicant was allowed the possibility of two hours of outdoor exercise, which is a standard set out in the relevant domestic law (see paragraph 43 above, section 14 (1.9) of the Enforcement of Prison Sentences Act above) and above the minimum standards set out by the CPT (see paragraph 53 above). The photographs available to the Court show the recreation yard, which according to the Government’s undisputed submission, has a surface area of 305 sq. m and includes a lawn and asphalted parts as well as protection from inclement weather and is equipped with various recreational facilities, such as a gym, basketball court and ping-pong table. 162. Furthermore, it is undisputed by the applicant that he was allowed three hours per day of free movement outside his cell within the prison facility. Taking also into account the period of two hours of outdoor exercise, as well as the periods necessary for serving breakfast, lunch and dinner, it cannot be said that the applicant was left to languish in his cell for a significant proportion of his day without any purposeful activity. This is particularly true given the entertainment facilities available in Bjelovar Prison, such as the possibility of watching TV or borrowing books from the local library, as follows from the material available before the Court (compare Valašinas, cited above, § 111). 163. Against the above background, the Court finds that, even taking into account that the applicant was unable to obtain work, which related not only to the objective impossibility (see paragraph 20 above) but also arguably to the applicant’s previous behaviour (see paragraph 13 above), the possibility of free out-of-cell movement and the facilities available to the applicant in Bjelovar Prison could be seen as significantly alleviating factors in relation to the scarce allocation of personal space. 164. It remains to be determined whether the applicant was detained in generally appropriate conditions in Bjelovar Prison (see paragraphs 134 and 138 above). The Court is of the view that the above considerations concerning the material available before it hold true for the general conditions of the applicant’s detention. In particular, the Government’s detailed submission is corroborated by relevant evidence (see paragraph 21 above) and the findings of the competent domestic authorities in the applicant’s case, notably the competent judicial authorities, the Ministry of Justice Prison Administration and the Ombudsperson (see paragraphs 25, 28, 30 and 38 above). In this context the Court would note that there is no reason for it to call into question these findings of the competent domestic authorities. It also attaches particular importance to the fact that the applicant did not raise, let alone substantiate, allegations concerning poor hygiene conditions in the cells and poor nutrition, or notably inadequate recreational and educational activities, in his constitutional complaint before the Constitutional Court. 165. Moreover, the applicant’s statements concerning the general conditions of his detention are inconsistent and contrary to the available evidence. Specifically, at one instance the applicant argued that the cells where he had been accommodated were insufficiently equipped with the relevant furniture for every inmate (see paragraph 16 above), whereas elsewhere, when he intended to show that he had not had sufficient freedom of movement inside the cell, he argued that he had been unable to pace normally due to the furniture available to every inmate (see paragraph 80 above), which contradicts his own above-cited statement. Moreover, the applicant argued that the sanitary facilities were in the same room as the living area from which they were not fully separated (see paragraph 16 above), while the photographs and floor plans of the prison dating back to 1993, the authenticity and relevancy of which are not in dispute, show that the prison cells in Bjelovar Prison were equipped with a fully partitioned sanitary facility. 166. Likewise, the Court observes that it appears from the material available to it that the food served to the prisoners was regularly inspected by the prison doctor and the competent State authorities, and that prisoners were served three meals per day which, on the basis of the menu presented by the Government, do not appear substandard or inadequate (compare Alexov, cited above, § 106; and, by contrast, Kadiķis v. Latvia (no. 2), no. 62393/00, § 55, 4 May 2006, where prisoners had only one meal per day). Moreover, prisoners had free access to the sanitary facilities and there is no issue with regard to the access to natural light and fresh air in the cell. 167. There was also, as it appears from the available materials, a possibility to shower three times per week (see paragraph 26 above; see further paragraph 55 above, Rule 19.4 of the European Prison Rules; and by contrast Shilbergs v. Russia, no. 20075/03, § 97, 17 December 2009, where the applicant had a possibility to shower no more than once every ten days). The facilities of Bjelovar Prison were constantly renovated and maintained, including in the period before and during the applicant’s stay in that prison (see paragraphs 18 and 38 above). In this connection the Court notes the photographs, the authenticity of which is not in dispute, showing the interior of Bjelovar Prison, the recreation yard, the cells and their sanitary facilities, which appear to be in an adequate state of repair and cleanliness (see, by contrast for example, Zuyev v. Russia, no. 16262/05, § 59, 19 February 2013), and which accordingly correspond to the Government’s description of the relevant facilities available to prisoners. 168. In view of the above, the Court considers that the applicant was detained in generally appropriate conditions in Bjelovar Prison. 169. Against the above background, as regards the other periods during which the applicant disposed of less than 3 sq. m of personal space, the Court finds that the Government have rebutted the strong presumption of a violation of Article 3. Those non-consecutive periods can be regarded as short and minor reductions in personal space, during which sufficient freedom of movement and out-of-cell activities were available to the applicant. Moreover, he was detained in, viewed generally, an appropriate detention facility. 170. The Court therefore considers that it cannot be established that the conditions of the applicant’s detention, although not completely adequate as regards personal space, reached the threshold of severity required to characterise the treatment as inhuman or degrading within the meaning of Article 3 of the Convention. This conclusion is not altered by the fact that the relevant domestic law provided for a standard of 4 sq. m of personal space per detainee, which, as already indicated above, may inform the Court’s decision but cannot be considered a decisive argument for its assessment under Article 3 (see paragraph 111 above). This is particularly true in the context of the Croatian domestic system given that the Constitutional Court, in its assessment of the minimum personal space allocated to a detainee, referred to the Court’s minimum standard of 3 sq. m of personal space set out in its Ananyev and Others judgment (see paragraph 45 above). 171. In the light of the above, the Court considers that the conditions of the applicant’s detention during the remaining periods in which he disposed of less than 3 sq. m of personal space did not amount to degrading treatment prohibited by Article 3 of the Convention. (γ) Conclusion 172. The Court finds that there has been a violation of Article 3 of the Convention with regard to the period of twenty-seven days (between 18 July and 13 August 2010) in which the applicant disposed of less than 3 sq. m of personal space (see paragraph 153 above). 173. Conversely, with regard to the remainder of the periods in which the applicant disposed of less than 3 sq. m (see paragraph 171 above), the Court finds that there has been no violation of Article 3 of the Convention. (b) Periods in which the applicant disposed of between 3 and 4 sq. m of personal space 174. As the applicant also complained about the periods in which his personal space in detention was more than 3 sq. m but less than 4 sq. m, where the space element remains a weighty factor in the Court’s assessment (see paragraph 139 above), it remains to be examined whether the impugned limitation on personal space was incompatible with Article 3. 175. The Court notes that it follows from the undisputed material available before it concerning the details of the applicant’s confinement in Bjelovar Prison that for several non-consecutive periods he disposed of between 3 and 4 sq. m of personal space ranging from 3.38 sq. m to 3.56 sq. m (see paragraph 17 above). 176. In view of the above considerations concerning the remainder of the period in which the applicant disposed of less than 3 sq. m of personal space (see paragraphs 154-171 above), the Court finds that it cannot be considered that the conditions of his detention in the period when he disposed of between 3 and 4 sq. m of personal space amounted to inhuman or degrading treatment within the meaning of Article 3 of the Convention. 177. The Court therefore finds that in this respect there has been no violation of Article 3 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 178. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 179. The applicant claimed 30,000 euros (EUR), plus any tax that may be chargeable, in respect of non-pecuniary damage. 180. The Government considered the applicant’s claim excessive and unsubstantiated. 181. The Court finds that the suffering caused to a person detained in conditions that are so poor as to amount to inhuman or degrading treatment within the meaning of Article 3 of the Convention cannot be made good by a mere finding of a violation; it calls for an award of compensation (see Neshkov and Others, cited above, § 299). When making its assessment with regard to the applicant’s claim, the Court considers that the length of stay in inadequate conditions of detention is an important factor for the assessment of the extent of non-pecuniary damage (see Ananyev and Others, cited above, § 172; Torreggiani and Others, cited above, § 105; and Vasilescu, cited above, § 132). However, the Court also notes certain undeniable efforts made by the domestic authorities to alleviate the problem of overcrowding in Bjelovar Prison, which should be taken into account in determining the amount of any just satisfaction (see Samaras and Others, cited above, § 63 in fine; and Sergey Babushkin, cited above, § 51). Making its assessment on an equitable basis, and taking into account the fact that a violation of Article 3 was found with regard to a period of twenty-seven days in which the applicant disposed of less than 3 sq. m of personal space (see paragraph 172 above), the Court awards the applicant EUR 1,000 plus any tax that may be chargeable to him, in respect of non-pecuniary damage. B. Costs and expenses 182. The applicant claimed EUR 5,025, plus any tax that may be chargeable, for costs and expenses incurred before the domestic authorities and before the Court. 183. The Government considered the applicant’s claim excessive and unsubstantiated. 184. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Regard being had to the documents in its possession and the above criteria, as well as the sum to which the applicant’s lawyer is entitled on account of the granted legal aid (EUR 1,933.50), the Court considers it reasonable to award the sum of EUR 3,091.50, plus any tax that may be chargeable to the applicant, in respect of his costs and expenses before the domestic authorities and before the Court. C. Default interest 185. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court confirmed that 3 sq. m of surface area per detainee in a multi-occupancy cell was the prevalent norm in its case-law, being the applicable minimum standard for the purposes of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. When that area fell below 3 sq. m, the lack of personal space was regarded as so serious that it gave rise to a strong presumption of a violation of Article 3. In the present case, having regard to the documents produced by the Croatian Government and to the applicant’s statements, the Court found that the conditions in which the applicant had been held in Bjelovar Prison were generally appropriate, but that there had been a violation of Article 3 of the Convention for the consecutive period of 27 days during which he had been confined in less than 3 sq. m of personal space. On the other hand, the Court held that there had been no violation of Article 3 in respect of the other, non-consecutive, periods of detention during which the applicant had less than 3 sq. m of personal space or in respect of the periods in which he had personal space of between 3 sq. m and 4 sq. m in Bjelovar Prison. It found in particular that the other periods during which he had disposed of less than 3 sq. m could be regarded as short and minor reductions of personal space, while at the same time the applicant had sufficient freedom of movement and activities outside the cell and was being held in a generally appropriate detention facility. |
452 | Treatment of disabled prisoners | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Suspension of the execution of a sentence on medical grounds 27. Article 720-1-1 of the Code of Criminal Procedure was worded as follows at the material time: “Unless there is a serious risk of reoffending, suspension may also be ordered, regardless of the nature of the sentence or the portion remaining to be served, and for a duration that does not need to be determined, where it has been established that the prisoner has a life-threatening illness or that his or her state of health is incompatible in the long term with continued detention, save in cases where persons detained in a psychiatric institution are admitted to hospital. The suspension may only be ordered if two separate medical opinions concur in finding that the prisoner is in one of the situations set out in the previous paragraph. However, in an emergency where the prisoner ’ s life is at risk, the suspension may be ordered on the basis of a medical certificate issued by the doctor in charge of the medical unit treating the prisoner, or a doctor standing in for him or her ... ” Law no. 2014-896 of 15 August 2014 on adapting sentences to the individual and increasing the effectiveness of criminal penalties, which came into force on 1 October 2014, has amended the system for suspending the execution of sentences. In the case of convicted prisoners, it has, among other things, abolished the requirement for a second medical opinion. Paragraph 2 of Article 720-1-1 of the Code of Criminal Procedure now provides that “ [ t]he suspension may only be ordered if a medical opinion establishes that the prisoner is in one of the situations set out in the previous paragraph ”. In the same paragraph, “where the prisoner ’ s life is at risk” has been removed as a requirement in the event of an emergency. 28. Examining the provision in question, the Court of Cassation specified in a judgment of 28 September 2005 ( Criminal Division, 05-81.010) that the convicted prisoner ’ s condition necessarily required a poor short-term prognosis. In a judgment of 7 January 2009 (Criminal Division, 08-83364) the Court of Cassation held that in rejecting an application by a disabled prisoner for the suspension of his sentence, the Post-Sentencing Division of the Amiens Court of Appeal had not justified its decision on the basis of Article 720-1-1 of the Code of Criminal Procedure since it had not determined, as the applicant ’ s submissions had invited it to do, whether the two expert opinions indicated that the actual conditions of his detention were incompatible in the long term with his state of health. Lastly, in a decision of 26 June 2013 ( Criminal Division, 12 - 88284) the Court of Cassation refused to refer a question relating to Article 720-1-1 of the Code of Criminal Procedure to the Constitutional Council for a preliminary ruling on constitutionality. The question concerned the alleged interference with the ordinary courts ’ duty to protect personal liberty in so far as they were bound by the medical experts ’ two concurring opinions; the fact that the measure could be granted only if there was no serious risk of reoffending; and the lack of clarity of the provision in terms of respect for human dignity. The Criminal Division found that the question raised had no serious merit, for the following reasons : “... firstly, ... the person concerned has been deprived of his liberty for the purpose of serving a sentence deemed necessary by the judicial authority, a suspension of the sentence on medical grounds being an exceptional measure, and secondly, ... even where two expert opinions concur in finding that the prisoner is not in one of the situations provided for in Article 720-1-1 [ of the Code of Criminal Procedure ], it is reasonable to envisage that the court dealing with an application for suspension of a sentence would be competent either to order a further opinion or to determine whether the continued detention of the person concerned would amount to inhuman or degrading treatment, for example because it would be incompatible with the guarantees to which he is entitled for the protection of his health.” 29. In his annual activity report for 2012 the Inspector General of Detention Facilities ( contrôleur général des lieux de privation de liberté – CGLPL) included a chapter on “ old age, invalidity and disability in prison ”, in which he noted that people in these categories were excluded by the very nature of prison architecture and the organisation of everyday prison life. He explained that cells for prisoners with reduced mobility were often located on the ground floor, which was normally set aside for prisoners under the “closed doors” regime; this was not conducive to any communication. The daily routine was a further source of anxiety : “ fear of being confronted with violence, fear of a primarily young population, fear of going to the exercise yard. Boredom too, since an occupational activity is no longer accessible to them and the activities available are unsuited to their physical condition. And finally, the humiliation of being dependent. Although many facilities have signed agreements with associations providing personal assistance, there are still too many prisons where the duties of ‘ attendant ’ or domestic help are performed by other prisoners employed by the prison management – the ‘ prison orderlies ’; this situation is unacceptable on account of the risks of blackmail and the lack of appropriate training and remuneration .” The CGLPL advocated a rethink of the architecture and living arrangements at detention facilities, but emphasised that consideration should be given to allowing these types of prisoners to serve their sentences in a non-custodial environment. He also recommended that “ the suspension of sentences on medical grounds be better adapted to the reality of the situations it may cover”. Among the targets of his criticism in that respect were the restrictive conditions laid down in Article 720-1-1 of the Code of Criminal Procedure, by which the execution of a sentence could be suspended only in extremely serious cases and as a short-term measure. He added : “ It must be noted that the experts assigned to assess whether the prisoner ’ s health is compatible with continued detention do not take sufficient account of the physical conditions of incarceration, quite simply because they are entirely unaware of the constraints it entails ”. He recommended that Parliament amend Article 720-1-1 “ to introduce a third possible criterion besides the risk to life and the long-term incompatibility of the prisoner ’ s health with detention, namely granting a request for suspension of a sentence where the treatment required by the prisoner cannot be provided either in detention or even during periods of ordinary or escorted prison leave, because of its repetitive and regular nature ”. 30. On 20 November 2013 the Justice/Health Interministerial Working Group submitted a report to the Ministers of Justice and Health on “ Adjustments of sentence and suspensions of sentence on medical grounds ”, which recommended, among other things, extending the scope of the suspension of sentences on medical grounds by giving greater consideration to disabilities in the examination of such applications : “ The working group agrees on the need to specify in the practical guide that the suspension of a sentence on medical grounds is applicable to individuals whose disability is incompatible in the long term with detention and that due regard should be had in this assessment to the actual conditions of ordinary detention ( reference is made to the case-law of the European Court of Human Rights and the Court of Cassation). It is recommended that the experts be provided with all possible means in order to determine whether the prisoner ’ s health is compatible with the conditions of ordinary detention. While some members of the group wanted to include a specific reference to disability in the text of Article 720-1-1 of the Code of Criminal Procedure, others are of the view that disability can already be taken into account under the existing provisions.” B. Relevant provisions on health care 31. Reference is made to the judgments in Mouisel v. France ( no. 67263/01, § 26, ECHR 2002 - IX) and Rivière v. France (no. 33834/03, § 29, 11 July 2006) for the provisions governing health care in prison. It should be noted that health care for prisoners has been the responsibility of the public hospital service since the Law of 18 January 1994 came into force. Outside appointments and emergency and short-term hospital admissions take place at the hospital to which the UCSA – an internal unit of the hospital based in the detention facility – is attached. Any treatment that is unavailable at the UCSA is provided either at the local hospital or in one of the eight secure interregional hospital units ( unités hospitalières sécurisées interrégionales – UHSI) or the National Public Health Institution in Fresnes (EPSNF). The UHSIs are responsible for providing medical and surgical treatment for detainees referred by UCSA medical personnel for stays of more than forty-eight hours. The EPSNF has medical, aftercare and rehabilitation departments and admits prisoners whose health requires an extended hospital stay or major therapy ( see Guide du prisonnier (Prisoner ’ s handbook), OIP, 2012, section on “ La médecine générale ” ). In its 2014 annual report the Court of Audit included a chapter entitled “ Detainees ’ health: further progress still essential”, in which it outlined the arrangements for admitting detainees to hospital and noted, among other things, the “ poor take-up of somatic hospital capacity ”, and especially the under -occupation of the UHSIs. The report also mentions “ an approach to health care that is all too often dependent on the operation of the prison system ”, and concludes that “ in addition to the rigidity and constraints of the prison environment, the available treatment is still inadequate, the need for more modern premises and equipment is not satisfied and the forms of cooperation between the parties concerned are fragile and incomplete ”. Furthermore, it calls for “ the development of a stronger and clearer public ‑ health policy ” through the assistance of regional health agencies, which “ assess and identify detainees ’ health-care needs. They define and regulate the provision of health care in a prison environment.” 32. Article D. 82 of the Code of Criminal Procedure provides that prisoners can be transferred either at the request of the governor of the prison where they are serving their sentence or at their own request. A Prison Service circular of 21 February 2012 on the assignment of detainees to custodial facilities specifies the procedure for applying for a transfer. Article D. 360 of the same Code deals with transfers of prisoners to a facility better equipped to cater for their condition. Article R. 57-8-6 of the Code concerns the rights of prisoners with disabilities. The two last-mentioned provisions are worded as follows: Article D. 360 “ A transfer to a more appropriate custodial facility may be requested, in accordance with the fourth paragraph of Article D. 382, for detainees whose physical conditions of detention in the facility where they are being held are not suited to their medical condition, and for prisoners requiring special medical care. The regional director shall order any transfer within his or her region, subject to the conditions laid down in Article D. 301, with the aim of enabling a sick prisoner to receive treatment in more favourable conditions. In the case of remand prisoners, the judge dealing with the investigation must have given his or her prior consent to the transfer, after being informed of the likely duration of the treatment envisaged.” Article R. 57-8-6 ( introduced by Decree no. 2010-1634 of 23 December 2010 ) “ Any detainees who are prevented on a long-term basis, as a result of functional limitations of the upper limbs in connection with a physical disability, from independently performing actions linked to treatment prescribed by a doctor may designate another person, including a fellow detainee, to help him or her carry out these actions during periods when professional care staff are absent. The person thus designated must give express consent. ... The head of the facility may oppose the designation of a particular helper for reasons relating, for example, to personal safety or the preservation of order within the facility.” [ See also the methodological guide to health care for persons detained by the judicial authorities, Ministry of Justice and Ministry of Social Affairs and Health, 2012, p. 90] C. Report on the CGLPL ’ s visit to Uzerche Prison ( October 2010) 33. The CGLPL published a detailed report following his visit to Uzerche Prison, an institution opened in 1990; only some parts of the report are relevant to the present case. It does not specifically mention problems linked to the situation for people with disabilities. With regard to the more general question of personal hygiene, the CGLPL observed that “no particular difficulties for prisoners have been noted. The showers are permanently accessible for prisoners under the ‘ open doors ’ regime, and once a day for prisoners under the ‘ closed doors ’ regime in B building.” He noted that the exercise yards were similar in all the wings of the prison, comprising a yard, two or three concrete benches, a concrete table-tennis table and an area for playing boules. They had “ Turkish” (squat) toilets, which were inaccessible for prisoners with certain types of disability. In buildings C and D, there had for a long time been unrestricted access to the exercise yard, and prisoners had been able to come and go as they pleased. This was no longer the case. Set opening times had been introduced, and prisoners were required to enter the yard at the start of the time slot and leave at the end, with no other option : from 9 to 11 a.m., 2 to 4 p.m. and 4 to 5.30 p.m. The report also noted that “no physiotherapists have visited the prison since the retirement in 2009 of the person who previously performed this service. Several prisoners have complained about this. ” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 34. The applicant complained that he had been subjected to treatment in breach of Article 3 of the Convention on account of the inaccessibility of health care while in detention. The provision relied on by the applicant reads : “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 35. The Government requested that the application be rejected as manifestly ill-founded. 36. The Court considers that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 37. The applicant submitted firstly that the conditions of his imprisonment undermined his dignity, and drew attention in that connection to the position taken by the judge responsible for the execution of sentences and the Post-Sentencing Division and challenged by the Government, to the effect that his continued detention was conditional on the availability of premises catering for his disability and the accessibility of appropriate treatment. The Government ’ s position was all the more unacceptable as the courts in question had merely examined the most immediately visible aspects of his situation, namely the configuration of the premises and the treatment available to detainees. Referring to the reports by the CGLPL and the Justice/Health Interministerial Working Group mentioned in paragraphs 29 and 30 above, he submitted that the competent authorities ’ assessment of dignity was limited to the question of the provision of care rather than covering practical living conditions. However, his state of complete dependence on the prison orderly, the conditions in which he took a shower, the security measures imposed on him whenever he was escorted outside the prison and the full body searches all amounted to repeated humiliation undermining his personality. All these measures had been found to be inhuman and degrading by the Court ( the applicant cited Vincent v. France, no. 6253/03, 24 October 2006; Khider v. France, no. 39364/05, 9 July 2009; and Duval v. France, no. 19868/08, 26 May 2011), and the same conclusion had to be reached in his case, in view of the cumulative effect of the ill-treatment and his disability, as well as the complete lack of justification for the security measures imposed on him. 38. Regarding the quality of care provided, the applicant observed that the Government had acknowledged that no physiotherapy sessions had been available until 2012 and had provided no details as to their frequency after that time. He asserted that the treatment provided was derisory ( see paragraph 21 above ), even though the experts and doctors had repeatedly stressed the consequences of failure to provide suitable treatment for his condition. A transfer to Roanne Prison would not guarantee him any better treatment. The cells set aside there for prisoners with reduced mobility were all taken by severely disabled prisoners. The applicant also noted that one prisoner in a wheelchair had committed suicide in that prison in November 2012, and that in any event the doctors had recommended that he be admitted to a specialist facility for his rehabilitation. 39. As to whether his continued detention was appropriate, the applicant complained that Article 720-1-1 of the Code of Criminal Procedure had been read in a restrictive manner that conflated dignified conditions of detention with sufficiency of treatment. Furthermore, the Court of Appeal had based its findings on a ground not provided for by the Article in question for refusing a request for suspension of execution of a sentence, namely failure to acknowledge the offence. Relying on Gülay Çetin v. Turkey (no. 44084/10, 5 March 2013), he emphasised that there were no clear provisions of domestic law that required consideration to be given to personal capacity to cope with detention regardless of the quality of treatment needed, or that allowed situations infringing human dignity to carry on indefinitely. The intensity of the ordeal inflicted on a person with disabilities amounted to disregarding the purposes of the sentence, instead turning it into pure retribution and an indiscriminate punishment. The UCSAs ’ task was in no way to remove their patients from the reality of their existence but rather to provide diagnosis and treatment. 40. The Government justified the applicant ’ s continued detention in the light of judgments such as Matencio v. France (no. 58749/00, 15 January 2004) and Vincent ( cited above ), given that it had not been established that he was suffering from a lack of autonomy. They drew attention to the two expert medical opinions finding that his state of health was compatible with detention, provided that he was detained in appropriate conditions. 41. As far as those conditions were concerned, the Government observed that the applicant was held in a cell equipped for people with reduced mobility, where it was possible to move about in a wheelchair. The cell was on the ground floor, thus facilitating access to the exercise yard and the socio-educational area. Stair-free access to the UCSA, the canteens, the visiting rooms and the registry was also possible. 42. The Government stated that the applicant was assisted in his daily activities by a prison orderly. In their additional observations they noted that the prison did not have individual showers, but that there was unrestricted access to the showers. Without indicating the location of the showers or the frequency with which the applicant was able to use them, they submitted that he could choose a time, subject to a maximum of thirteen prisoners per day; furthermore, each shower had a partition so as to ensure privacy. 43. The Government also emphasised the consideration given to the applicant ’ s well-being through access to a physical activity, namely yoga classes. They acknowledged that the sports area was not wheelchair accessible but pointed out that it was possible for the applicant to reach the area using crutches or his walking frame and that in any event he had never gone there. 44. The Government submitted in conclusion that the management had taken every step to reconcile the applicant ’ s disability as far as possible with the imperatives of detention, by enabling him to be as autonomous as possible and ensuring his well-being through cultural and physical activities. 45. The Government contended that the measures taken when the applicant was escorted outside the prison had been justified ( see paragraph 20 above ) in view of the offences of which he had been convicted, his sentence and his attempted escape; the security arrangements were regularly adjusted and reviewed. The body searches were also appropriate in view of the circumstances and could not be considered unjustified simply because of the applicant ’ s condition. 46. With regard to the treatment provided to the applicant, the Government stated that the prison service had provided him with all the facilities required for his disability, including an anti-pressure- sore cushion for the visiting room, an anti-pressure-sore mattress in his cell and a plastic chair for use while taking a shower. They also detailed all the occasions when the applicant had been admitted to hospital or escorted outside the prison ( see paragraph 16 above ), and the steps taken to ensure that a physiotherapist came to Uzerche Prison from September 2012 ( see paragraph 17 above ), submitting in conclusion that the conditions of his detention in relation to his state of health could not be deemed to amount to treatment in breach of Article 3 of the Convention. 2. The Court ’ s assessment (a) General principles ( i ) Duty of care 47. The Court refers to its settled case-law to the effect that the duty of care towards sick prisoners imposes the following specific obligations on the State : to verify that prisoners are fit to serve their sentence, to provide them with the necessary medical treatment and, where appropriate, to adapt the general conditions of detention to their particular state of health. These obligations are set out very clearly in Xiros v. Greece ( no. 1 033/07, § 73, 9 September 2010; for a more recent authority, see Ürfi Çetinkaya v. Turkey, no. 1 9866/04, §§ 87 - 92, 23 July 2013) and may be summarised as follows. 48. With regard to the first obligation, in a State founded on the rule of law fitness for detention is the prerequisite for pursuing the execution of a sentence. Although this cannot be construed as a general obligation to release detainees or transfer them to a civil hospital, even if they are suffering from an illness which is particularly difficult to treat, the Court cannot rule out the possibility that in particularly serious cases situations may arise where the proper administration of criminal justice requires remedies in the form of humanitarian measures. Accordingly, in exceptional cases where the state of a detainee ’ s health is absolutely incompatible with his or her detention, Article 3 may require the release of that person under certain conditions ( see Xiros, cited above, § 74). As regards the second obligation, the lack of appropriate medical care may in principle amount to treatment contrary to Article 3. The Court requires, firstly, the provision of relevant medical support for sick detainees and appropriate medical treatment for their specific ailments. The promptness and frequency with which medical care is provided to such prisoners are two factors to be taken into account in assessing whether they are being treated in a manner compatible with the requirements of Article 3. In particular, these two factors are not assessed by the Court in absolute terms, but with due regard for the prisoner ’ s particular state of health in each case. In general, the worsening of the prisoner ’ s health does not in itself play a decisive role as regards observance of Article 3 of the Convention. The Court examines in each case whether the deterioration of the prisoner ’ s health was attributable to inadequacies in the medical care provided ( ibid., § 75). As regards the third obligation, the Court requires the prison environment to be adapted, where necessary, to the prisoner ’ s specific needs so that he or she can serve the sentence in conditions that do not undermine his or her psychological well-being ( ibid., § 76). ( ii ) Prisoners with disabilities 49. Severe physical disability, like health and age, is a circumstance giving rise to the question of fitness for detention in the light of Article 3 of the Convention ( see Mouisel v. France, no. 6 7263/01, § 38, ECHR 2002 - IX, and Matencio, cited above, § 76 ). 50. Where the national authorities decide to place or maintain a person with disabilities in detention, they should demonstrate special care in guaranteeing such conditions as correspond to the special needs resulting from the detainee ’ s disability (see Price v. the United Kingdom, no. 33394/96, § 25, ECHR 2001-VII; Farbtuhs v. Latvia, no. 4 672/02, § 56, 2 December 2004; and Zarzycki v. Poland, no. 1 5351/03, § 102, 12 March 2013). 51. The detention of a disabled person for a lengthy period in a facility where he or she is unable to move about independently, and in particular leave his or her cell, amounts to degrading treatment proscribed by Article 3 of the Convention ( see Vincent, cited above, § 103, and Cara-Damiani v. Italy, no. 2 447/05, § 72, 7 February 2012). 52. While it is true that the Convention does not in itself guarantee the right to social assistance, the State cannot release itself from its duty to ensure that detention conditions meet the special needs of disabled prisoners by shifting responsibility for their supervision or assistance to fellow inmates ( see Kaprykowski v. Poland, no. 2 3052/05, § 74, 3 February 2009; Grimailovs v. Latvia, no. 6087/03, § 161, 25 June 2013; and lastly, Semikhvostov v. Russia, no. 2 689/12, § 85, 6 February 2014, in which reference is made to the risk of disabled prisoners being stigmatised by receiving assistance from fellow inmates in their everyday activities ). In some cases, relying on assistance from fellow inmates in order to go to the toilet, wash or get dressed or undressed may be degrading or humiliating ( see the case-law cited in Zarzycki, cited above, § 104, and also D.G. v. Poland, no. 4 5705/07, § 147, 12 February 2013). Access to sanitation facilities raises a particular concern under Article 3 of the Convention ( see D.G. v. Poland, cited above, §§ 147 and 150, and Semikhvostov, cited above, § 81). (b) Application of the above principles in the present case 53. The Court observes firstly that it is not disputed that the applicant has a disability which leaves him largely confined to a wheelchair, although it appears that he is sometimes able to move about with the aid of walking sticks or a walking frame ( see paragraph 10 above ). The applicant ’ s complaint should therefore be examined in the light of the principles set out above governing the State ’ s duty of care towards people with disabilities, in view of their vulnerability in dealing with the hardships of detention. ( i ) Continued detention 54. The Court notes that the experts appointed following the application for suspension of the applicant ’ s sentence found that his state of health was compatible with detention provided that he could receive daily physiotherapy. One of them pointed out in his conclusions that physiotherapy could not be provided at Uzerche Prison ( see paragraph 10 above ). The post-sentencing courts subsequently found that the applicant did not satisfy the conditions for having the execution of his sentence suspended, while taking care to note that the prison where he was detained was not suited to his circumstances. The Court of Cassation declared the applicant ’ s subsequent appeal points of law inadmissible. 55. Having regard to the foregoing, the Court observes that it has not been ruled out that the applicant could receive physiotherapy in a prison setting ( contrast Cara-Damiani, cited above, § 74). The Court observes that the applicant ’ s disability was taken into account in the assessment of his application for suspension of his sentence, which was rejected on the basis of concurring medical opinions concluding that his condition was not incompatible in the long term with detention provided that he was given physiotherapy and access to a gym. In addition, the courts found that Uzerche Prison manifestly failed to satisfy the requirements for the applicant ’ s detention regime, in terms of both the premises and the availability of paramedical care ( see paragraphs 11 and 13 above ). The Court notes in that connection the developments in domestic law and in the positions taken by official bodies as to the need to take account of disabilities when considering applications for the suspension of sentences ( see paragraphs 27, 28, 29 and 30 above ). Lastly, it observes that it does not appear from the case file that the applicant ’ s health has deteriorated during his detention or that his disability has worsened as a result of the detention conditions. In particular, the report on the visit to Uzerche Prison by the CGLPL ( see paragraph 33 above ), which does not deal specifically with the situation for people with disabilities, does not suggest that the conditions there are such as render the applicant ’ s continued detention incompatible with Article 3 of the Convention. Furthermore, should the applicant ’ s health deteriorate, French law affords him the opportunity to submit a fresh application to have his sentence suspended on medical grounds, a process that Parliament has recently relaxed with a view to making it easier to use ( see paragraphs 27 and 28 above ). Accordingly, the present case does not concern the question of the applicant ’ s fitness to serve his sentence, but rather the quality of the care provided, and in particular whether the national authorities did everything that could reasonably be expected of them to provide him with the rehabilitative treatment he needed and to offer him some prospect of an improvement in his condition. ( ii ) Quality of treatment 56. The Court observes that there is no dispute between the parties as to the promptness and frequency of the medical treatment provided to the applicant since his transfer to Uzerche Prison, including access to specialist consultations ( see paragraphs 16 and 19 above ), and also as to the medical equipment made available to him, except for the electrostimulation device, the purchase of which, according the applicant, has been blocked by the prison authorities. On this specific point, no substantiated arguments have been submitted to the Court, in particular regarding the reason given by the appropriate authorities for refusing to allow the applicant to purchase such a device himself, which he is apparently in a position to do ( see paragraphs 16 and 22 above ) in the absence of any complaints on his part as to whether the device could be covered by the social-security system ( contrast, for example, V.D. v. Romania, no. 7078/02, §§ 94- 96, 16 February 2010). In view of these circumstances, the Court is unable to adopt a position on this point. 57. With regard to the physiotherapy prescribed by all the doctors who examined the applicant, the Court observes that they unanimously recommended daily rehabilitation sessions and access to a gym. However, the applicant did not receive any paramedical care of this kind until September 2012 – that is, for a period of more than three years following his admission to Uzerche Prison – on account of the lack of qualified staff at the institution. It was also very difficult for him to go to the gym since it was not wheelchair accessible, as the Government explained. The Court would note that the application for suspension of the applicant ’ s sentence was refused subject to his receiving appropriate physiotherapy sessions tailored to his condition, and that the domestic courts pointed out on that occasion that such treatment could not be provided at Uzerche Prison, but in other custodial facilities ( see paragraphs 11 and 13 above ). The UCSA doctors emphasised that the applicant ’ s rehabilitation should take place in a specialist environment ( see paragraph 21 above ). The Court is not in a position to assess whether an ordinary prison without admission to hospital (see paragraph 31 above) would constitute an appropriate setting, but it must ascertain whether measures were taken by the prison authorities to offer the applicant the treatment prescribed by the doctors. 58. In that connection it notes, firstly, that no physiotherapist came to see the applicant at Uzerche Prison between 2009 and September 2012. According to the information supplied by the Government, the interregional director of the Prison Service repeatedly called upon the appropriate health-care authorities to remedy the deficiencies in the provision of physiotherapy at the prison ( see paragraph 17 above ), but it has to be noted that her appeal went unheeded for more than three years. The Court observes that while the responsibility for ensuring the presence of a physiotherapist at the prison lies with a separate authority from the Prison Service, this cannot justify such a lengthy period of inaction and on no account releases the State from its duties towards the applicant. The Court further observes that the Government have not shown that any effort was made to find a solution whereby the applicant could be transferred to another prison or a specialist setting. It cannot accept the Government ’ s argument that the failure to transfer the applicant to such a facility, in particular to Roanne Prison, was entirely his own fault. Admittedly, the applicant ’ s assertion that it would not have possible to provide him with the necessary treatment in that prison can only be regarded as speculation; the parties ’ observations on this issue differ considerably since they referred to the situation at that prison at different times ( see paragraphs 25 and 26 above ). It is likewise true that the applicant did not formally request a transfer but decided against doing so, firstly in June 2010 because, according to the Government, his “main motivation related to the previous decisions of the judicial authorities on requests for suspension of sentences, rather than to the treatment he might receive”, and then in August 2011, for unclear reasons ( see paragraph 26 above ). However, the Court does not consider that this attitude amounted to a refusal of treatment : it notes that in August 2011 the applicant was awaiting the outcome of his court application to have his sentence suspended, which might explain why he did not make any requests to the prison authorities at that time. Furthermore, although Article D. 360 of the Code of Criminal Procedure states that prisoners may request a transfer to another custodial facility more suited to their medical condition, it provides above all that the responsibility for such a transfer lies with the interregional director of the Prison Service, who is to order “ any transfer ... with the aim of enabling a sick prisoner to receive treatment in more favourable conditions ” ( see paragraph 32 above ). However, it does not appear from the case file that any specific measures were taken during that entire period or that any efforts were made to allow the applicant to undergo physiotherapy sessions tailored to his condition, despite the repeated recommendations of the UCSA doctors that he be provided with care in a specialist setting ( see paragraph 21 above ). The attitude of the applicant, who was apparently reluctant to seek a transfer for reasons including the distance from his family (see paragraph 25 above), cannot in itself justify the inaction of the prison and health-care authorities in failing to cooperate ( see paragraph 31 above ) to provide him with the care deemed necessary by the doctors who had examined him. The Court further notes that the physiotherapy he has received since September 2012 is limited to one weekly fifteen-minute session ( see paragraph 21 above ). ( iii ) Conditions of detention 59. Uzerche Prison has a cell for disabled prisoners on the ground floor, near the Outpatient Consultation and Treatment Unit, the canteen, the visiting rooms, the route to the exercise yard, and the socio-educational sector. The Court observes that it has not received any complaints from the applicant about the layout of his cell, which is wheelchair accessible ( contrast Vincent cited above, §§ 101 and 102). Nor has the applicant indicated that he has suffered any hardship in moving around the different wings of the prison, which the Court notes is equipped with a lift that he can use where necessary ( contrast Arutyunyan v. Russia, no. 4 8977/09, §§ 78-79, 10 January 2012). Although it does not appear from the case file that the applicant often leaves his cell, the Court cannot infer from his observations any specific problems attaining the level of severity required for Article 3 to be applicable as far as his movements around the facility are concerned, including access to outdoor exercise. 60. It remains for the Court to examine the part of the complaint concerning : the searches performed on the applicant and the measures taken when he was escorted outside the prison, all of which in his view constituted repeated acts of humiliation; his access to the showers; and the arrangements for assisting him. 61. Firstly, with regard to the body searches and security measures which the applicant was required to undergo whenever he was transferred to hospital, the Court points out that he did not complain about this issue in his initial application, raising it only in his observations, to which the Government responded by providing additional information about the frequency of and reasons for such transfers ( see paragraph 20 above ). It has already acknowledged that measures of this kind may reach the minimum level of severity required by Article 3 to constitute inhuman or degrading treatment ( see Khider, cited above; El Shennawy v. France, no. 51246/08, 20 January 2011; and Duval, cited above ), but it does not consider that this level has been attained in the present case; the Government ’ s additional observations on this issue indicate that the applicant was not searched systematically but on specific occasions during his detention, some of which concerned all prisoners at the facility. Moreover, only two decisions ordering searches when the applicant was escorted from the prison for medical reasons have been produced to the Court. Having regard to the reasons given by the Government to justify these occasional measures ( see paragraph 20 above ), which were not always aimed at the applicant alone, the Court considers that, despite their arduous nature, they do not appear to have attained the requisite level of severity for Article 3 to be applicable. The Court observes in this connection that the conditions and procedures complained of in relation to the transfers and searches of the applicant are not comparable to those observed in other similar cases ( see Duval and El Shenawy, cited above; Mouisel, cited above, §§ 46 and 47; and Hénaf v. France, no. 65436/01, §§ 54 - 58, ECHR 2003 - XI). 62. Secondly, as regards access to the sanitary facilities, and more specifically the showers, the Court observes that the applicant ’ s complaint is that since there are no such facilities in his cell, he is unable to go there unaided but is dependent on the assistance of a fellow inmate, a situation that exposes him to humiliation vis-à-vis the prison orderly in question and other prisoners on account of his incontinence. The Court does not have any information about the precise situation regarding the showers or the frequency with which the applicant can use them. However, it has not been disputed by the Government that he is unable to go there on his own ( see paragraph 23 above ) and that they are not designed to be accessible to people with reduced mobility. It can also be inferred from the applicant ’ s condition that the prisoner responsible for assisting him on a day-to-day basis according to the Government (see paragraph 42 above) has to help him to get washed. This state of affairs, where the showers are not wheelchair accessible and the applicant has to rely on a prison orderly to get washed, has been deemed unacceptable by the CGLPL ( see paragraph 29 above ). Furthermore, while legislation passed in 2009 made it possible for any prisoners with disabilities to designate a helper of their choice ( see paragraph 32 above ), the Court observes that a measure of this kind, assuming that the conditions governing such a choice have been satisfied in the present case, is not sufficient to meet the applicant ’ s needs, since having a shower is an uncomfortable occasion for him in view of his incontinence, the lack of privacy and the role of the prisoner designated to assist him ( see, mutatis mutandis, D.G. v. Poland, cited above, § 177). Indeed, it does not appear from the evidence before the Court that such assistance complements the care provided to the applicant by health-care professionals, or that the prisoner designated to assist him has received the necessary training to perform the actions required to accompany a disabled person. The Court observes in this connection that it has held on several occasions that assistance from a fellow inmate, even on a voluntary basis, does not mean that an applicant ’ s special needs are satisfied and that the State has on that account discharged its obligations under Article 3 of the Convention. It has pointed out that it could not endorse a situation where prison staff evade their safety obligations and duty of care towards the most vulnerable prisoners by making their cellmates responsible for providing them with day-to-day assistance or, where appropriate, emergency care; such a situation gives rise to anxiety and places the prisoner in a position of inferiority vis-à-vis the other prisoners ( see Farbtuhs, cited above, § 60, and D.G. v. Poland, cited above, § 147). ( iv ) Conclusion 63. In the final analysis, the Court takes the view that the applicant ’ s continued detention is not in itself incompatible with Article 3 of the Convention, but that the national authorities have not provided him with the care required to avoid subjecting him to treatment contrary to that provision. In view of his severe disability and the fact that he suffers from urinary and faecal incontinence, the length of time during which he was detained without receiving any rehabilitative treatment, and his inability to take a shower without the help of a fellow prisoner, are factors that have subjected the applicant to hardship exceeding the unavoidable level of suffering inherent in detention. Those circumstances amount to degrading treatment and thus to a breach of Article 3 of the Convention. The absence of any indication that the authorities acted with the intention of humiliating or debasing the applicant does not alter that finding in any way ( see Farbtuhs, cited above, §§ 50 and 60). II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 64. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 65. The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage. 66. The Government submitted that the claim was excessive. In the event of a finding of a violation, the sum of EUR 6, 000 could be awarded to the applicant. 67. In the circumstances of the case, the Court considers it appropriate to award the applicant EUR 7,000 in respect of non-pecuniary damage. B. Costs and expenses 68. The applicant also claimed EUR 4,000 for the costs and expenses incurred before the Court. 69. The Government did not object to the payment of that amount. 70. In the present case, regard being had to the documents in its possession and its case-law, the Court considers it reasonable to award the applicant the sum of EUR 4,000 for the proceedings before it. C. Default interest 71. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. It found in particular that, although the applicant’s continuing detention did not in itself constitute inhuman or degrading treatment in the light of his disability, the inadequacy of the physical rehabilitation treatment provided to him and the fact that the prison premises were not adapted to his disability amounted to a breach of Article 3 of the Convention. The Court also noted in this case that the assistance in washing himself provided to the applicant by a fellow inmate in the absence of showers suitable for persons of reduced mobility did not suffice to fulfil the State’s obligations with regard to health and safety. |
394 | Medical care / treatment during hunger strike | II. RELEVANT DOMESTIC LAW 44. The Police Prison Internal Rules ( Polizeigefangenenhaus-Hausordnung – “the Prison Rules” ), set out in an ordinance of the Federal Minister of the Interior of 28 September 1988, Federal Law Gazette no. 566/1988, regulate detention in police prisons. In the present context the following provisions are relevant: Detention “§ 4 (1) Detention shall take place while ensuring respect for human dignity and the utmost protection of the person. ... ... (4) Detention in solitary confinement shall be permitted only in the cases referred to in Rule 5 below. ” Solitary confinement “ § 5 (1) Detention in solitary confinement must take place: 1. where there are facts justifying the assumption that the detainee is endangering the health of others through violence; 2. where a request to that effect has been made by a court in respect of detainees against whom criminal proceedings are pending; 3. where there is a danger of infection from the detainee or where the detainee, on account of his or her appearance or conduct, objectively represents a significant burden for other detainees. (2) Detention in solitary confinement may take place : 1. at the detainee's request; 2. during the night, if this appears necessary to maintain safety or order; 3. as a disciplinary measure; 4. where it is necessary for a short time for organisational reasons; 5. where there are facts justifying the assumption that the detainee is endangering his or her own life or health through violence. ” Medical supervision of detainees “ § 10 (1) Detainees who have already been declared fit for detention ... shall be immediately seen by a doctor where a justified request is made or where their continued fitness for detention is in doubt. ... (2) The state of health of injured or sick detainees who have been declared fit for detention shall be kept under medical supervision, so that any deterioration may be observed in good time; should such deterioration render them unfit for further detention, the opinion of a doctor shall be obtained immediately.” 45. At the material time, the Prison Rules did not contain any specific rules on the treatment of hunger - strikers. However, instructions were contained in an internal order (no. 2/93) for police prisons issued on 11 April 1993 by the Vienna Federal Police Directorate. These instructions provided, inter alia, that (a) hunger - strikers were to remain in multi-occupancy cells, unless there were reasons for another form of detention; (b) a report had to be drawn up when a prisoner announced his or her intention to go on hunger strike; the prisoner had to be brought immediately before the paramedic, who had to take his weight and note it in the report; (c) on the cell-board a capital “H” had to be added for each hunger - striker; (d) a paramedic had to register all hunger - strikers daily; he had to keep one copy of the record, one had to be given to the prison officer on the floor concerned (and was to be transferred with the prisoner if he was transferred) and one had to be sent to the prison administration; (e) termination of the hunger strike, release or expulsion had to be noted on the prisoner's report by the paramedic. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 47. The applicant complained that he had been ill-treated while in custody. He relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties'submissions 48. The applicant alleged that in the evening of 21 May 1994 (a) he had been beaten and kicked; (b) he had been stabbed behind the ears with ballpoint pens; (c) he had suffered injuries as a result of the inappropriate manner in which he had been carried down the stairs; (d) he had subsequently been placed in solitary confinement; and (e) he had not been given sufficient medical care. 49. In the applicant's view, the Independent Administrative Panel's findings were open to criticism in many respects. On the basis of the facts it had established, it should have come to different conclusions. For instance, the Panel had established that he had suffered skin abrasions on his back but, instead of concluding that the injuries had been caused by the inappropriate way in which he had been carried, amounting to inhuman treatment, it insinuated that the applicant's own recalcitrant and uncooperative behaviour was to blame. Similarly, the Independent Administrative Panel had accepted that owing to his hunger strike and his fear of impending expulsion, he had been in an exceptional state of mind but did not conclude that, in these circumstances, his solitary confinement amounted to inhuman or degrading treatment. This was all the more so as he had not received any adequate care regarding his hunger strike and had been left without any medical treatment for the injuries to his back until 24 May 1994. 50. Furthermore, the applicant argued that the findings of the Independent Administrative Panel could not be accepted as the proceedings before it had been defective. Firstly, their duration had been excessive, which had a negative impact on the evidential value of the witnesses'statements. Moreover, the applicant and his counsel had not been informed of the inspection of the site, in which only the police authority had participated. 51. The Government, for their part, referred to the Independent Administrative Panel's decision of 3 September 1999. They underlined that it had held a number of hearings, some of which had been conducted shortly after the events at issue, and that it had carried out a visit on the spot. Assessing the applicant's complaints in the light of Article 3 of the Convention, the Independent Administrative Panel had come to the conclusion that they were unfounded. 52. In addition, the Government gave the following information in respect of the supervision of the applicant's state of health and the medial care provided to him during his detention in solitary confinement: the Government submitted that they were not in a position to submit the applicant's complete medical record, which had already been destroyed, but only those parts of his medical file which had been considered relevant and had therefore been submitted to the Independent Administrative Panel. They asserted that the applicant, as was provided for hunger-strikers in general, was observed daily by a paramedic with regard to his state of health. However, the skin abrasions on his back had not been examined on 22 or 23 May 1994. According to the disciplinary file, a prison doctor had commented on the applicant's solitary confinement as a disciplinary measure on 23 May. The injuries on his back had become known only on 24 May, when they had been treated by the prison doctor. B. The Court's assessment 1. General principles 53. The Court reiterates that the authorities have an obligation to protect the physical integrity of persons in detention. Where an individual, when taken in police custody, is in good health, but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999 ‑ V with further references ). 54. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25 ). However, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as lying with the authorities to provide a satisfactory and convincing explanation (see Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). 55. Where domestic proceedings have taken place, it is not the Court's task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them. Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts. Where allegations are made under Article 3 of the Convention, however, the Court must apply a particularly thorough scrutiny (see, for instance, Vladimir Romanov v. Russia, no. 41461/02, § 59, 24 July 2008, and Matko v. Slovenia, no. 4 3393/98, § 100, 2 November 2006, both with a reference – mutatis mutandis – to Ribitsch, cited above, § 32). 2. Application to the present case 56. The Court will examine the applicant's allegations concerning his alleged ill-treatment on the evening in question on the one hand and those relating to his solitary confinement and the lack of medical care until 24 May 1994 on the other hand. ( a ) Alleged ill-treatment on the evening in question 57. The Court observes that the date of the events is in dispute between the parties. On the basis of the material before it the Court notes that there is indeed some inconsistency as to whether the events occurred on 21 or 22 May 1994. However, the Court does not find any cogent elements which could lead it to depart from the findings of the Independent Administrative Panel of 3 September 1999, according to which the events at issue took place on 21 May 1994 (see paragraph 40 above). 58. The applicant alleged firstly that he had been beaten and kicked by the police officers who transported him out of his cell on the evening in question. The Court observes that the medical evidence does not contain proof of any injuries clearly corresponding to the applicant's allegations. The Independent Administrative Panel did not address the issue directly. In the proceedings before the Independent Administrative Panel the police officers denied the applicant's allegations. For their part, two former cellmates of the applicant claimed that they had heard noises of beating and cries but that they had not been able to see what was going on in the corridor as the door of the cell had already been closed. Moreover, one of them had made a different statement during the criminal investigation of the case, when he had stated that the police officers had not mistreated the applicant. In sum, the Court concludes that it cannot be established beyond reasonable doubt whether the applicant was beaten and kicked by the police officers. 59. The applicant further alleged that he had been stabbed behind the ears with ballpoint pens. The Court observes that the medical report of 26 May 1994 confirms the presence of scabs behind the ears, which would be consistent with the treatment alleged by the applicant. Moreover, the applicant made the allegations three days after the incident, when he received the visit of three persons, a representative of an NGO, a journalist and a friend. All three testified as witnesses before the Independent Administrative Panel that they had seen injuries behind the applicant's ears. In its decision, the Independent Administrative Panel dismissed the allegation, with reference to an expert medical opinion. The Court notes, however, that the medical opinion (see paragraph 36 above) concerned a different question. It found it unlikely that the applicant's eardrum had been injured during his detention and stated further that it was impossible to establish whether the applicant's earaches and decreased auditory function were a consequence of his detention. The Independent Administrative Panel's reference to the expert medical opinion is therefore not conclusive as far as the alleged stabbing with ballpoint pens behind the ears is concerned. Having regard to the medical report of 26 May 1994 and the corresponding statement of the witnesses, the Court finds that the existence of injuries behind the applicant's ears is established beyond reasonable doubt. In the absence of any explanation of how he came by them other than through the ill-treatment described, the Government have failed to discharge their burden of proving that these injuries did not stem from stabbing with ballpoint pens by the police officers. 60. According to the applicant, the police officers carried him down the stairs in such a manner that his legs and his back dragged along the steps, causing skin abrasions. The Court notes that the medical report of 24 May 1994 describes several skin abrasions in the middle and lower regions of the applicant's back. It notes that one of them, being substantial, was treated with a spray and a bandage. The medical report of 26 May 1994 notes that the bandaged skin abrasion was still moist and required a new bandage, while the other skin abrasions on the applicant's back were already covered with scabs. Moreover, the three persons who had visited the applicant in prison on 24 May 1994 all testified as witnesses before the Independent Administrative Panel that they had seen the skin abrasions on the applicant's back. One of them described two of these abrasions as having been about the size of the palm of a hand. The Independent Administrative Panel found it established that the applicant had been carried in such a way that “his back dragged along the edges of the steps” and that he had suffered “skin irritations” as a result. In the following paragraph, however, it referred to the fact that the applicant had signalled skin abrasions to the prison's paramedic on 24 May 1994 and that he had subsequently been treated by the prison doctor. 61. The Court therefore finds that the injuries on the applicant's back are established beyond reasonable doubt. Moreover, the police officers involved did not deny having carried the applicant in such a manner that his back dragged along the steps. In the absence of any explanation of how the applicant may have sustained the skin abrasions other than as a result of being improperly carried down the stairs, the Court concludes that they stemmed from the treatment described. 62. Turning to the legal assessment of the facts established, the Court has emphasised that in respect of a person deprived of his liberty, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see Ribitsch, cited above, § 38, and Selmouni, cited above, § 99). 63. In that connection, the Court rejects both the Independent Administrative Panel's argument that the police officers had no other possibility than to transport the applicant in the way described as he refused to walk on his own, and the panel's other assertions to the effect that the applicant's recalcitrant behaviour justified “the fact that he was not treated in the most attentive and gentle way.” In the Court's view it is for the respondent State to ensure that prison staff are properly trained to deal even with difficult prisoners without resorting to excessive physical force. It refers in that context to the CPT's report, which also underlined the special need to provide appropriate training to staff assigned to supervise persons detained under aliens legislation ( see paragraphs 90-91 of the CPT report, cited at paragraph 46 above). 64. The Court considers that the treatment to which the applicant was subjected, namely the stabbing behind his ears and the manner in which he was carried to the individual cell, such that his back dragged along the edges of the steps, causing skin abrasions of a considerable size, must have caused him physical and mental pain and suffering. In addition, the acts complained of were such as to arouse in the applicant feelings of fear, anguish and inferiority capable of debasing him and possibly breaking his physical and moral resistance. The Court finds elements which are sufficiently serious for the treatment to which the applicant was subjected to be considered inhuman and degrading (see Selmouni, cited above, § 99, with further references ). In reaching that conclusion the Court has taken into account the fact that the applicant had been on hunger strike for three weeks at the time of the events and was undisputedly in a physically and mentally weakened state. 65. Consequently, there has been a violation of Article 3 on account of the ill-treatment to which the applicant was subjected in the evening of 21 May 1994. ( b ) Detention in solitary confinement and alleged lack of medical care 66. The Court considers that the applicant's complaints about his detention in solitary confinement and the alleged lack of medical care are closely linked and will therefore examine them together. 67. The Court notes at the outset that, in the Convention proceedings, the applicant did not complain about the conditions in the individual cell, an issue which remained in dispute in the domestic proceedings. 68. The Court reiterates that the removal from association with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman or degrading treatment or punishment. In assessing whether such a measure may fall within the ambit of Article 3 in a given case, regard must be had to the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned (see Lorsé and Others v. the Netherlands, no. 52750/99, § 63, 4 February 2003, with further references). 69. According to the findings of the Independent Administrative Panel, the applicant had acted in a disturbing manner on 21 May 1994. It is not contested that his placement in solitary confinement was a disciplinary measure. The applicant was thus placed in an individual cell in the evening of 21 May 1994, and remained there for a week, until 28 May 1994, when he was released as being unfit for further detention. On the third day of his solitary confinement he received three visitors. Moreover, he was taken to a prison doctor on the third and fifth day of his solitary confinement. In sum, the Court considers that the duration and stringency of the measure are not such as to bring the applicant's solitary confinement within the scope of Article 3. 70. However, the Court attaches weight to one particular element of the present case, namely that the applicant had already been on hunger strike for three weeks when he was placed in solitary confinement. Moreover, it refers to its above findings that the applicant had been injured as a result of the ill-treatment which he suffered during his transport to the individual cell. 71. According to the Court's established case-law, the authorities are under an obligation to protect the health of persons deprived of their liberty. The lack of appropriate medical care may amount to treatment contrary to Article 3 (see Keenan v. the United Kingdom, no. 27229/95, § 111, ECHR 2001 ‑ III ). 72. The Court finds it problematic to place in solitary confinement a detainee who is at an advanced stage of a hunger strike and may present an increased risk of losing consciousness, unless appropriate arrangements are made in order to supervise his state of health. In the present case, the Court notes in particular that upon his admission to the individual cell the applicant was not examined by a doctor. The assessment that he had only pretended to be unconscious and that his state of health did not require permanent supervision and thus permitted detention in an individual cell was made by a paramedical officer (see the latter's statement before the Independent Administrative Panel, paragraph 27 above). In addition, it follows from the CPT report (see paragraphs 86-87 of that report, cited at paragraph 46 above) that at the material time the paramedical personnel received only very basic training. It also appears from the same report hat there was no sufficiently developed approach to the treatment of hunger-strikers. In these circumstances the Court is not satisfied by the Independent Administrative Panel's explanation that the applicant was under constant supervision by a “qualified paramedic”, or by the Government's assertion that he, like any other hunger-striker, was observed daily by a paramedic. Moreover, there are no documents to show that the applicant was actually examined by a paramedic on 22 or 23 May 1994. 73. Furthermore, the Court notes that the applicant has consistently claimed that he requested to see a doctor but was refused access to one until 24 May 1994. The fact that the applicant was not examined by a doctor until that date is not disputed by the Government. It was only then that the injuries he had received as a result of his ill-treatment by the police officers were treated. The doctor's written diagnosis (see paragraph 14 above) also shows that his weight was taken and that his blood pressure and blood sugar level were also measured. 74. The fact that the applicant, as a hunger-striker, was placed in solitary confinement without a proper medical examination and was refused access to a doctor until 24 May 1994 must, taken together, have caused him suffering and humiliation going beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000 ‑ XI, with further references). In the Court's view the applicant was subjected to degrading treatment. 75. Consequently, there has been a violation of Article 3 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 76. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 77. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage. He argued that the ill-treatment to which he had been subjected had caused him intense physical and mental suffering as well as feelings of anguish and inferiority. 78. The Government asserted that the applicant's claim was excessive. 79. The Court notes that it has found violations of Article 3 in two respects, namely on account of the ill-treatment to which the applicant was subjected on 21 May 1994 and his lack of medical care in solitary confinement until 24 May 1994. Making an assessment on an equitable basis, the Court awards the applicant EUR 1 0 ,000 for non-pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses 80. The applicant claimed a total amount of EUR 25,685.29, including value - added tax (VAT), comprising EUR 19,514.17 for costs incurred in the domestic proceedings and EUR 6,171.12 for costs incurred in the Convention proceedings. 81. Regarding the costs of the domestic proceedings, the Government argued that they were excessive. They observed in particular that the bill submitted by the applicant included the costs of his first complaint to the Constitutional Court, made in 1995, although that complaint had been successful and the associated costs had therefore been reimbursed to him. Moreover, the bill contained an unjustified 10% supplement for the applicant's second complaint to the Constitutional Court. 82. Turning to the costs of the Convention proceedings, the Government submitted that the application was only partly admissible and that consequently only part of the costs claimed should be reimbursed. 83. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred in order to prevent or redress the violation found and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicant EUR 15,000 in respect of the domestic proceedings and EUR 5,000 in respect of the Convention proceedings. Consequently, the Court awards the applicant EUR 20,000 in respect of costs and expenses, plus any tax that may be chargeable to him. C. Default interest 84. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court noted in particular that the applicant, who had already been on hunger strike (with the risks that that implied such as loss of consciousness) for three weeks, had been placed in solitary confinement based on the assessment of a paramedic who had received only basic training, and had been refused access to a doctor until the third day of his solitary confinement. Taken together, those factors had to have caused him suffering and humiliation going beyond what had been inevitable in a situation of detention. In the Court's view the applicant had therefore been subjected to degrading treatment on account of the lack of medical care provided in solitary confinement until he had been allowed to see a doctor, in violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. |
900 | Persons arrested or under criminal prosecution | II. RELEVANT DOMESTIC LAW 65. The Criminal Code provides that torture is punishable with up to seven years ’ imprisonment (Article 117 § 2) and kidnapping with up to twenty years ’ imprisonment (Article 126 § 3). 66. The RSFSR Code of Criminal Procedure (in force at the material time) provided as follows: Article 137. Recognition as a civil claimant “If the investigator observes, on the basis of the case file, that the crime committed caused pecuniary damage to an individual or organisation, he must explain to them or to their representatives that they have a right to lodge a civil claim ... If a civil claim has been lodged, the investigator must issue a reasoned decision recognising [the interested party] as a civil claimant or refusing such status ... ” Article 139. Unacceptability of divulging the materials from the preliminary investigation “Materials from the preliminary investigation may only be made public with the consent of an investigator or a prosecutor and to the extent they consider it possible... ” Article 175. Charging of property “With a view to securing a civil claim or a possible confiscation order, the investigator must charge the property of the suspect, defendant ... or of the other persons who keep criminally acquired property ... If necessary, the charged property may be impounded ... ” 67. The Code of Civil Procedure of the Russian Federation provides that individuals may appear before the court in person or act through a representative (Article 48 § 1). A court may appoint an advocate to represent a defendant whose place of residence is not known (Article 50). The Advocates Act (Law no. 63-FZ of 31 May 2002) provides that free legal assistance may be provided to indigent plaintiffs in civil disputes concerning alimony or pension payments or claims for health damage (section 26 § 1). 68. The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigative unit if their participation is required as witnesses, victims or suspects in connection with certain investigative measures (Article 77.1). The Code does not mention the possibility for a convicted person to take part in civil proceedings, whether as a plaintiff or defendant. 69. On several occasions the Constitutional Court has examined complaints by convicted persons whose requests for leave to appear in civil proceedings had been refused by courts. It has consistently declared the complaints inadmissible, finding that the contested provisions of the Code of Civil Procedure and the Penitentiary Code did not, as such, restrict the convicted person ’ s access to court. It has emphasised, nonetheless, that the convicted person should be able to make submissions to the civil court, either through a representative or in any other way provided by law. If necessary, the hearing may be held at the location where the convicted person is serving the sentence or the court hearing the case may instruct the court having territorial jurisdiction over the correctional colony to obtain the applicant ’ s submissions or carry out any other procedural steps (decisions no. 478-O of 16 October 2003, no. 335-O of 14 October 2004, and no. 94-O of 21 February 2008). THE LAW I. AS TO THE LEGAL CONSEQUENCES OF THE DEATH OF THE APPLICANT MR DAMIR KHUZHIN 70. Following the death of the second applicant on 19 June 2006 (see paragraph 4 above), the other two applicants, his brothers, informed the Court of their wish to pursue in his stead the grievances he had raised. 71. The Court reiterates that in various cases where an applicant has died in the course of the proceedings, it has taken into account the statements of the applicant ’ s heirs or close family members who expressed the wish to pursue the proceedings before it (see Karner v. Austria, no. 40016/98, § 25, ECHR 2003 ‑ IX, and Dalban v. Romania [GC], no. 28114/95, § 39, ECHR 1999-VI). In the instant case it observes that the complaints raised by all three applicants were similar in substance and that the situations they complained about affected them in an equal measure. It therefore accepts that the first and third applicants may pursue the application in so far as it was lodged by the late second applicant. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 72. The applicants complained under Article 3 of the Convention that they had been humiliated, intimidated and pressurised by the investigator. They further complained that they had been transported in inhuman conditions on 26 December 2002. In addition, the first applicant complained of the degrading conditions of his detention from 22 April 1999 to 16 May 2002 and from 26 June 2002 to 16 January 2003. Article 3 reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 73. The Court observes at the outset that the first applicant raised his complaint about the conditions of his detention for the first time in an addendum to the application form dated 19 December 2003. Since this complaint relates to the period of detention which ended on 16 January 2003, it was submitted outside the six-month time-limit and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. 74. The Court further notes that the applicants ’ submissions about the alleged intimidation and pressure on the part of the investigator were not elaborated on and did not contain any description of the alleged ill-treatment. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 75. Finally, as regards the complaint about the incident on 26 December 2002, the parties ’ submissions may be summarised in the following manner. 76. The applicants submitted that they had been subjected to inhuman and degrading treatment because they had been deliberately put in a prison van without warm clothing, taken to the railway station, held there for some thirty minutes and then taken back to the prison. Padded jackets and winter hats had not been given to them before they had entered the van but only at the station. They had been unable to put them on because the jackets had shrunk after repeated washes. The applicants claimed that the time taken to enter and leave the prison van had been as long as twenty minutes because each prisoner had been required to state his full name, date of birth, the charges against him and the duration of the sentence. 77. The Government put emphasis on the fact that the applicants had repeatedly been offered winter clothing but had refused to put it on. Admittedly, the clothing had been used but had been clean and neat as per the applicable sanitary and hygiene requirements. The applicants ’ decision to stay outside in the frost without appropriate clothing had been the result of their own deliberate actions. 78. The Court observes that the circumstances of the incident on 26 December 2002 are largely not in dispute between the parties. On that day the applicants were scheduled to be transported to the correctional colony by train. The outside temperature was extremely low. As they were leaving the detention facility, prison officers handed them winter clothing, which they declined to put on. The train escort refused to take them in without warm clothes and the applicants were brought back to the detention facility. By all accounts, the applicants stayed outside the facility for less than one hour. 79. The only contentious point between the parties is whether the clothing offered to the applicants was fit to wear. In their original submissions the applicants claimed that it had been “torn and old” (see paragraph 40 above), whereas in their submissions on the merits they alleged that it had been too small because it had shrunk. However, the Court is not convinced by the latter claim because it appears peculiar that it transpired for the first time only at an advanced stage of proceedings. The Government, for their part, did not deny that the clothing had not been new, yet they maintained that it had been washed in compliance with hygiene requirements. In these circumstances, the Court concludes that the applicants were offered winter clothing which was used but clean. 80. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim ’ s behaviour (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom, 18 January 1978, Series A no. 25, p. 65, § 162). 81. In the instant case the alleged inhuman treatment consisted in the applicants ’ being exposed to an extremely low outside temperature without warm clothing. It was not in dispute between the parties that their exposure was the result of the applicants ’ deliberate choice not to put on the clothing that the facility wardens had repeatedly offered to them. 82. It has not been claimed that the applicants were singled out for any kind of special treatment. In particular, it does not appear that the winter clothing which was handed to them was any different from that distributed to other prisoners. As the Court has found above, the clothing was not new and was probably quite worn. Nevertheless, there is no evidence that it was in such a dire state as to be unacceptable to wear. Nor has it been alleged that it did not offer sufficient protection from the cold. The Court therefore cannot conclude that the domestic authorities failed in their duty to provide the applicants with adequate protection against inclement weather. 83. Having regard to the above circumstances, the Court finds that the treatment complained about did not go beyond the threshold of a minimum level of severity. It follows that this part of the complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 84. The applicants complained under Article 5 of the Convention that their detention orders had not been based on sufficient reasons and that they had not been released pending trial despite their applications to that effect. 85. The Court notes that the applicants ’ pre-trial detention ended with their conviction on 2 March 2001, whereas their application was only lodged on 26 February 2002, more than six months later. It follows that this complaint has been lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION IN THE CRIMINAL PROCEEDINGS 86. The applicants complained under Article 6 §§ 1 and 3 (a ), ( b ) and ( d) that the materials in the investigation file had been made available to them only at the end of the investigation, that they had not had an opportunity to question the witnesses for the defence and the victim and that the trial judge had been biased and had dismissed their challenges. They further claimed that the length of the criminal proceedings against them had been excessive. Finally, they alleged a breach of their presumption of innocence guaranteed by Article 6 § 2 of the Convention in that the prosecution authorities had closely cooperated with the mass media during the trial. The relevant parts of Article 6 read as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal ... 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; ... (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ... ” A. Admissibility 87. The Court notes that the criminal proceedings against the applicants lasted from 12 April 1999 to 18 December 2001, that is, for two years and eight months. Within that period the pre-trial investigation lasted for one year and three months and the trial at first instance continued from 31 July 2000 to 2 March 2001. The appeal proceedings had been preceded by a delay resulting from the Town Court ’ s failure to take certain procedural steps which were considered indispensable by the Supreme Court (see paragraph 34 above). Once those defects had been remedied, the appeals were heard in less than two months ’ time. The Court reiterates that the fact that the applicants were held in custody required particular diligence on the part of the courts dealing with the case to administer justice expeditiously (see Panchenko v. Russia, no. 45100/98, § 133, 8 February 2005, and Kalashnikov v. Russia, no. 47095/99, § 132, ECHR 2002 ‑ VI). Nevertheless, noting that there were no significant delays attributable to the authorities, save for the one mentioned above, and making a global assessment of the circumstances of the case, the Court does not find that the duration of proceedings was in breach of the “reasonable time” requirement in Article 6 § 1 of the Convention. 88. As regards the complaint about the allegedly insufficient time for the preparation of the defence, the Court observes that in the Russian legal system it is normal practice to allow defendants to study the case file after the pre-trial investigation has been completed. This does not in itself run counter to the requirements of Article 6 of the Convention. The applicants did not complain that the time for studying the case file was insufficient or that their right to read the materials in the file was otherwise restricted. 89. The Court further observes that the victim V. gave oral evidence during the trial and that the applicants therefore had an opportunity to put questions to him. As to the witnesses for the defence whom the court allegedly refused to call to the witness stand, the Court notes that the trial court did examine certain witnesses for the defence. The applicants did not identify further witnesses they wished to have examined or explain why it would have been useful to examine them in the circumstances of the case. Nor did they substantiate their claim that the trial judge had lacked impartiality. It follows that the above - mentioned complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 90. Finally, the Court considers, in the light of the parties ’ submissions, that the complaint concerning the alleged prejudice to the applicants ’ presumption of innocence raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. B. Merits 1. Submissions by the parties 91. The applicants submitted that the investigator Mr Kurbatov and other employees of the prosecutor ’ s office had not only granted Ms Temeyeva unrestricted access to the criminal case file but had also actively participated in the television show. The showing of the front cover of the case file in the opening sequence of the television show demonstrated that it had been made physically available to the journalist. The show had been recorded before the case had been referred for trial; it had been extensively advertised with the sensationalist line “Slavery in Glazov at the end of the twentieth century” and aired at such times as to precede the adjourned trial hearings and the appeal hearing. Article 139 of the RSFSR Code of Criminal Procedure could not be interpreted as justifying an encroachment on the applicants ’ presumption of innocence. Their right to be presumed innocent until found guilty had been further damaged by the statements made by the journalist Ms Temeyeva, the prosecutor Mr Zinterekov, the investigator Mr Kurbatov and the prosecutor Mr Nikitin during the television show. In addition, the prosecution had also granted access to the case file to the journalist Ms M., the author of the article “The Land of Slaves”, which had also been highly prejudicial to the applicants. The applicants insisted that the extensive press coverage of their case and the statements by high-ranking prosecution officials had led the public to believe them guilty. 92. The Government denied that the investigator Mr Kurbatov had made the physical criminal case file available to the journalist Ms Temeyeva. They claimed that he had orally communicated to her certain information which he had considered appropriate to disclose in accordance with Article 139 of the RSFSR Code of Criminal Procedure. By that time the preliminary investigation had been completed and the case had been referred for trial. The Government submitted that the participants in the Versiya television show had not made any statements which could have breached the applicants ’ presumption of innocence. 2. The Court ’ s assessment 93. The Court reiterates that Article 6 § 2, in its relevant aspect, is aimed at preventing the undermining of a fair criminal trial by prejudicial statements made in close connection with those proceedings. The presumption of innocence enshrined in paragraph 2 of Article 6 is one of the elements of the fair criminal trial that is required by paragraph 1 (see Allenet de Ribemont v. France, judgment of 10 February 1995, Series A no. 308, § 35). It prohibits the premature expression by the tribunal itself of the opinion that the person “charged with a criminal offence” is guilty before he has been so proved according to law (see Minelli v. Switzerland, judgment of 25 March 1983, Series A no. 62) but also covers statements made by other public officials about pending criminal investigations which encourage the public to believe the suspect guilty and prejudge the assessment of the facts by the competent judicial authority (see Allenet de Ribemont, cited above, § 41; Daktaras v. Lithuania, no. 42095/98, §§ 41 - 43, ECHR 2000 ‑ X; and Butkevičius v. Lithuania, no. 48297/99, § 49, ECHR 2002 ‑ II ). 94. It has been the Court ’ s consistent approach that the presumption of innocence will be violated if a judicial decision or a statement by a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law. It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court or the official regards the accused as guilty. A fundamental distinction must be made between a statement that someone is merely suspected of having committed a crime and a clear declaration, in the absence of a final conviction, that an individual has committed the crime in question. The Court has consistently emphasised the importance of the choice of words by public officials in their statements before a person has been tried and found guilty of a particular criminal offence (see Böhmer v. Germany, no. 37568/97, § § 54 and 56, 3 October 2002, and Nešťák v. Slovakia, no. 65559/01, § § 88 and 89, 27 February 2007 ). 95. Turning to the facts of the present case, the Court observes that a few days before the scheduled opening of the trial in the applicants ’ case, a State television channel broadcast a talk show, in which the investigator dealing with the applicants ’ case, the town prosecutor and the head of the particularly serious crimes division in the regional prosecutor ’ s office took part. The participants discussed the applicants ’ case in detail with some input from the show ’ s presenter and the alleged victim of their wrongdoings. Subsequently the show was aired again on two occasions during the trial and once more several days before the appeal hearing. 96. As regards the contents of the show, the Court notes that all three prosecution officials described the acts imputed to the applicants as a “crime” which had been committed by them (see their statements in paragraphs 16, 17 and 18 above). Their statements were not limited to describing the status of the pending proceedings or a “state of suspicion” against the applicants but represented as an established fact, without any qualification or reservation, their involvement in the commission of the offences, without even mentioning that they denied it. In addition, the town prosecutor Mr Zinterekov referred to the applicants ’ criminal record, portraying them as hardened criminals, and made a claim that the commission of the “crime” had been the result of their “personal qualities” – “cruelty and meaningless brutality”. In the closing statement he also mentioned that the only choice the trial court would have to make would be that of a sentence of an appropriate length, thus presenting the applicants ’ conviction as the only possible outcome of the judicial proceedings (see paragraph 18 above). The Court considers that those statements by the public officials amounted to a declaration of the applicants ’ guilt and prejudged the assessment of the facts by the competent judicial authority. Given that those officials held high positions in the town and regional prosecuting authorities, they should have exercised particular caution in their choice of words for describing pending criminal proceedings against the applicants. However, having regard to the contents of their statements as outlined above, the Court finds that some of their statements could not but have encouraged the public to believe the applicants guilty before they had been proved guilty according to law. Accordingly, the Court finds that there was a breach of the applicants ’ presumption of innocence. This finding makes it unnecessary to examine separately the applicants ’ grievance that the release of the case file to the journalists was also prejudicial to their presumption of innocence. 97. There has therefore been a violation of Article 6 § 2 of the Convention. V. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION IN THE CIVIL PROCEEDINGS 98. The applicants complained of a breach of the equality-of-arms principle flowing from Article 6 § 1 of the Convention, in that the domestic courts examining their civil claims had refused them leave to appear. The relevant part of Article 6 reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Admissibility 99. The Court observes that it has not received any information about the outcome of the defamation proceedings instituted by the third applicant against the prosecutor Mr Zinterekov (see paragraph 64 above). In these circumstances, this part of the complaint must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. 100. As regards the other claim lodged by the applicants, the Court considers, in the light of the parties ’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. B. Merits 1. Submissions by the parties 101. The applicants emphasised that the summons had mentioned their right to appear in person before the civil court. However, since they were deprived of their liberty, the exercise of that right had been conditional on the court ’ s decision to have them transferred to the local investigative unit. They pointed out that Mrs Khuzhina had left the court, protesting against the court ’ s decision to refuse them leave to appear. They maintained that the principle of equality of arms had been breached because they had not been present or represented in the proceedings. 102. The Government submitted that at the relevant time the applicants had been serving their sentences in a correctional colony. They had been duly summoned to the hearing and also informed of their right to make written submissions to the court. Mrs Khuzhina, a representative of the first applicant, had left the hearing of her own will and without any explanation. The court had examined written submissions by the second applicant. The third applicant had not appointed a representative, although he had been informed of his right to do so. The Government considered that there had been no violation of the applicants ’ right to a fair trial because they had made use of their right to make written submissions or to appoint a representative. 2. The Court ’ s assessment 103. The Court reiterates that the principle of adversarial proceedings and equality of arms, which is one of the elements of the broader concept of a fair hearing, requires that each party be given a reasonable opportunity to have knowledge of and comment on the observations filed or evidence adduced by the other party and to present his case under conditions that do not place him or her at a substantial disadvantage vis-à-vis his or her opponent (see Krčmář and Others v. the Czech Republic, no. 35376/97, § 39, 3 March 2000, and Dombo Beheer B.V. v. the Netherlands, judgment of 27 October 1993, Series A no. 274, § 33 ). The Court has previously found a violation of the right to a “public and fair hearing” in several cases against Russia, in which a party to civil proceedings was deprived of an opportunity to attend the hearing because of the belated or defective service of the summons (see Yakovlev v. Russia, no. 72701/01, §§ 19 et seq., 15 March 2005; Groshev v. Russia, no. 69889/01, §§ 27 et seq., 20 October 2005; and Mokrushina v. Russia, no. 23377/02, 5 October 2006). It also found a violation of Article 6 in a case where a Russian court refused leave to appear to an imprisoned applicant who had wished to make oral submissions on his claim that he had been ill-treated by the police. Despite the fact that the applicant in that case was represented by his wife, the Court considered it relevant that his claim had been largely based on his personal experience and that his submissions would therefore have been “an important part of the plaintiff ’ s presentation of the case and virtually the only way to ensure adversarial proceedings” (see Kovalev v. Russia, no. 78145/01, § 37, 10 May 2007). 104. The Court observes that the Russian Code of Civil Procedure provides for the plaintiff ’ s right to appear in person before a civil court hearing his claim (see paragraph 67 above). However, neither the Code of Civil Procedure nor the Penitentiary Code make special provision for the exercise of that right by individuals who are in custody, whether they are in pre-trial detention or are serving a sentence. In the present case the applicants ’ and their representative ’ s requests for leave to appear were denied precisely on the ground that the domestic law did not make provision for convicted persons to be brought from correctional colonies to the place where their civil claim was being heard. The Court reiterates that Article 6 of the Convention does not guarantee the right to personal presence before a civil court but rather a more general right to present one ’ s case effectively before the court and to enjoy equality of arms with the opposing side. Article 6 § 1 leaves to the State a free choice of the means to be used in guaranteeing litigants these rights (see Steel and Morris v. the United Kingdom, no. 68416/01, § § 59-60, ECHR 2005 ‑ II ). 105. The issue of the exercise of procedural rights by detainees in civil proceedings has been examined on several occasions by the Russian Constitutional Court, which has identified several ways in which their rights can be secured (see paragraph 69 above). It has consistently emphasised representation as an appropriate solution in cases where a party cannot appear in person before a civil court. Given the obvious difficulties involved in transporting convicted persons from one location to another, the Court can in principle accept that in cases where the claim is not based on the plaintiff ’ s personal experiences, as in the above-mentioned Kovalev case, representation of the detainee by an advocate would not be in breach of the principle of equality of arms. 106. In the instant case the applicants were informed of their right to appoint a representative in civil proceedings and the first applicant nominated Mrs Khuzhina as his representative. However, given the personal nature of their claim for defamation, they sought leave to appear before the civil court, which was refused to them by the judge on 3 March 2003. After Mrs Khuzhina refused to participate further in the hearing in protest against the judge ’ s decision and walked out of the courtroom, the judge decided to proceed with the case in her absence and also in the absence of the applicants, finding that “there [were] no legal grounds to ensure the attendance of individuals who have committed particularly serious, insolent crimes”. On the following day the court dismissed the applicants ’ claim in its entirety. 107. The Court notes that, after the Town Court had refused the applicants leave to appear in terms that can only be described as prejudicial, it did not consider the legal possibilities for securing their effective participation in the proceedings. Furthermore, it did not adjourn the proceedings to enable the second and third applicants, on having learnt of the refusal of leave to appear, to designate a representative and the first applicant to discuss the issue of further representation with Mrs Khuzhina or to find a replacement lawyer. The applicants were obviously unable to decide on a further course of action for the defence of their rights until such time as the decision refusing them leave to appear was communicated to them. However, as it happened, that decision reached them at the same time as the judgment in which their claim was dismissed on the merits. The appeal court did nothing to remedy that situation. 108. In these circumstances the Court finds that the fact that the applicants ’ civil claim was heard with them being neither present nor represented deprived them of the opportunity to present their case effectively before the court. 109. There has therefore been a violation of Article 6 § 1 of the Convention in those proceedings. VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 110. The first and second applicants complained under Article 8 of the Convention that the investigator had exerted pressure on their relatives. In addition, the first applicant complained under the same provision about the broadcasting of his photo and personal details during the Versiya television show. Article 8 reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 111. The Court notes that the applicants did not furnish any details of the pressure allegedly put on their relatives. It appears that the first applicant was able to receive visits from his fiancée ( later his wife ) on a regular basis (see paragraph 7 above), whereas the second applicant did not raise any specific grievances about family visits. In these circumstances, the Court is unable to discern any interference with these applicants ’ family life. It follows that this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 112. As regards the alleged interference with the first applicant ’ s private life, the Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Submissions by the parties 113. The first applicant submitted that the black-and-white photo of him which had been shown during the television programme had been the one from his passport which had been appended to the criminal case file. This proved that the journalist had obtained it from the prosecuting authorities. He considered that the broadcasting of his photograph had not served any legitimate purpose and was in breach of Article 8 of the Convention. 114. The Government did not mention the broadcasting of the applicants ’ photographs in their observations. They indicated, nevertheless, that, in the assessment made by the Prosecutor General ’ s Office, there had been no violation of Article 8 § 1 in respect of the applicants. 2. The Court ’ s assessment 115. The Court reiterates that the concept of private life includes elements relating to a person ’ s right to his or her image and that the publication of a photograph falls within the scope of private life (see Gurgenidze v. Georgia, no. 71678/01, § 55, 17 October 2006; Sciacca v. Italy, no. 50774/99, § 29, ECHR 2005 ‑ I; and Von Hannover v. Germany, no. 59320/00, §§ 50-53, ECHR 2004 ‑ VI). In the Gurgenidze and Von Hannover cases the State failed to offer adequate protection to the applicants against the publication of their photographs taken by journalists, whereas in the Sciacca case the applicant ’ s published photograph had been released to the press by the police without her consent (see Sciacca, cited above, §§ 16, 26 and 28). The Court found that the fact that Mrs Sciacca was the subject of criminal proceedings did not curtail the scope of the enlarged protection of her private life which she enjoyed as an “ordinary person” (§ 29). 116. The situation in the instant case was similar in substance to that obtaining in the Sciacca case. Without his consent, the first applicant ’ s passport photograph was taken by the police from the materials in the criminal case file and made available to a journalist, who used it in a television show. The Court finds that there has been an interference with the first applicant ’ s right to respect for his private life. 117. As regards the justification for the interference, the Court observes that none has been put forward by the Government. The Court considers that where a photograph published in the context of reporting on pending criminal proceedings has no information value in itself, there must be compelling reasons to justify an interference with the defendant ’ s right to respect for his private life (compare News Verlags GmbH & Co.KG v. Austria, no. 31457/96, § 58 et passim, ECHR 2000 ‑ I ). Even assuming that Article 139 of the RSFSR Code of Criminal Procedure could be a lawful basis for granting the press access to the case file, in the instant case the Court does not see any legitimate aim for the interference with the first applicant ’ s right to respect for his private life. Being in custody at the material time, he was not a fugitive from justice and the showing of his photograph could not have been necessary for enlisting public support to determine his whereabouts. Nor could it be said to have bolstered the public character of judicial proceedings because at the time of the recording and the first airing of the television show the trial had not yet begun. Accordingly, the Court finds that in the circumstances of the present case the release of the first applicant ’ s photograph from the criminal file to the press did not pursue any of the legitimate aims enumerated in paragraph 2 of Article 8. 118. There has therefore been a violation of Article 8 of the Convention in respect of the first applicant. VII. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 119. The applicants complained under Article 1 of Protocol No. 1 about the unlawful impounding and retention of the third applicant ’ s van. They also alleged a violation of that provision on account of the police ’ s forceful entry into the warehouse, the locks of which had been damaged as a result. Article 1 of Protocol No. 1 provides as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 120. The Court observes that the applicants did not raise the complaint about the alleged damage to the warehouse in any domestic proceedings. It follows that it must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. 121. It is not in dispute that the third applicant was the sole owner of the van. Accordingly, the Court considers that the complaints by the other two applicants relating to the van are incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4. On the other hand, the third applicant ’ s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Since it is not inadmissible on any other grounds, it must therefore be declared admissible. B. Merits 1. Submissions by the parties 122. The Government submitted that the van had been returned to Mrs Khuzhina, who had not made any complaints about its state or any missing property. The third applicant ’ s claim against the investigator Mr Kurbatov had been dismissed by the domestic courts as unfounded. The Government asserted that his complaint under Article 1 of Protocol No. 1 was manifestly ill-founded because he had already made use of effective domestic remedies. 123. The third applicant claimed that the vehicle had remained for more than three years in an open-air car park, as a result of which it had suffered a depreciation in value and considerable damage. Since it had been returned to Mrs Khuzhina rather than to its lawful owner, the third applicant, she had been unable to detect any missing parts or items of property. Moreover, the impounding of the vehicle had been unlawful: the Udmurtiya Republic prosecutor had ruled that the investigator Mr Kurbatov had proceeded without a legal basis and had acted in breach of the Instruction on storing physical evidence. However, the third applicant ’ s right to claim damages in civil proceedings had turned out to be merely theoretical rather than practical and effective, as required by the Convention. 2. The Court ’ s assessment 124. The Court observes that the “possession” at issue in the present case was the vehicle of which the third applicant was the lawful owner. The vehicle was impounded on 12 May 1999 and returned to his brother ’ s wife on 4 June 2002, three years and almost one month later. 125. The parties did not take a clear stance on the question of the rule of Article 1 of Protocol No. 1 under which the case should be examined. The Court observes that the charging of the car amounted to a temporary restriction on its use and thus fell under the scope of the second paragraph of Article 1 concerning “a control of the use of property” (see Air Canada v. the United Kingdom, judgment of 5 May 1995, Series A no. 316 ‑ A, § 34). 126. The Court has next to determine whether the interference was justified in accordance with the requirements of that provision. In this connection it reiterates that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be “lawful”: the second paragraph recognises that the States have the right to control the use of property by enforcing “laws”. Moreover, the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention. The issue of whether a fair balance has been struck between the demands of the general interest of the community and the requirements of the protection of the individual ’ s fundamental rights only becomes relevant once it has been established that the interference in question satisfied the requirement of lawfulness and was not arbitrary (see, among other authorities, Baklanov v. Russia, no. 68443/01, § 39, 9 June 2005, and Frizen v. Russia, no. 58254/00, § 33, 24 March 2005, with further references ). 127. The RSFSR Code of Criminal Procedure, in force at the material time, envisaged two situations in which a charging order in respect of a suspect ’ s or defendant ’ s property could be issued (Article 175) : firstly, if the offence with which the individual was charged carried a confiscation measure as an auxiliary penal sanction; and secondly, if the charging order was necessary to secure a civil claim in the criminal proceedings. 128. In the instant case the Court observes that neither the offence of torture nor that of kidnapping, which formed the charges against the third applicant, carried a confiscation measure as a penal sanction (see paragraph 65 above). Furthermore, at the time the investigator issued a charging order no civil claim had been brought in criminal proceedings and no one had been recognised as a civil claimant by a reasoned decision, as required by Article 137 of the RSFSR Code of Criminal Procedure. It follows that neither of the two grounds was applicable for making a charging order in respect of the third applicant ’ s vehicle. The deficient legal basis for the contested measure was identified by an inquiry carried out by the supervising prosecutor in response to the third applicant ’ s complaints (see paragraph 49 above). The prosecutor found, in particular, that the investigator had acted in breach of Article 175 of the Code, in that he had impounded the vehicle without legal grounds for doing so. In examining the third applicant ’ s claim for damages, the domestic courts did not clarify why they believed that in those circumstances the investigator had acted in accordance with the applicable legal provisions. 129. Accordingly, the Court finds that the interference with the third applicant ’ s rights under Article 1 of Protocol No. 1 did not meet the requirement of “lawfulness”. There has therefore been a violation of that provision. VIII. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 130. Lastly, the applicants complained under Articles 9 and 14 of the Convention about discrimination on account of their Tatar ethnicity in the article by the journalist Ms M. The Court notes that the applicants did not raise the alleged discrimination issue in any domestic proceedings and that the contested statements represented a personal opinion by the journalist, for which the State authorities cannot be held accountable. It follows that this complaint must be rejected for non-exhaustion of domestic remedies or as being incompatible ratione personae with the provisions of the Convention. 131. The applicants alleged a violation of Article 13 of the Convention in respect of all the above complaints. The Court observes that they did not explain in any detail why they considered that they were denied effective domestic remedies for their grievances. Having regard to the circumstances of the case, the Court finds that the complaint is devoid of merit. It therefore rejects this complaint as manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention. IX. APPLICATION OF ARTICLE 41 OF THE CONVENTION 132. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 133. The applicants did not submit any claim for just satisfaction. Instead, on 30 September 2005 the Court received a claim from Ms Natalie Volodina for pecuniary and non-pecuniary damage and also costs and expenses. 134. The Government pointed out that the claim had been signed by Ms Volodina, who had not been authorised to represent the applicants before the Court. In addition, there had been significant discrepancies between the amounts cited in Ms Volodina ’ s covering letter and the list of claims enclosed with it. The claims for pecuniary damage and costs and expenses had not been accompanied by any supporting documents and the claim for non-pecuniary damage was either unrelated to the alleged violations of the Convention or manifestly excessive. 135. The Court observes that the claim for just satisfaction was not signed by the applicants or by either of their two representatives in the proceedings, Ms Moskalenko or Ms Bokareva. Instead, it bore the signature of Ms Volodina, who had not been designated as the applicants ’ representative before the Court. No explanation as to Ms Volodina ’ s status in the proceedings or authority to act on the applicants ’ behalf has been provided. In these circumstances, the Court is unable to accept that the claim was submitted by the applicants or by their authorised representative. The claim must therefore be rejected. | The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention, finding that, in the circumstances of the present case, the release of the first applicant’s photograph from the criminal file to the press had not pursued any of the legitimate aims enumerated in paragraph 2 of Article 8 of the Convention. The Court observed in particular that, being in custody at the material time, the first applicant was not a fugitive from justice and the showing of his photograph could not have been necessary for enlisting public support to determine his whereabouts. Nor could it be said to have bolstered the public character of judicial proceedings because at the time of the recording and the first airing of the television show the trial had not yet begun. |
295 | Victims of terrorist acts | THE LAW ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 29. The applicants alleged a violation of Article 2 of the Convention by the Belgian authorities, arguing that the decision not to execute the European arrest warrants prevented the suspected perpetrator of their father’s murder from being prosecuted by the Spanish authorities. The applicants also raised an issue of access to a court under Article 6 of the Convention. 30. The Court reiterates that it has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles or provisions that are different from those relied upon by the applicant (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018). 31. In the instant case, noting that the applicants’ complaints cover the same ground, it considers it appropriate to examine them under Article 2 of the Convention alone. The relevant parts of that Article provide: “1. Everyone’s right to life shall be protected by law. ...” AdmissibilityWhether the applicants come within Belgium’s jurisdiction Whether the applicants come within Belgium’s jurisdiction Whether the applicants come within Belgium’s jurisdiction 32. Article 1 of the Convention provides: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.” (a) The parties’ submissions 33. The Government submitted that the present case did not fall within the jurisdiction of the Belgian State within the meaning of Article 1 of the Convention. The applicants were in Spain and the proceedings concerning their father’s murder had been conducted, and continued to be conducted, in the Spanish courts. Moreover, the murder had taken place in Spain and no connection with Belgium had been invoked. Furthermore, the Belgian authorities’ refusal to execute the European arrest warrant had been based on considerations relating to the treatment of prisoners in Spain. While it was true that N.J.E now came prima facie within the jurisdiction of the Belgian courts, it could not be inferred from this that the same applied to the victims, who had no connection to that country. While acknowledging that the procedure for the execution of a European arrest warrant did not allow the applicants to intervene and that the decisions complained of had had an (indirect) impact on their interests, the Government nevertheless stressed that the applicants had never been parties to proceedings in Belgium. 34. The Government submitted that the applicants essentially came within Spain’s jurisdiction and should therefore have lodged a complaint against Spain with the Court. It was primarily Spain’s responsibility to conduct an investigation into their father’s murder in 1981 and to prosecute the suspected perpetrators and N.J.E, in accordance with Article 2 of the Convention. The present case was to be distinguished from cases in which the Court had recognised that the State to which the suspected perpetrator had fled could have jurisdiction within the meaning of Article 1 of the Convention. Firstly, Belgium had never instituted an investigation into the murder of the applicants’ father. Secondly, it could not be argued that the Belgian State had any obligation under Article 2 to obtain evidence. There had never been any question of this in the proceedings concerning the European arrest warrant, and in view of the time elapsing between the murder and the first set of proceedings in Belgium, the idea of still being able to gather evidence was somewhat illusory. Thirdly, the Government stressed that Belgium had cooperated with Spain and that it was only in the course of that cooperation that the Belgian courts, applying Article 3 of the Convention in particular, had decided not to surrender N.J.E. From that standpoint it was clear that the harm alleged by the applicants did not stem from the conduct of the Belgian authorities, but rather from the situation in Spanish prisons at the time of the refusal decision. 35. The applicants argued that although, from a criminal-law perspective, prosecution of the offence in the present case was a matter for the Spanish judicial authorities, it had not been possible to bring that prosecution to a successful conclusion as the actual perpetrator had escaped the jurisdiction of the Spanish courts. In their view, it was not for the Belgian authorities to carry out any investigative measures, as that stage had already been completed in Spain; their task was to allow N.J.E. to be tried in Spain, by executing the European arrest warrant issued in 2015. The Spanish authorities had done everything in their power to investigate the case by instituting an independent investigation and carrying out all the necessary inquiries in order to establish the facts and the persons responsible. (b) The Court’s assessment 36. The Court reiterates that “jurisdiction” under Article 1 of the Convention is a threshold criterion and is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention (see Güzelyurtlu and Others v. Cyprus and Turkey [GC], no. 36925/07, § 178, 29 January 2019). 37. The Court further observes that, in the context of the procedural limb of Article 2 concerning deaths occurring under a different jurisdiction from that of the State in respect of which the procedural obligation is said to arise, the Grand Chamber has recently specified that, where no investigation or proceedings have been instituted in the respondent State in respect of a death which has occurred outside its jurisdiction, a jurisdictional link may nevertheless be established and a procedural obligation may arise for that State under Article 2. Although the procedural obligation under Article 2 will in principle only be triggered for the Contracting State under whose jurisdiction the deceased was to be found at the time of death, “special features” in a given case may justify departure from this approach (ibid., § 190, referring to Rantsev v. Cyprus and Russia, no. 25965/04, §§ 243-44, ECHR 2010 (extracts)). 38. In the present case the applicants’ complaint under Article 2 of the Convention with regard to Belgium concerns the alleged failure of the Belgian authorities to cooperate with the Spanish authorities by taking the necessary steps to enable the suspected murderer of the applicants’ father, who had fled to Belgium, to be tried in Spain. 39. Hence, unlike in the cases of Güzelyurtlu and Others and Rantsev, cited above, the Article 2 complaint is not based on the assertion that the Belgian authorities failed to fulfil a procedural obligation to investigate the murder themselves. 40. That being said, the Court does not see this as a reason for distinguishing the present case for the purposes of determining whether there is a jurisdictional link with Belgium, and considers it appropriate to apply the principles set forth in that regard in Güzelyurtlu and Others. 41. Applying, mutatis mutandis, the case-law cited above (see paragraph 37), the Court notes that N.J.E., the suspected perpetrator of the killing, fled to Belgium and remains there to this day. In the context of the mutual undertakings given by the two States in the sphere of cooperation in criminal matters, in this instance under the European arrest warrant scheme (see paragraphs 23-24 above), the Belgian authorities were subsequently informed of the Spanish authorities’ intention to institute criminal proceedings against N.J.E., and were requested to arrest and surrender her. 42. These special features of the case suffice for the Court to consider that a jurisdictional link exists between the applicants and Belgium for the purposes of Article 1 of the Convention with regard to the applicants’ complaint under the procedural limb of Article 2 of the Convention (see, mutatis mutandis, Güzelyurtlu and Others, cited above, §§ 194-96). 43. The Court therefore concludes that the Government’s preliminary objection of incompatibility ratione loci should be dismissed. In assessing the complaint on the merits, it will have to determine the scope and extent of the procedural obligation on Belgium to cooperate in the circumstances of the present case. Whether the applicants have victim status (a) The parties’ submissions 44. The Government questioned the existence of a causal link between the refusal of the Belgian courts and the hypothetical failure ultimately to recognise N.J.E.’s responsibility. The option of the European arrest warrant had been chosen by the Spanish authorities. When the Belgian authorities had refused execution, the Spanish authorities could also have explored other avenues. Other procedures, such as conducting proceedings in absentia in Spain, should have been possible. The applicants’ argument that the Spanish Constitution prohibited such proceedings, and that the Belgian authorities should therefore be more “cooperative”, was problematic in that it made Belgium’s obligations under Article 2 of the Convention contingent on the provisions of the Spanish Constitution; at the same time, Belgium could not be criticised for complying with its obligations under Article 3 of the Convention. 45. The applicants, relying on the Court’s case-law, submitted that they had victim status as the children of the murder victim. In view of the provisions of both Spanish and Belgian law, the issuing of a European arrest warrant by the Spanish authorities was the only appropriate means of securing N.J.E.’s prosecution. In their view, the fact that no proceedings could be brought against N.J.E. was attributable solely to the conduct of the Belgian authorities. In that connection the applicants asserted that the reason why sentence could not be passed in absentia in Spain was in order to prevent infringements of the right to a fair trial under Article 24.1 of the Spanish Constitution. The prohibition applied to acts punishable by a custodial sentence of more than one year (Article 841 of the Code of Criminal Procedure). (b) Observations of the third-party interveners 46. The Spanish Government confirmed that the refusal of the Belgian judicial authorities meant that the requested person would never be prosecuted for her involvement in the murder. If she was not surrendered she could not be tried in the Spanish courts. Furthermore, according to the Belgian courts’ own findings, N.J.E. could under no circumstances be tried in the Belgian courts if she was not surrendered to Spain. 47. N.J.E. stressed that victims who lodged a civil claim could not intervene in the proceedings for execution of a European arrest warrant, since the investigating courts did not rule on the merits of the case or on damages, but simply returned a suspect to the country where he or she was the subject of an ongoing judicial investigation. Likewise, civil parties did not fall within the jurisdiction of the aforementioned courts, as the procedure for execution of a European arrest warrant was an inter-State procedure, as was clear from the EU framework decision and the Belgian legislation on the European arrest warrant. (c) The Court’s assessment 48. The Court refers to the applicable principles regarding victim status for the purposes of Article 34 of the Convention, as set out in particular in its judgment in Vallianatos and Others v. Greece ([GC], nos. 29381/09 and 32684/09, § 47, ECHR 2013 (extracts)). 49. The Court observes, in particular, that it has accepted that close family members of a person whose death or disappearance is alleged to engage the responsibility of the State can themselves claim to be indirect victims of the alleged violation of Article 2 of the Convention (see, for instance, McKerr v. the United Kingdom, no. 28883/95, ECHR 2001 ‑ III (in relation to children), and Van Colle v. the United Kingdom, no. 7678/09, § 86, 13 November 2012 (in relation to parents)). 50. Regard being had to this case-law, the Court considers that the applicants in the present case have victim status for the purposes of Article 34 of the Convention. Exhaustion of domestic remedies (a) The parties’ submissions 51. The Government submitted that the applicants had not exhausted domestic remedies. While one of the applicants had joined the criminal proceedings in the Spanish courts as a civil party, this was irrelevant in so far as their application was only against Belgium. Although the application was directed solely against the Belgian State, the applicants had not taken any procedural steps in Belgium apart from the “informal courtesy correspondence” between one of the applicants and the President of the Court of Cassation. The Government conceded that the applicants could not be criticised for not intervening in the proceedings for execution of the European arrest warrant as victims of the alleged offence, since those proceedings mainly concerned the public prosecutor’s office and the arrested person whose surrender was requested. However, it was clear from the letter of 27 November 2014 from the President of the Court of Cassation (see paragraph 16 above) that the door had been open to dialogue in order to explore with the federal prosecuting authorities possible means of overcoming the refusal to execute the European arrest warrant. In their additional observations the Government also referred to the option available to the applicants of making an application under the urgent procedure or bringing an action for damages. 52. For their part, the applicants argued that they had exhausted domestic remedies in Spain, as one of the applicants had participated as a civil party in the criminal proceedings in the Spanish courts concerning their father’s murder. As to Belgium, they contended that domestic remedies had been exhausted by means of the appeals lodged by the Federal Prosecutor’s Office, given the latter’s task of representing victims, and that they could not lodge any other appeal or take other procedural steps. In their view, the letter they had received from the President of the Court of Cassation was to be regarded purely as a courteous and informal reply to the victims. (b) The Court’s assessment 53. The Court reiterates that the rule on the exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism, given the context of protecting human rights. The Court has also accepted that this rule is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014, and Gherghina v. Romania [GC] (dec.), no. 42219/07, §§ 83-84, 9 July 2015, with further references). 54. As regards the burden of proof, it is incumbent on the respondent Government to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time. Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see Vučković and Others, cited above, § 77, and Gherghina, cited above, §§ 88-89, with further references). 55. Turning to the particular circumstances of the present case, the Court notes that the Spanish authorities instituted a criminal investigation into the case and that one of the applicants joined the criminal proceedings against N.J.E. in Spain as a civil party. However, the present case concerns the proceedings for execution of the European arrest warrant in the Belgian courts, which are the direct source of the current inability to prosecute N.J.E.; there is no provision, either under the framework decision or under Belgian law, for the applicants to take part or intervene in those proceedings. 56. As to the Government’s argument concerning the letter from the President of the Court of Cassation and their contention that the applicants could have contacted the Belgian Federal Prosecutor’s Office with a view to finding a means of overcoming the refusal to execute the European arrest warrant, the Court considers that this option is vague and speculative and cannot be regarded as capable of remedying directly the impugned state of affairs or offering reasonable prospects of success (see, in particular, paragraphs 11 and 26 above). 57. As regards an urgent application or an action for damages, the Court notes that the Government did not produce any evidence in support of their claim apt to demonstrate that these remedies would be effective in the present case. 58. Hence, while it is true that the applicants did not make use of the remedies suggested by the Government, the Court considers that the Government, with whom the burden of proof lies in this regard (see paragraph 54 above), have not demonstrated that the use of the remedies to which they referred would be capable of affording redress in respect of the applicants’ complaint under Article 2 of the Convention. 59. In view of the foregoing, the Court considers that the application should not be dismissed for failure to exhaust domestic remedies. The six-month time-limit (a) The parties’ submissions 60. Lastly, the Government raised an objection of failure to comply with the six-month time-limit. They argued that the harm alleged by the applicants did not stem from the refusal to execute the 2015 European arrest warrant, but rather from the decision of the Indictments Division of 31 October 2013, upheld by the Court of Cassation on 19 November 2013, refusing to execute the European arrest warrants issued in 2004 and 2005. They therefore criticised the applicants for not challenging this first refusal decision before the Court. Moreover, the Indictments Division had held on 14 July 2016 that the 2015 arrest warrant did not contain any new information compared with the warrants issued in 2004 and 2005. 61. The applicants argued that the information concerning the follow-up by the CPT, referred to in the European arrest warrant issued on 8 May 2015, had clarified the situation in Spanish prisons and the conditions of the detention regime applicable to suspected terrorists, prompting the Spanish judicial authorities to issue this new arrest warrant, the refusal to execute which had triggered the start of a new six-month period. They therefore submitted that this period had started running on 27 July 2016, the date of the final Court of Cassation judgment terminating the domestic proceedings. (b) The Court’s assessment 62. In the present case the Court notes that, although the first set of surrender proceedings indeed ended with a Court of Cassation judgment of 19 November 2013, the Government did not adduce any evidence demonstrating that the applicants, who had not been parties to the proceedings in question, had been informed of this development at that time. Only as of the time when the applicants wrote to the President of the Court of Cassation, on 17 November 2014 (see paragraph 16 above), can it be said with certainty that they were aware of the Belgian authorities’ refusal. On 8 May 2015, that is, within six months of that contact, a fresh European arrest warrant based on new information was issued by the Spanish courts (see paragraph 17 above). There followed a new set of proceedings for execution of the arrest warrant, which terminated with a Court of Cassation judgment of 27 July 2016. 63. Reiterating that Article 35 § 1 of the Convention cannot require an applicant to lodge his or her complaint with the Court before his or her position in connection with the matter has been finally settled at the domestic level, the Court considers that the six-month period in the present case began running on 27 July 2016. 64. In the light of the foregoing, the Court concludes that the Government’s objection that the application was lodged out of time should be dismissed. Conclusion as to admissibility 65. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions (a) The applicants 66. The applicants contended that the Belgian State’s refusal to execute the European arrest warrants issued by the Spanish authorities in respect of the suspected perpetrator of their father’s murder was unjustified and manifestly unreasonable, and was therefore in breach of the procedural aspect of Article 2 of the Convention. Taking as its basis an arbitrary assessment of one of the exceptions allowed to the execution of a European arrest warrant, it made it effectively impossible for the suspected perpetrator of their father’s murder to be tried. 67. In the applicants’ view, even if the Belgian courts had noted a risk of a breach of N.J.E.’s fundamental rights, they should not have refused to surrender her on that ground alone. The Belgian courts had had a duty to specify the alleged risk in the individual case by examining the specific and practical impact which the surrender was liable to have on N.J.E. In order to do that, they should have requested more information from the Spanish authorities concerning the conditions of detention to which N.J.E. would have been subjected. This would have enabled Spain, as the State issuing the European arrest warrant, to provide assurances that N.J.E. would not be subjected to inhuman or degrading treatment. 68. As to the reasons given by the Belgian courts, the applicants contended that these were political rather than legal and that they were inaccurate. During the second set of surrender proceedings the Belgian courts had merely echoed the arguments advanced by the Indictments Division of the Ghent Court of Appeal in its order of 31 October 2013, thereby reproducing a “false, mistaken and inappropriate” portrayal of Spain. 69. In contrast to the case of M.S.S. v. Belgium and Greece ([GC], no. 30696/09, ECHR 2011), the international reports in the present case were not sufficient to rebut the presumption of observance of human rights. The shortcomings that had been highlighted related solely to the conditions of incommunicado detention, which did not apply in the case of a surrender requested for the purposes of a criminal prosecution, as in the present case. In view of the time that had elapsed since the events in issue and the fact that “the legal criteria for application” were not met (see paragraph 78 below), and given that the other members of the commando unit had already been convicted, the regime of incommunicado detention in police custody would in no circumstances be applied in N.J.E.’s case, and she would be brought directly before the judicial authorities. The applicants criticised the Belgian authorities for not obtaining this information from their Spanish counterparts. 70. Lastly, relying on a report from the State Secretariat for Security of the Spanish Interior Ministry, the applicants asserted that between 2011 and 2017 European arrest warrants issued by the Spanish judicial authorities, concerning 70 individuals linked to the terrorist organisation ETA, had been executed and that the countries executing the warrants (including France, the United Kingdom and Italy) had not identified any risk of a violation of the fundamental rights of the persons to be surrendered. Moreover, it emerged from the report that Belgium itself had executed four European arrest warrants issued by the Audiencia Nacional in respect of suspected members of ETA (in 2005, 2010 and 2011). (b) The Belgian Government 71. The Belgian Government stressed that the obligations arising under the procedural limb of Article 2 lay first and foremost with the Spanish State. While it was true that the Court had found that, where several States were involved, the other States could also have obligations under Article 2 of the Convention, the Court should find in the present case that Belgium had fulfilled its obligation to cooperate. The Belgian judicial authorities had arrested N.J.E. Only later, during the proceedings before the investigating courts, had it become clear that N.J.E. could not be surrendered owing to the real risk that she would be subjected to ill-treatment in Spanish prisons. Hence, although the Belgian authorities had wished to cooperate with Spain, their obligations under Article 3 of the Convention had prevented this cooperation from resulting in N.J.E.’s surrender. 72. The Government emphasised the very awkward situation facing the Belgian authorities in that regard. Whatever option they chose they were in danger of breaching the Convention. That situation was especially regrettable given that Belgium was not responsible either for the criminal investigation in Spain or for the situation in Spanish prisons and that no investigation was being conducted in Belgium. 73. In such a situation the Court’s role was to ascertain whether the national authorities had struck a fair balance between the competing rights and had taken all the relevant factors into account. In that connection, given the absolute nature of Article 3, it should be regarded as normal for the Belgian judicial authorities to give precedence to the protection of this absolute right over their duty to cooperate in the context of the procedural limb of Article 2. 74. The Government further stressed that the Belgian courts had based their decisions on reports by the CPT and the United Nations Human Rights Committee. Consequently, they could not be said to have taken those decisions lightly, in arbitrary fashion or without credible supporting information. 75. Lastly, the Government argued that the presumption of protection of human rights which underpinned the system of mutual trust between EU member States, of which the European arrest warrant formed a part, was not an “irrebuttable presumption”. Referring to recitals 12 and 13 of the Framework Decision on the European arrest warrant and to section 4(5) of the Belgian European Arrest Warrant Act, they argued that the principle of mutual trust could not displace the obligation of States Parties to the Convention to satisfy themselves that a person’s removal was not liable to result in an infringement of his or her fundamental rights in the requesting State. 76. Pointing out that in the present case nobody questioned the fact that N.J.E. was of Basque origin and was suspected of involvement in ETA’s activities, the Government submitted that the two criteria laid down by the Court with regard to Article 3 of the Convention – namely, the availability of reliable international reports demonstrating the existence of the risks in question and the ability of the applicant to demonstrate that he or she belonged to a group targeted by the measures allegedly contrary to that provision – had been met in the present case. 77. The Government concluded that in view of the information available to the Belgian courts at the time they took their decisions, and of the obligations flowing from Article 3 of the Convention, those courts had acted in full compliance with Belgium’s obligations under the Convention and could not be said to have infringed Article 2 of the Convention. (c) Observations of the third-party interveners 78. The Spanish Government contended that the Belgian authorities’ refusal to execute the European arrest warrant had been based on general, erroneous considerations rather than on any actual circumstance applicable to the requested person. They argued in particular, citing the report on the Spanish legislation concerning incommunicado detention in police custody referred to in the European arrest warrant, that the legislation in question was not applicable in N.J.E.’s case, as the legal regime in question applied only for the first five days following the initial detention of a suspected terrorist, in order to prevent evidence being lost or the damage caused to the victims being aggravated, and to prevent further attacks. Moreover, Spain was a democracy of almost forty years’ standing, with one of the most advanced constitutions with regard to human rights protection, and was the country with the fewest cases before the Court in relative terms. Relying on the Court’s case-law, the Spanish Government concluded that there was no real or substantial risk that N.J.E. would be subjected to any violation of Article 3 if she were tried before the Spanish courts. The Court’s assessment 79. Having already concluded that the applicants come within Belgian jurisdiction, the Court must now determine the extent and scope of Belgium’s procedural obligation to cooperate in the circumstances of the present case (see paragraphs 42-43 above). It will then have to ascertain to what extent Belgium complied with that obligation. 80. The Court observes that the applicants’ complaint under Article 2 of the Convention stemmed from the refusal of the Belgian courts to execute the European arrest warrants issued by the Spanish authorities in respect of N.J.E. They complained that the Belgian authorities’ refusal to execute the European arrest warrants deprived them of the enjoyment of their right to an effective official investigation by Spain. As the Court has already stressed, it is therefore not called upon to determine whether Belgium is responsible for any acts or procedural omissions in the context of an investigation into the case, which falls exclusively within the jurisdiction of the Spanish authorities. 81. That being said, the Court observes that in its judgment in Güzelyurtlu and Others (cited above, §§ 232-35), it found as follows in this regard: “232. The Court has previously held that in interpreting the Convention regard must be had to its special character as a treaty for the collective enforcement of human rights and fundamental freedoms ... This collective character may, in some specific circumstances, imply a duty for Contracting States to act jointly and to cooperate in order to protect the rights and freedoms they have undertaken to secure within their jurisdiction ... In cases where an effective investigation into an unlawful killing which occurred within the jurisdiction of one Contracting State requires the involvement of more than one Contracting State, the Court finds that the Convention’s special character as a collective enforcement treaty entails in principle an obligation on the part of the States concerned to cooperate effectively with each other in order to elucidate the circumstances of the killing and to bring the perpetrators to justice. 233. The Court accordingly takes the view that Article 2 may require from both States a two-way obligation to cooperate with each other, implying at the same time an obligation to seek assistance and an obligation to afford assistance. The nature and scope of these obligations will inevitably depend on the circumstances of each particular case, for instance whether the main items of evidence are located on the territory of the Contracting State concerned or whether the suspects have fled there. 234. Such a duty is in keeping with the effective protection of the right to life as guaranteed by Article 2. Indeed, to find otherwise would sit ill with the State’s obligation under Article 2 to protect the right to life, read in conjunction with the State’s general duty under Article 1 to ‘secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention’, since it would hamper investigations into unlawful killings and necessarily lead to impunity for those responsible. Such a result could frustrate the purpose of the protection under Article 2 and render illusory the guarantees in respect of an individual’s right to life. The object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective ... 235. The Court notes, however, that the obligation to cooperate, which is incumbent on States under the procedural limb of Article 2, can only be an obligation of means, not one of result, in line with what the Court has established in respect of the obligation to investigate ... This means that the States concerned must take whatever reasonable steps they can to cooperate with each other, exhausting in good faith the possibilities available to them under the applicable international instruments on mutual legal assistance and cooperation in criminal matters. In this connection, the Court is aware that Contracting States cannot cooperate with each other in a legal vacuum; specific formalised modalities of cooperation between States have developed in international criminal law. This approach is consistent with the previous transnational cases under the procedural limb of Articles 2, 3 and 4, in which the Court has generally referred to existing extradition and other mutual assistance instruments binding on the States concerned ... 236. ... In this context, the procedural obligation to cooperate will only be breached in respect of a State required to seek cooperation if it has failed to trigger the proper mechanisms for cooperation under the relevant international treaties; and in respect of the requested State, if it has failed to respond properly or has not been able to invoke a legitimate ground for refusing the cooperation requested under those instruments.” 82. In the present case the mechanism under which Spain sought Belgium’s cooperation was the system put in place within the EU by the Framework Decision on the European arrest warrant (see paragraphs 23-24 above). Applying the principles set out above, the Court must therefore first examine whether, in this context, the Belgian authorities responded properly to the request for cooperation. It must then verify whether the refusal to cooperate was based on legitimate grounds. 83. As regards the first question, the Court observes that the Belgian authorities provided their Spanish counterparts with a properly reasoned response. As the Belgian Court of Cassation pointed out in its judgment of 19 November 2013, the mechanism in question is based on a high degree of trust between member States which entails a presumption of observance of fundamental rights by the issuing State. In view of this principle, any refusal to surrender an individual must be supported by detailed evidence of a clear threat to his or her fundamental rights capable of rebutting the presumption in question. In the present case the Court of Cassation found that the Indictments Division of the Ghent Court of Appeal, in its judgment of 31 October 2013, had provided legal justification, on the basis of section 4(5) of the Belgian European Arrest Warrant Act, for its decision to refuse execution of the European arrest warrants issued by the Spanish investigating judge, on account of the risk of an infringement of N.J.E.’s fundamental rights in the event of her surrender to Spain, and in particular the risk that she would be detained there in conditions contrary to Article 3 of the Convention (see paragraph 12 above). In its judgment of 14 July 2016 the Indictments Division essentially referred to its previous judgment, taking the view that the fresh information referred to in the new European arrest warrant did not call for a different assessment and that the previous assessment was in fact confirmed by the observations made by the Human Rights Committee in 2015 (see paragraph 20 above). 84. The Court notes that the approach taken by the Belgian courts is compatible with the principles it has set out in its case-law (see Pirozzi, cited above, §§ 57-64, which echoes the methodology advocated in Avotiņš v. Latvia [GC], no. 17502/07, §§ 105-27, 23 May 2016). According to that case-law, in the context of execution of a European arrest warrant by an EU member State, the mutual recognition mechanism should not be applied automatically and mechanically to the detriment of fundamental rights. 85. As to the second question the Court emphasises that, from the standpoint of the Convention, a risk to the person whose surrender is sought of being subjected to inhuman and degrading treatment on account of the conditions of detention in Spain may constitute a legitimate ground for refusing execution of the European arrest warrant and thus for refusing cooperation with Spain. Nevertheless, given the presence of third-party rights, the finding that such a risk exists must have a sufficient factual basis. 86. In this connection the Court notes that the Indictments Division based its decision mainly on international reports and on the context of “Spain’s contemporary political history” (see paragraph 12 above). In its judgment of 31 October 2013 it referred in particular to the report drawn up following the CPT’s periodic visit to Spain a few years previously, in 2011. Despite the information provided in support of the European arrest warrant issued on 8 May 2015, particularly regarding the fact that the CPT’s subsequent reports made no mention of the issue and regarding the characteristics of incommunicado detention in Spain (see paragraph 17 above), the Indictments Division, in its judgment of 14 July 2016, found that the information in question did not enable it to depart from the assessment it had made in 2013 (see paragraph 20 above). It is true that the Indictments Division referred to observations published in 2015 by the Human Rights Committee concerning the existence of incommunicado detention (see paragraph 28 above), but it did not conduct a detailed, updated examination of the situation prevailing in 2016 and did not seek to identify a real and individualised risk of a violation of N.J.E.’s Convention rights or any structural shortcomings with regard to conditions of detention in Spain. 87. The Court also notes that, according to the Spanish Government’s observations concerning the legislative framework governing incommunicado detention, that regime would not be applicable in a situation such as that in the present case. As this issue was not discussed before the Belgian courts, the Court does not consider it necessary to determine it. 88. The Court further takes note of the applicants’ argument, not disputed by the Government, to the effect that numerous European arrest warrants had been issued and executed in respect of suspected members of ETA without the executing States identifying any risk of a violation of the fundamental rights of the persons being surrendered, and that Belgium had been among the executing States (see paragraph 70 above). 89. Lastly, the Court is of the view that the circumstances of the case and the interests at stake should have prompted the Belgian authorities, making use of the possibility afforded by Belgian law (section 15 of the European Arrest Warrant Act, see paragraph 25 above), to request additional information concerning the application of the detention regime in N.J.E.’s case, and in particular concerning the place and conditions of detention, in order to ascertain whether there was a real and concrete risk of a violation of the Convention in the event of her surrender. 90. In view of the foregoing, the Court considers that the examination conducted by the Belgian courts during the surrender proceedings was not sufficiently thorough for it to find that the ground they relied on in refusing to surrender N.J.E., to the detriment of the applicants’ rights, had a sufficient factual basis. 91. The Court therefore concludes that Belgium failed in its obligation to cooperate arising under the procedural limb of Article 2 of the Convention, and that there has been a violation of that provision. 92. The Court would emphasise that this finding of a violation of Article 2 of the Convention does not necessarily entail a requirement for Belgium to surrender N.J.E. to the Spanish authorities. The reason which has prompted the Court to find a violation of Article 2 is the lack of sufficient factual basis for the refusal to surrender her. This in no way releases the Belgian authorities from their obligation to ensure that in the event of her surrender to the Spanish authorities N.J.E. would not run a risk of treatment contrary to Article 3 of the Convention. More generally, this judgment cannot be construed as lessening the obligation for States not to extradite a person to a requesting country where there are serious grounds to believe that if the person is extradited to that country he or she will run a real risk of being subjected to treatment contrary to Article 3 (see, in particular, Soering v. the United Kingdom, 7 July 1989, § 88, Series A no. 161; Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005 ‑ I; and Trabelsi v. Belgium, no. 140/10, § 116, ECHR 2014 (extracts)), and hence to verify that no such risk exists. APPLICATION OF ARTICLE 41 OF THE CONVENTION 93. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 94. The applicants claimed an overall amount of 150,000 euros (EUR) in respect of the non-pecuniary damage they had allegedly sustained on account of the violation of the procedural limb of Article 2 of the Convention. 95. The Government contended that the amount claimed by the applicants did not correspond to the Court’s practice in cases of this kind, and that the award should in any event not exceed EUR 5,000. 96. The Court observes that the Belgian State is not responsible for the death of the applicants’ father or the resulting suffering. Nevertheless, it considers that the Belgian authorities’ failure to cooperate, which made it impossible to prosecute the suspected murderer of the applicants’ father, must have caused the applicants considerable distress and frustration. Ruling on an equitable basis as required by Article 41, it awards the applicants EUR 5,000 each under this head. Costs and expenses 97. Submitting documentary evidence, the applicants claimed EUR 7,260 for the costs and expenses incurred in the proceedings before the Court. 98. The Government left the matter to the Court’s discretion. 99. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, in view of the documents in its possession, the Court considers the amount claimed for the proceedings before it to be reasonable and awards it to the applicants. Default interest 100. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 2 (right to life) of the Convention under its procedural aspect (effective investigation). Observing, firstly, that a risk to the person whose surrender was requested of being subjected to inhuman or degrading treatment could constitute a legitimate ground for refusing to execute a European arrest warrant and thus for refusing the cooperation requested, it noted, however, that the finding that such a risk existed had to have a sufficient factual basis. In the present case, the Court found, in particular, that the scrutiny performed by the Belgian courts during the surrender proceedings had not been sufficiently thorough for it to find that the ground they relied on in refusing to surrender N.J.E., to the detriment of the applicants’ rights, had had a sufficient factual basis. Among other things, the Belgian authorities had not sought to identify a real and individual risk of a violation of N.J.E.’s Convention rights or any structural shortcomings with regard to conditions of detention in Spain. However, the Court stressed that the finding of a violation did not necessarily imply that Belgium was required to surrender N.J.E. to the Spanish authorities. It was the lack of sufficient factual support for the refusal to surrender her that had led the Court to find a violation of Article 2 of the Convention. That in no way lessened the obligation for the Belgian authorities to verify that N.J.E. would not run a risk of treatment contrary to Article 3 of the Convention if she were surrendered to the Spanish authorities. |
778 | Medical negligence and liability of health professionals | II. RELEVANT DOMESTIC LAW A. The Criminal Code 86. The Criminal Code ( Kazenski zakonik, Official Gazette no. 63/94), as amended, defines, under the heading “Criminal Offences causing Damage to Health” criminal offences concerning injury caused by negligent health care. In addition, Article 129 of the Criminal Code provides that anyone who causes the death of another by negligence shall be sentenced to imprisonment for not less than six months and not more than five years. These offences are subject to mandatory prosecution by the public prosecutor, but a “subsidiary” prosecution by an aggrieved party will also lie ( see paragraph 88 below). B. The Criminal Procedure Act 87. Criminal proceedings in Slovenia are regulated by the Criminal Procedure Act ( Zakon o kazenskem postopku, Official Gazette no. 63/94 – “ the CPA ” ) and are based on the principles of legality and officiality. Prosecution is mandatory when reasonable suspicion ( utemeljeni sum ) exists that a criminal offence subject to mandatory prosecution has been committed. 88. Public prosecutions are conducted by the public prosecutor's office. However, if the public prosecutor dismisses the criminal complaint or drops the prosecution at any time during the course of the proceedings, the aggrieved party has the right to take over the conduct of the proceedings in the capacity of “subsidiary” prosecutor, that is, as an aggrieved party acting as a prosecutor (CPA, section 19(3)). A “subsidiary” prosecutor has, in principle, the same procedural rights as the public prosecutor, except those that are vested in the public prosecutor as an official authority (CPA, section 63(1)). If the “subsidiary” prosecutor takes over the conduct of the proceedings, the public prosecutor is entitled at any time pending the conclusion of the main hearing to resume the conduct of the prosecution (CPA, section 63(2)). 89. Criminal investigations are conducted by the investigating judge at the request of a public or “subsidiary” prosecutor. If the investigating judge does not agree with a request to open an investigation, he must refer it to an interlocutory-proceedings panel of three judges, which then decides whether to open a criminal investigation. If the investigating judge grants the request, the accused may lodge an appeal with the interlocutory-proceedings panel. Parties to the proceedings may appeal against the interlocutory-proceedings panel's decision to the Higher Court ( višje sodišče ). Appeals do not stay the execution of the decision to open an investigation (section 169 of the CPA). 90. If a request for an investigation has been dismissed owing to a lack of reasonable suspicion that the suspect has committed a criminal offence, the criminal proceedings may be reopened at the request of the public or “subsidiary” prosecutor provided new evidence is adduced on the basis of which the interlocutory-proceedings panel is able to satisfy itself that the conditions for instituting criminal proceedings are met (CPA, section 409). 91. Section 184 of the CPA provides that the investigating judge must end the investigation once the circumstances of the case have been sufficiently elucidated. The prosecutor must within the following fifteen days either request further investigative measures, lodge an indictment or drop the charges. 92. As regards the aggrieved party's role in the investigation, the relevant part of section 186 of the CPA provides: “(1) An aggrieved party acting as a prosecutor ... may request the investigating judge to open an investigation or propose additional investigative measures. During the course of the investigation they may also submit other proposals to the investigating judge. (2) The institution, conduct, suspension and termination of an investigation shall be governed, mutatis mutandis, by the provisions of the present Act applying to ... the investigation conducted at the request of the public prosecutor ... (3) When the investigating judge considers that the investigation is complete he or she shall inform the aggrieved party acting as a prosecutor. .. The investigating judge shall also advise such aggrieved party .... that he or she must file the indictment ... within fifteen days, failing which he or she may be deemed to have withdrawn from the prosecution and a decision may be taken to discontinue the proceedings. The investigating judge shall also be bound to give such warning to the aggrieved party acting as a prosecutor ... in cases where the panel has dismissed his or her motion to supplement the investigation because it is of the opinion that the matter has been sufficiently investigated.” 93. After the investigation has ended, court proceedings may be conducted only on the basis of an indictment (CPA, section 268). Under section 274 of the CPA, the accused may lodge an objection to the indictment within eight days after its receipt. The objection is examined by the interlocutory-proceedings panel. Section 276 of the CPA provides, inter alia : “( 2) If in considering the objection the interlocutory-proceedings panel discovers errors or defects in the indictment (section 269) or in the procedure itself, or finds that further investigations are required before the decision on the indictment is taken, it shall return the indictment to the prosecutor with directions to correct the established defects or to supplement ... the investigation. The prosecutor shall within three days of being informed of the decision of the panel submit an amended indictment or request a ... supplementary investigation. ... ” 94. In addition, the relevant part of section 277 of the CPA provides: “(1) In deciding an objection to the indictment the interlocutory-proceedings panel shall not accept the indictment and shall discontinue the criminal proceedings if it finds that: ... (3) a criminal prosecution is statute-barred ... (4) there is not enough evidence to justify reasonable suspicion that the accused has committed the act with which he is charged.” C. The Code of Obligations 95. Under the provisions of the Obligations Act ( Zakon o obligacijskih razmerjih, Socialist Federative Republic of Yugoslavia's (“SFRJ”) Official Gazette no. 29/1978,) and its successor from 1 January 2002, the Code of Obligations ( Obligacijski zakonik, Official Gazette no. 83/2001), health institutions and their employees are liable for pecuniary and non-pecuniary damage resulting from the death of a patient through medical malpractice. The employer may incur civil liability for its own acts or omissions or vicarious liability for damage caused by its employees provided that the death or injury resulted from the employee's failure to conform to the relevant standard of care. Employees are directly liable for death or injury under the civil law only if it is caused intentionally. However, the employer has a right to bring a claim for a contribution from the employee if the death or injury was caused by the latter's gross negligence. D. The Civil Procedure Act 96. Section 12 of the Civil Procedure Act ( Zakon o pravdnem postopku, SFRJ Official Gazette no. 4-37/77), as amended, provides: “When the decision of the court depends on a preliminary determination of the question whether a certain right or legal relationship exists, but [the question] has not yet been decided by a court or other competent authority (preliminary question), the court may determine the question by itself, save as otherwise provided in special legislation. The court's decision on the preliminary question shall be effective only in the proceedings in which the question was determined. In civil proceedings, the court shall be bound with respect to the existence of a criminal offence and criminal liability by a finding of guilt by a criminal court judgment that is final.” 97. The relevant part of section 213 of the Civil Procedure Act provides as follows: “In addition to the examples specifically given in this Act, the court may order a stay of proceedings: 1. if it decides not to determine the preliminary question itself (section 12)...” 98. The relevant part of section 215 of the Civil Procedure Act provides: “If the court has stayed the proceedings in accordance with the first line of the first paragraph of ... section 213, the proceedings shall resume once the [other] proceedings are finally concluded ( pravnomočno končan postopek ) ... or when the court finds that there is no longer any reason to await the end [of the other proceedings]. In all cases, the discontinued proceedings shall continue at the relevant party's request, immediately after the reasons justifying the stay cease to exist.” 99. Equivalent provisions can be found in sections 13, 14, 206 and 208 of the new Civil Procedure Act ( Zakon o pravdnem postopku, Official Gazette no. 83/2001), which came into force on 14 July 1999. E. Regulation concerning the organisation and functioning of the Tribunal of the Medical Association 100. The Regulation on the organisation and functioning of the Tribunal of the Medical Association of Slovenia (“the Medical Tribunal”) ( Pravilnik o organizaciji in delu razsodišča Zdravniške Zbornice Slovenije ), issued on 20 March 2002, lays down, inter alia, the procedure for establishing the responsibility of doctors for breaches of the professional rules and the disciplinary measures which can be taken as a result. The Commissioner of the Medical Association ( tožilec Zbornice – “the Commissioner” ), who is elected from among the members of the Medical Association, is autonomous and has authority to lodge a case with the first-instance Medical Tribunal. An aggrieved party may request the Commissioner to start the proceedings, but the Commissioner may reject such a request. If so, the aggrieved party may invite the Medical Tribunal to conduct a preliminary investigation. However, the power to file a formal case with the Medical Tribunal is vested solely in the Commissioner. 101. Article 7 of the Regulation provides that the Medical Tribunal must base its decision solely on the indictment and the evidence submitted by the Commissioner and the accused doctor. If the accused doctor or the Commissioner is dissatisfied with the verdict, he or she may appeal to the second-instance Medical Tribunal. F. The Act on the Protection of the Right to a Trial without Undue Delay 102. On 1 January 2007 the Act on the Protection of the Right to a Trial without Undue Delay ( Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Gazette no. 49/2006 – “the 2006 Act”) became operational. The 2006 Act provides for two remedies to expedite pending proceedings – a supervisory appeal and a motion for a deadline to be set ( rokovni predlog ) – and, ultimately, for a claim for just satisfaction in respect of damage sustained because of undue delay ( zahteva za pravično zadoščenje ). 103. The above remedies are available, inter alia, to parties to civil proceedings and aggrieved parties in criminal proceedings. 104. The acceleratory remedies can be applied for during first- or second-instance proceedings. In addition, the 2006 Act also provides the possibility of redress through a compensatory remedy, namely by bringing a claim for just satisfaction. By virtue of sections 15, 19 and 20 of the 2006 Act a party wishing to lodge a claim for just satisfaction must satisfy two cumulative conditions. Firstly, during the first- and/or second-instance proceedings the applicant must have used the supervisory-appeal procedure or lodged a motion for a deadline. Secondly, the proceedings must have been finally resolved ( pravnomočno končan ). The final resolution of the case in principle refers to the final decision against which no ordinary appeal lies; this is normally the first-, or if an appeal has been lodged, the second-instance court's decision. Moreover, the amount which can be awarded in respect of non-pecuniary damage sustained as a result of the excessive length of the proceedings in each finally resolved case cannot exceed 5,000 euros (EUR) (for a more detailed presentation of the relevant provisions of the 2006 Act, see Žunič v. Slovenia, (dec) no. 24342/04, 18 October 2007 ). IV. RELEVANT INTERNATIONAL LAW AND PRACTICE A. The Vienna Convention of 1969 on the Law of Treaties 106. The Vienna Convention on the Law of Treaties (the Vienna Convention) entered into force on 27 January 1980. Article 28, which contains the principle of the non-retroactivity of treaties, provides: “Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.” B. International Law Commission's Draft Articles on Responsibility of States for Internationally Wrongful Acts (adopted by the International Law Commission on 9 August 2001) 107. Article 13, which is headed “International obligation in force for a State”, provides: “An act of a State does not constitute a breach of an international obligation unless the State is bound by the obligation in question at the time the act occurs.” 108. Furthermore, Article 14, which is headed “Extension in time of the breach of an international obligation”, reads as follows: “1. The breach of an international obligation by an act of a State not having a continuing character occurs at the moment when the act is performed, even if its effects continue. 2. The breach of an international obligation by an act of a State having a continuing character extends over the entire period during which the act continues and remains not in conformity with the international obligation. 3. The breach of an international obligation requiring a State to prevent a given event occurs when the event occurs and extends over the entire period during which the event continues and remains not in conformity with that obligation.” C. The International Court of Justice 109. The approach adopted by the International Court of Justice (ICJ) in cases raising an issue as to ratione temporis jurisdiction has focused on the source or real cause of the dispute (see also the case-law cited in Blečić v. Croatia [GC], no. 59532/00, § 74, ECHR 2006 ‑ III ). In the Case concerning Right of Passage over Indian Territory (Merits) (Judgment of 12 April 1960: I.C.J. Reports 1960 p.p. 33-36), the ICJ, relying on the jurisprudence of the Permanent Court of International Justice (PCIJ), found it had temporal jurisdiction to deal with a dispute concerning India's denial to Portugal of passage between its territory and its two enclaves in Indian Territory in 1954. India argued, inter alia, that the dispute was inadmissible ratione temporis as the Portuguese claim to a right of passage predated the court's jurisdiction, which had begun on 5 February 1930. The ICJ, however, found that: “ ... it appeared ..., that the dispute submitted to the Court has a threefold subject: (1) The disputed existence of a right of passage in favour of Portugal; (2) The alleged failure of India in July 1954 to comply with its obligations concerning that right of passage; (3) The redress of the illegal situation flowing from that failure. The dispute before the Court, having this three-fold subject, could not arise until all its constituent elements had come into existence. Among these are the obstacles which India is alleged to have placed in the way of exercise of passage by Portugal in 1954. The dispute therefore as submitted to the Court could not have originated until 1954.” 110. The ICJ therefore found that there was not, so far as the date of the birth of the dispute was concerned, any bar to its jurisdiction. Referring to the terms of the Indian Declaration of Acceptance of the court's jurisdiction, the ICJ noted that the Declaration did not proceed on the principle of excluding from the acceptance any given dispute, but proceeded in a positive manner on the basis of indicating the disputes which were included within that acceptance. The ICJ found: “ .... By its terms, the jurisdiction of the Court is accepted'over all disputes arising after February 5th, 1930, with regard to situations or facts subsequent to the same date'. In accordance with the terms of the Declaration, the Court must hold that it has jurisdiction if it finds that the dispute submitted to it is a dispute with regard to a situation subsequent to 5 February 1930 or is one with regard to facts subsequent to that date. The facts or situations to which regard must be had in this connection are those with regard to which the dispute has arisen or, in other words, as was said by the Permanent Court in the case concerning the Electricity Company of Sofia and Bulgaria, only'those which must be considered as being the source of the dispute', those which are its'real cause'. ... The Permanent Court thus drew a distinction between the situations or facts which constitute the source of the rights claimed by one of the Parties and the situations or facts which are the source of the dispute. Only the latter are to be taken into account for the purpose of applying the Declaration accepting the jurisdiction of the Court.” The ICJ went on to find that: “ ... it was only in 1954 that such a controversy arose and the dispute relates both to the existence of a right of passage to go into the enclaved territories and to India's failure to comply with obligations which, according to Portugal, were binding upon it in this connection. It was from all of this that the dispute referred to the Court arose; it is with regard to all of this that the dispute exists. This whole, whatever may have been the earlier origin of one of its parts, came into existence only after 5 February 1930. The time-condition to which acceptance of the jurisdiction of the Court was made subject by the Declaration of India is therefore complied with.” D. The United Nations Human Rights Committee 111. The United Nations Human Rights Committee (“the Committee”) has recognised that the States have positive obligations to protect the right to life. These include an obligation to carry out effective investigations. The Committee has inferred these obligations from a combination of both Articles 2 (respecting rights and effective remedy) and 6 (right to life) of the International Covenant on Civil and Political Rights (“the Covenant”). In this connection, it is important to note that according to the Committee's jurisprudence, the right to a remedy can only be breached in conjunction with a substantive right, which means that in cases where the death occurred outside its temporal jurisdiction, there could be no breach of Article 2 with regard to Article 6 (see paragraph 112 below – S.E. v. Argentina ). The Committee, however, found that a lack of investigation into the disappearance or death may result in inhuman treatment (Article 7 of the Covenant) of the victim's family, even if the disappearance or death took place before the entry into force of the Optional Protocol granting a right to submit individual communications (see paragraph 113 below – Sankara et al. v. Burkina Faso ). 112. In the case of S.E. v. Argentina (Communication No. 275/1988, which was declared inadmissible on 26 March 1990 ), the applicant's three children had been abducted by Argentine security forces in 1976 and their whereabouts had been unknown ever since. On 8 November 1986 the Covenant and the Optional Protocol entered into force in respect of Argentina. In December 1986 and June 1987 the Argentine legislature enacted legislation preventing new investigations into the so-called “dirty-war” and providing an amnesty for members of the security forces for related crimes. The applicant claimed that the enactment of this legislation constituted violations by Argentina of its obligations under Article 2, paragraphs 2 and 3, of the Covenant. Taking into account that in order for the right to a remedy to arise, a violation of a substantive right must be established, the Committee observed that: “ 5.3. ... the events which could have constituted violations of several articles of the Covenant and in respect of which remedies could have been invoked, occurred prior to the entry into force of the Covenant and of the Optional Protocol for Argentina. Therefore, the matter cannot be considered by the Committee, as this aspect of the communication is inadmissible ratione temporis .” 113. In the more recent case of Mariam Sankara et al. v. Burkina Faso (Communication No. 1159/2003, 28 March 2006 ), the Committee found it did have jurisdiction ratione temporis in relation to the investigation into the disappearance of Thomas Sankara, who had been abducted and murdered in 1987, that is to say well before 4 April 1999, when the State became a party to the Optional Protocol. In 1997, within the ten-year limitation period, his wife lodged a complaint with a court against a person or persons unknown for the assassination of Mr Sankara and the falsification of a death certificate. She claimed that no inquiry had been conducted. The Committee, which ultimately found violations of Article 7, on account of the suffering of Mr Sankara's family, and Article 14, on account of the breach of the guarantee of equality in the proceedings, considered that: “6.2 ... a distinction should be drawn between the complaint relating to Mr Thomas Sankara and the complaint concerning Ms Sankara and her children. The Committee considered that the death of Thomas Sankara, which may have involved violations of several articles of the Covenant, occurred on 15 October 1987, hence before the Covenant and the Optional Protocol entered into force for Burkina Faso. This part of the communication was therefore inadmissible ratione temporis. Thomas Sankara's death certificate of 17 January 1988, stating that he died of natural causes - contrary to the facts, which are public knowledge and confirmed by the State party (paras. 4.2 and 4.7) - and the authorities'failure to correct the certificate during the period since that time must be considered in the light of their continuing effect on Ms Sankara and her children.” The Committee went on to find that: “6.3 ... it could not consider violations which occurred before the entry into force of the Optional Protocol for the State party unless those violations continued after the Protocol's entry into force. A continuing violation is to be interpreted as an affirmation, after the entry into force of the Optional Protocol, by act or by clear implication, of previous violations by the State party. The Committee took note of the authors'arguments concerning, first, the failure of the authorities to conduct an inquiry into the death of Thomas Sankara (which was public knowledge) and to prosecute those responsible - allegations which are not in fact challenged by the State party. These constitute violations of their rights and of the obligations of States under the Covenant. Secondly, it was clear that in order to remedy this situation, the authors initiated judicial proceedings on 29 September 1997, i.e. within the limits of the 10-year statute of limitations, and these proceedings continued after the Covenant and the Optional Protocol entered into force for Burkina Faso. Contrary to the arguments of the State party, the Committee considered that the proceedings were prolonged, not because of a procedural error on the part of the authors, but because of a conflict of competence between authorities. Consequently, insofar as, according to the information provided by the authors, the alleged violations resulting from the failure to conduct an inquiry and prosecute the guilty parties have affected them since the entry into force of the Covenant and the Optional Protocol because the proceedings have not concluded to date, the Committee considered that this part of the communication was admissible ratione temporis .” E. The Inter-American Court of Human Rights 114. The Inter-American Court of Human Rights (IACHR) has established the procedural obligations arising in respect of killings or disappearances under several provisions of the American Convention on Human Rights (“the American Convention”). In cases concerning breaches of procedural obligations, in particular where it found that the substantive aspect of the right to life had also been violated, the IACHR was ready to find a violation of Article 4 (right to life) taken together with Article 1 § 1 (obligation to respect rights) of the American Convention (see Velásquez Rodríguez v. Honduras, judgment of 29 July 1988, and Godínez Cruz Case v. Honduras, judgment of 20 January 1989). In many cases, in particular those where the substantive limb of Article 4 had not been breached, the IACHR examined such procedural complaints autonomously under Article 8, which, unlike the European Convention, guarantees the right to a fair trial for the determination of rights and obligations of any nature, and Article 25, which protects the right to judicial protection, taken together with Article 1 § 1. The IACHR followed the latter approach in cases where the killing or disappearance took place before the recognition of its jurisdiction by a respondent State. 115. In Serrano-Cruz Sisters v. El Salvador (judgment of 23 November 2004 – Preliminary Objections ), which concerned the disappearance of two girls thirteen years before El Salvador recognised the IACHR's jurisdiction, the IACHR decided that: “77. ... the facts that the Commission alleges in relation to the alleged violation of Articles 4 (Right to Life), 5 (Right to Personal Integrity) and 7 (Right to Personal Liberty) of the Convention, in relation to Article 1(1) (Obligation to Respect Rights) thereof, to the detriment of Ernestina and Erlinda Serrano Cruz, are excluded owing to the limitation to the recognition of the Court's jurisdiction established by El Salvador, because they relate to violations which commenced in June 1982, with the alleged'capture'or'taking into custody'of the girls by soldiers of the Atlacatl Battalion and their subsequent disappearance, 13 years before El Salvador recognized the contentious jurisdiction of the Inter-American Court. 78. In view of these considerations and pursuant to the provisions of Article 28 of the 1969 Vienna Convention on the Law of Treaties, the Court admits the preliminary objection ratione temporis ... ” 116. As regards alleged deficiencies in the domestic criminal investigations into the disappearances in this case, the IACHR found that the allegations concerned judicial proceedings and thus independent facts which had taken place after the recognition of the IACHR's jurisdiction. It therefore concluded that it had temporal jurisdiction to deal with these allegations as they constituted specific and autonomous violations concerning the denial of justice that had occurred after the recognition of the IACHR's jurisdiction. It noted, more specifically, that: “80. ... the Commission has submitted to the Court's consideration several facts related to an alleged violation of Articles 8 (Right to a Fair Trial) and 25 (Judicial Protection) of the Convention, in relation to Article 1(1) (Obligation to Respect Rights) thereof, which allegedly took place after recognition of the Court's jurisdiction and which occurred in the context of the domestic criminal investigations to determine what happened to Ernestina and Erlinda Serrano Cruz ... ... 84. The Court considers that all the facts that occurred following El Salvador's recognition of the Court's jurisdiction and which refer to the alleged violations of Articles 8 and 25 of the Convention, in relation to Article 1(1) thereof, are not excluded by the limitation established by the State, because they refer to judicial proceedings that constitute independent facts. They commenced after El Salvador had recognized the Court's jurisdiction and can constitute specific and autonomous violations concerning denial of justice occurring after the recognition of the Court's jurisdiction. ... 94. Therefore, the Court decides to reject the preliminary objection ratione temporis in relation to the alleged violations of Articles 8 and 25 of the Convention, in relation to Article 1(1) thereof, and to any other violation whose facts or commencement was subsequent to June 6, 1995, the date on which the State deposited with the OAS General Secretariat the instrument recognizing the Court's jurisdiction.” 117. In Moiwana Village v. Suriname (judgment of 15 June 2005) Suriname made a preliminary objection arguing that the IACHR lacked jurisdiction ratione temporis, since the acts complained of by the Commission and the victims (alleged massacre in 1986 by army forces of forty villagers and the destruction of village buildings, causing the subsequent displacement of the surviving villagers) had occurred one year prior to Suriname's becoming a State Party to the American Convention and its recognition of the IACHR's jurisdiction. The IACHR, referring to Article 28 of the Vienna Convention, noted that: “39. ... [a]ccording to this principle of non-retroactivity, in the case of a continuing or permanent violation, which begins before the acceptance of the Court's jurisdiction and persists even after that acceptance, the Tribunal is competent to examine the actions and omissions occurring subsequent to the recognition of jurisdiction, as well as their respective effects.” 118. Noting that the obligation to investigate arose from the allegations of a massacre and relying on the continuing nature of the alleged failure to investigate the past events, the IACHR found in this case the following: “43. ... [T]he Court distinguishes between alleged violations of the American Convention that are of a continuing nature, and those that occurred after November 12, 1987. With respect to the former, the Tribunal observes that the perpetration of a massacre in 1986 has been alleged; in consequence, an obligation arose for the State to investigate, prosecute and punish the responsible parties. In that regard, Suriname initiated an investigation in 1989. Yet, the State's obligation to investigate can be assessed by the Court starting from the date when Suriname recognized the Tribunal's competence. Thus, an analysis of the State's actions and omissions with respect to that investigation, in light of Articles 8, 25 and 1.1 of the Convention, falls within the jurisdiction of this Court. ... 44. Consequently, the instant preliminary objection is dismissed on the grounds set out above. ... 141. The Court has held above that it lacks jurisdiction over the events of November 29, 1986 in Moiwana Village; nevertheless, the Tribunal does have competence to examine the State's fulfilment of its obligation to investigate those occurrences ( supra paragraph 43). The following assessment will establish whether that obligation was carried out pursuant to the standards set forth in Articles 8 and 25 of the American Convention. ... 163. In consideration of the many facets analyzed above, the Court holds that Suriname's seriously deficient investigation into the 1986 attack upon Moiwana Village, its violent obstruction of justice, and the extended period of time that has transpired without the clarification of the facts and the punishment of the responsible parties have defied the standards for access to justice and due process established in the American Convention. 164. As a result, the Tribunal declares that the State violated Articles 8(1) and 25 of the American Convention, in relation to Article 1(1) of that treaty, to the detriment of the Moiwana community members.” THE LAW I. THE SCOPE OF THE CASE BEFORE THE GRAND CHAMBER 119. In its judgment of 28 June 2007, the Chamber declared admissible the complaints concerning the procedural aspect of Article 2 of the Convention, the length of the civil and criminal proceedings and the fairness of the criminal proceedings under Article 6 and the alleged lack of an effective remedy under Article 13. The complaints concerning the substantive aspect of Article 2, the fairness of the civil proceedings under Article 6, and the complaints under Articles 3 and 14 were declared inadmissible. 120. The Court reiterates that in the context of Article 43 § 3 the “case” referred to the Grand Chamber embraces all aspects of the application as it has been declared admissible by the Chamber. Yet this does not mean that the Grand Chamber may not also examine, where appropriate, issues relating to the admissibility of the application in the same manner as a Chamber, for example by virtue of Article 35 § 4 in fine of the Convention (which empowers the Court to “reject any application which it considers inadmissible ... at any stage of the proceedings”), or where such issues have been joined to the merits or are otherwise relevant at the merits stage ( K. and T. v. Finland [GC], no. 25702/94, §§ 140-41, ECHR 2001 ‑ VII). 121. In view of the foregoing and having regard to the parties'submissions before the Grand Chamber, the Court will proceed to examine the part of the application which was declared admissible by the Chamber. II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION IN ITS PROCEDURAL LIMB 122. The applicants complained that the criminal and civil proceedings they had instituted did not allow for the prompt and effective establishment of responsibility for their son's death. The relevant part of Article 2 of the Convention provides: “1. Everyone's right to life shall be protected by law. No one shall be deprived of his life...” A. The Government's preliminary objections 123. The Government raised two preliminary objections altogether. In the proceedings before the Chamber they pleaded a failure to exhaust domestic remedies. In the proceedings before the Grand Chamber they contested the Court's jurisdiction ratione temporis to deal with the applicants'complaint. 1. Jurisdiction ratione temporis (a) The Chamber judgment 124. The Chamber examined the ratione temporis issue of its own motion in its judgment of 28 June 2007. It held that it had no jurisdiction ratione temporis to deal with the applicants'complaint concerning the substantive limb of Article 2 as the applicants'son's death had clearly taken place before the date of the ratification of the Convention by Slovenia. As to the procedural aspect of Article 2, the Chamber, having regard to the previous case-law on the issue and to the principle of the time of interference established in Blečić v. Croatia ( §§ 72 and 82, cited above ), found that its competence to examine this complaint would depend on the facts of the case and the scope of the right involved. 125. In this connection, the Chamber held that the State's obligation to set up an effective judicial system for establishing the cause of and responsibility for the death of an individual in receipt of medical care had an autonomous scope. It also observed that it was not disputed in the present case that the applicants'son's condition had started significantly to deteriorate in the hospital and that his death was potentially related to the medical treatment he had received. Moreover, the Chamber was satisfied that the two sets of proceedings that had been instituted were theoretically capable of leading to the establishment of the exact circumstances which had led to the death and potential responsibility for it at all levels. 126. The Chamber went on to determine whether the facts constitutive of the alleged procedural violation of Article 2 fell within the period under the Court's temporal jurisdiction. It observed that the criminal proceedings had been successfully reopened on 4 July 1996 and that the civil proceedings were instituted in 1995. Taking into consideration that the alleged defects in the proceedings had originated at the earliest on the date the proceedings were instituted, which was after the date of the ratification, the Chamber concluded that it had temporal jurisdiction to examine the applicants'complaint concerning the procedural aspect of Article 2. Referring to Broniowski v. Poland ((dec.) [GC], no. 31443/96, § 74, ECHR 2002 ‑ X ) the Chamber also held that it could have regard to the facts prior to ratification inasmuch as they might be relevant for the understanding of facts occurring after that date. (b) Submissions of those appearing before the Court (i) The Government 127. Relying on the Court's position in Blečić v. Croatia (cited above, §§ 63-69) and on the fact that the Chamber had considered the ratione temporis issue of its own motion in its judgment of 28 June 2007, the Government raised a plea of inadmissibility on account of the Court's lack of jurisdiction ratione temporis. 128. The Government stressed before the Grand Chamber that while the criminal and civil proceedings concerning the death of the applicants'son had both started after the ratification of the Convention by Slovenia on 28 June 1994, the death had occurred before that date. 129. They argued that by declaring the complaint concerning the procedural aspect of Article 2 admissible, the Chamber had contravened the general principles of international law on the non-retroactivity of treaties, adding that this section of the Chamber's judgment was inconsistent with the Court's established case-law, in particular the decisions in Moldovan and Others and Rostaş and Others v. Romania (dec.), nos. 41138/98 and 64320/01, 13 March 2001; Voroshilov v. Russia (dec.), no. 21501/02, 8 December 2005; Stamoulakatos v. Greece (no. 1), 26 October 1993, § 33, Series A no. 271; Kadiķis v. Latvia (dec.) no. 47634/99, 29 June 2000; and Jovanović v. Croatia (dec.), no. 59109/00, ECHR 2002-III. 130. In their submission, the above case-law established that the acts or omissions by which a Convention right was allegedly infringed and the proceedings related thereto were indissociable and so could not be examined separately. On that point, the Government argued that the initial event – the applicants'son's death – was non-existent so far as the Court was concerned and the Court was therefore precluded from examining whether it gave rise to any obligation. 131. The Government further asserted that individual aspects of Article 2, such as the procedural aspect, could have no independent existence. By examining the procedural aspect of Article 2, the Chamber had not looked at the death merely as a background fact but had inevitably examined the alleged violation of the substantive limb of Article 2 of the Convention. 132. In support of that contention, the Government pointed to the difference between the cases under Article 2 and the length-of-proceedings cases under Article 6 of the Convention, which fell partly outside and partly within the Court's jurisdiction ratione temporis. In their submission, the examination of the length of proceedings did not depend on the subject-matter of the proceedings. Likewise, the length of the proceedings after ratification of the Convention was independent of the part of the proceedings conducted before that date. In contrast, in Article 2 cases, the Court did not examine the proceedings as an independent issue but as part of the investigation of a concrete event. 133. The Government further submitted that the Chamber's conclusion in respect of its ratione temporis jurisdiction disregarded the principles set out in paragraphs 68 and 77-81 of the Blečić judgment (cited above). In particular, they emphasised that the remedies should not be able to bring the interference within the Court's jurisdiction and that affording a remedy usually presupposed a finding that the interference had been unlawful under the law in force when the interference occurred. 134. Finally, the Government maintained that in cases such as the present one neither the initial event nor the subsequent proceedings could be understood as constituting a continuing violation. (ii) The applicants 135. The applicants did not dispute the Government's right to raise the preliminary objection ratione temporis before the Grand Chamber. 136. They argued that it was not possible simply to ignore the fact that during the period within the Court's temporal jurisdiction the domestic authorities had done nothing to establish the cause of their son's death. 137. In their submission, the States had a particular obligation to create an effective judicial system to establish the cause of death of an individual in receipt of medical care. This obligation was an autonomous one. 138. Referring to Yağcı and Sargın v. Turkey (judgment of 8 June 1995, Series A no. 319 ‑ A), they submitted that after ratification of the Convention the State had to comply with the Convention; subsequent events came within the Court's competence even if they were the prolongation of a pre-existing situation. Since the defects in the proceedings had occurred after Slovenia had ratified the Convention, the Court had jurisdiction ratione temporis to deal with the complaint concerning the procedural limb of Article 2 of the Convention. (c) The Grand Chamber's assessment 139. For the reasons stated in its judgment in Blečić (cited above, §§ 66-9) and noting that there is nothing that would lead it to reach a different conclusion in the present case, the Court finds that the Government are not precluded from raising the ratione temporis objection at this stage of the proceedings (see paragraphs 124, 127 and 135 above). The Court will therefore examine whether it has temporal jurisdiction to deal with the applicants'complaint concerning the procedural aspect of Article 2. (i) General principles 140. The Court reiterates that the provisions of the Convention do not bind a Contracting Party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the Convention with respect to that Party or, as the case may be, prior to the entry into force of Protocol No. 11, before the date on which the respondent Party recognized the right of individual petition, when this recognition was still optional (“the critical date”). This is an established principle in the Court's case-law (see Blečić, § 70, cited above) based on the general rule of international law embodied in Article 28 of the Vienna Convention (see paragraph 106 above). 141. The Court further notes that, in applying the principle of non-retroactivity, it has been prepared in previous cases to have some regard to facts which occurred prior to the critical date because of their causal connection with subsequent facts which form the sole basis of the complaint and of the Court's examination. 142. For example, in its consideration of cases concerning length of proceedings where the civil claim was lodged or the charge was brought before the critical date, the Court has repeatedly taken into account by way of background information facts which occurred prior to this point ( Foti and Others v. Italy, 10 December 1982, § 53, Series A no. 56; Yağcı and Sargın, cited above, § 40; and Humen v. Poland [GC], no. 26614/95, §§ 58-59, 15 October 1999 ). 143. In an Article 6 case concerning the fairness of criminal proceedings which started prior to the critical date and continued afterwards, the Court looked at the proceedings as a whole in order to assess their fairness. This resulted in it having regard to the safeguards provided at the investigation stage prior to the critical date in order to determine whether they compensated for the deficiencies at the subsequent trial stage ( Barberà, Messegué and Jabardo v. Spain, 6 December 1988, §§ 60, 61 and 84, Series A 146). 144. By way of further example, in the case of Zana v. Turkey ( [GC], 25 November 1997, §§ 41-42, Reports of Judgments and Decisions 1997 ‑ VII) the Court examined the interference with the applicant's right under Article 10 caused by his criminal conviction in the period within the Court's temporal jurisdiction even though the conviction related to statements made by the applicant before the critical date. Moreover, it found in a more recent case that it had temporal jurisdiction in respect of a complaint concerning the use of evidence obtained through ill-treatment even though the ill-treatment – but not the subsequent criminal proceedings – pre-dated the ratification of the Convention ( Haroutyounian v. Armenia, no. 36549/03, §§ 48-50, 28 June 2007). 145. In several other cases, events prior to the critical date have been taken into account, to varying degrees, as a background to the issues before the Court (see, for example, Hokkanen v. Finland, 23 September 1994, § 53, Series A no. 299 ‑ A; and Broniowski, cited above, § 74). 146. The problem of determining the limits of its jurisdiction ratione temporis in situations where the facts relied on in the application fell partly within and partly outside the relevant period has been most exhaustively addressed by the Court in the case of Blečić v. Croatia (cited above). In that case the Court confirmed that its temporal jurisdiction was to be determined in relation to the facts constitutive of the alleged interference (§ 77). In so doing, it endorsed the time of interference principle as a crucial criterion for assessing the Court's temporal jurisdiction. It found in this respect that “[i]n order to establish the Court's temporal jurisdiction it is ... essential to identify, in each specific case, the exact time of the alleged interference. In doing so the Court must take into account both the facts of which the applicant complains and the scope of the Convention right alleged to have been violated” (§ 82). The Court also indicated that if the interference fell outside the Court's jurisdiction, the subsequent failure of remedies aimed at redressing that interference could not bring it within the Court's temporal jurisdiction (§ 77). 147. The Court notes that the test and the criteria established in the Blečić case are of a general character, which requires that the special nature of certain rights, such as those laid down in Articles 2 and 3 of the Convention, be taken into consideration when applying those criteria. The Court reiterates in this connection that Article 2 together with Article 3 are amongst the most fundamental provisions in the Convention and also enshrine the basic values of the democratic societies making up the Council of Europe (see McCann and Others v. the United Kingdom, 27 September 1995, § 147, Series A no. 324). (ii) The Court's jurisdiction ratione temporis in respect of the procedural complaints under Article 2 of the Convention (α) The relevant case-law developed so far 148. The Court has dealt with a number of cases where the facts concerning the substantive aspect of Article 2 or 3 fell outside the period under the Court's competence while the facts concerning the related procedural aspect, that is the subsequent proceedings, fell at least partly within that period. 149. The Court held in Moldovan and Others and Rostaş and Others v. Romania (decision cited above) that it had no jurisdiction ratione temporis to deal with the procedural obligation under Article 2 as that obligation derived from killings which had taken place before Romania ratified the Convention. However, it took the events preceding ratification (for example, the involvement of State agents in the burning of the applicants'houses) into account when examining the case under Article 8 ( Moldovan v. Romania (no. 2), nos. 41138/98 and 64320/01, §§ 102-09, ECHR 2005 ‑ VII (extracts)). 150. In its decision in the case of Bălăşoiu v. Romania (no. 37424/97, 2 September 2003), which concerned Article 3 of the Convention, the Court came to a different conclusion. In circumstances comparable to those in the Moldovan case it decided to assume jurisdiction ratione temporis to examine the procedural limb of the complaint notwithstanding the dismissal of the substantive complaint. It based its decision on the fact that the proceedings against those responsible for the ill-treatment had continued after the critical date (see, in contrast, the decision in Voroshilov, cited in paragraph 129 above). 151. In Kholodov and Kholodova v. Russia ((dec.), no. 30651/05, 14 September 2006), the Court declined temporal jurisdiction on the grounds that it was unable to affirm that any procedural obligation existed as it had not been able to examine the substantive limb of the application. It stated: “Since the Court is prevented ratione temporis from examining the applicants'assertions relating to the events in 1994, it cannot examine whether or not these events gave rise to an obligation on the part of the Russian authorities to conduct an effective investigation in the present case (see Moldovan and Others v. Romania (dec.), no. 41138/98, 13 March 2001). Likewise, the alleged failure to ensure identification and punishment of those responsible cannot be said to have constituted a continuous situation since the Court is unable to conclude that such an obligation existed (see Voroshilov v. Russia (dec.), no. 21501/02, 8 December 2005).” 152. Having regard to the varying approaches taken by different Chambers of the Court in the above cases, the Grand Chamber must now determine whether the procedural obligations arising under Article 2 can be seen as being detachable from the substantive act and capable of coming into play in respect of deaths which occurred prior to the critical date or alternatively whether they are so inextricably linked to the substantive obligation that an issue may only arise in respect of deaths which occur after that date. (β) “Detachability” of the procedural obligations 153. The Court recalls that procedural obligations have been implied in varying contexts under the Convention (see, for example, B. v. the United Kingdom, 8 July 1987, § 63, Series A no. 121; M.C. v. Bulgaria, no. 39272/98, §§ 148-153, ECHR 2003 ‑ XII; and Cyprus v. Turkey [GC], no. 25781/94, § 147, ECHR 2001 ‑ IV) where this has been perceived as necessary to ensure that the rights guaranteed under the Convention are not theoretical or illusory, but practical and effective ( İlhan v. Turkey [GC], no. 22277/93, § 91, ECHR 2000 ‑ VII ). In particular, the Court has interpreted Articles 2 and 3 of the Convention, having regard to the fundamental character of these rights, as containing a procedural obligation to carry out an effective investigation into alleged breaches of the substantive limb of these provisions ( McCann and Others, cited above, §§ 157-64; Ergi v. Turkey, 28 July 1998, § 82, Reports 1998 ‑ IV; Mastromatteo v. Italy [GC], no. 37703/97, § 89, ECHR 2002 ‑ VIII; and Assenov and Others v. Bulgaria, 28 October 1998, §§ 101-06, Reports 1998 ‑ VIII ). 154. The Court notes the State's obligation to carry out an effective investigation or to provide for the possibility of bringing civil or criminal proceedings as may be appropriate to the case ( Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002 ‑ I ) has in the Court's case-law been considered as an obligation inherent in Article 2 which requires, inter alia, that the right to life be “protected by law”. Although the failure to comply with such an obligation may have consequences for the right protected under Article 13, the procedural obligation of Article 2 is seen as a distinct obligation (see Öneryıldız v. Turkey [GC], no. 48939/99, § 148, ECHR 2004 ‑ XII; and İlhan, cited above, §§ 91-92 ). 155. In the sphere of medical negligence, the procedural obligation under Article 2 has been interpreted by the Court as imposing an obligation on the State to set up an effective judicial system for establishing both the cause of death of an individual under the care and responsibility of health professionals and any responsibility on the part of the latter (see Calvelli and Ciglio, cited above, § 49 ). 156. The Court observes that the procedural obligation has not been considered dependent on whether the State is ultimately found to be responsible for the death. When an intentional taking of life is alleged, the mere fact that the authorities are informed that a death had taken place gives rise ipso facto to an obligation under Article 2 to carry out an effective official investigation ( Yaşa v. Turkey, 2 September 1998, § 100, Reports 1998 ‑ VI; Ergi, cited above, § 82; and Süheyla Aydın v. Turkey, no. 25660/94, § 171, 24 May 2005 ). In cases where the death was caused unintentionally and in which the procedural obligation is applicable, this obligation may come into play upon the institution of proceedings by the deceased's relatives ( Calvelli and Ciglio, cited above, § 51, and Vo v. France [GC], no. 53924/00, § 94, ECHR 2004-VIII ). 157. Moreover, while it is normally death in suspicious circumstances that triggers the procedural obligation under Article 2, this obligation binds the State throughout the period in which the authorities can reasonably be expected to take measures with an aim to elucidate the circumstances of death and establish responsibility for it (see, mutatis mutandis, Brecknell v. the United Kingdom, no. 32457/04, §§ 66-72, 27 November 2007, and Hackett v. the United Kingdom, (dec.) no. 34698/04, 10 May 2005). 158. The Court also attaches weight to the fact that it has consistently examined the question of procedural obligations under Article 2 separately from the question of compliance with the substantive obligation and, where appropriate, has found a separate violation of Article 2 on that account (for example, Kaya v. Turkey, 19 February 1998, §§ 74-78 and 86-92, Reports 1998 ‑ I; McKerr v. the United Kingdom, no. 28883/95, §§ 116-61, ECHR 2001 ‑ III; Scavuzzo-Hager and Others v. Switzerland, no. 41773/98, §§ 53-69 and 80-86, 7 February 2006; and Ramsahai and Others v. the Netherlands [GC], no. 52391/99, §§ 286-89 and 323-57 ECHR 2007- ... ). In some cases compliance with the procedural obligation under Article 2 has even been made the subject of a separate vote on admissibility (see, for example, Slimani v. France, no. 57671/00, §§ 41-43, 27 July 2004, and Kanlıbaş v Turkey, (dec.), no. 32444/96, 28 April 2005 ). What is more, on several occasions a breach of a procedural obligation under Article 2 has been alleged in the absence of any complaint as to the substantive aspect of Article 2 ( Calvelli and Ciglio, cited above, § 41-57; Byrzykowski v. Poland, no. 11562/05, §§ 86 and 94-118, 27 June 2006; and Brecknell, cited above, § 53). 159. Against this background, the Court concludes that the procedural obligation to carry out an effective investigation under Article 2 has evolved into a separate and autonomous duty. Although it is triggered by the acts concerning the substantive aspects of Article 2 it can give rise to a finding of a separate and independent “interference” within the meaning of the Blečić judgment (cited above, § 88). In this sense it can be considered to be a detachable obligation arising out of Article 2 capable of binding the State even when the death took place before the critical date. 160. This approach finds support also in the jurisprudence of the United Nations Human Rights Committee and, in particular, of the Inter-American Court of Human Rights, which, though under different provisions, accepted jurisdiction ratione temporis over the procedural complaints relating to deaths which had taken place outside their temporal jurisdiction (see paragraphs 111-18 above). 161. However, having regard to the principle of legal certainty, the Court's temporal jurisdiction as regards compliance with the procedural obligation of Article 2 in respect of deaths that occur before the critical date is not open-ended. 162. First, it is clear that, where the death occurred before the critical date, only procedural acts and/or omissions occurring after that date can fall within the Court's temporal jurisdiction. 163. Second, there must exist a genuine connection between the death and the entry into force of the Convention in respect of the respondent State for the procedural obligations imposed by Article 2 to come into effect. Thus a significant proportion of the procedural steps required by this provision – which include not only an effective investigation into the death of the person concerned but also the institution of appropriate proceedings for the purpose of determining the cause of the death and holding those responsible to account ( Vo, cited above, § 89) – will have been or ought to have been carried out after the critical date. However, the Court would not exclude that in certain circumstances the connection could also be based on the need to ensure that the guarantees and the underlying values of the Convention are protected in a real and effective manner. (iii) Application of the above principles to the present case 164. In its declaration of 28 June 1994 (see paragraph 105 above), Slovenia recognised the jurisdiction of the Convention organs to deal with individual petitions “where the facts of the alleged violation of [these] rights occur after the Convention and its Protocols have come into force in respect of the Republic of Slovenia”. While framed in positive terms, the Slovenian declaration does not introduce any further limitations on the Court's temporal jurisdiction beyond those already emerging from the general principle of non-retroactivity considered above. 165. Applying the above principles to the circumstances of the present case, the Court notes that the death of the applicants'son occurred only a little more than a year before the entry into force of the Convention in respect of Slovenia, while, with the exception of the preliminary investigation, all the criminal and civil proceedings were initiated and conducted after that date. The criminal proceedings opened effectively on 26 April 1996 (see paragraph 23 above) following the applicant's request of 30 November 1995, and the civil proceedings were instituted in 1995 (see paragraph 48 above) and are still pending. 166. The Court notes and the Government did not dispute that the applicants'procedural complaint essentially related to the aforementioned judicial proceedings which were conducted after the entry into force of the Convention precisely with a view to establishing the circumstances in which the applicants'son had died and any responsibility for it. 167. In view of the above, the Court finds that the alleged interference with Article 2 in its procedural aspect falls within the Court's temporal jurisdiction and that it is therefore competent to examine this part of the application. It will confine itself to determining whether the events that occurred after the entry into force of the Convention in respect of Slovenia disclosed a breach of that provision. 2. Exhaustion of domestic remedies 168. Before the Grand Chamber, the Government, relying on their observations from the Chamber proceedings, objected that the applicants had failed to exhaust domestic remedies. They argued, firstly, that the complaint was premature as the civil proceedings were still pending and that after the termination of the criminal and civil proceedings, the applicants would also be able to lodge a civil claim for compensation against the State on the basis of the alleged violation of their rights in the proceedings, in accordance with Article 26 of the Slovenian Constitution (see Lukenda v. Slovenia, no. 23032/02, § 9, ECHR 2005 ‑ X ). Secondly, they argued that the applicants had failed to avail themselves of the remedies available in respect of the complaints of undue delay. The applicants contested the Government's arguments. 169. In its judgment of 28 June 2007, the Chamber found that the length-of-proceedings remedies were insufficient as it was not merely the length of the proceedings which was in issue, but the question whether in the circumstances of the case seen as a whole the State could be said to have complied with its procedural requirements under Article 2 of the Convention (see Byrzykowski, cited above, § 90). As regards the first limb of the objection, the Chamber observed that the applicants had resorted to all the remedies available to them in the criminal proceedings. As to the civil proceedings, which were still ongoing, the Chamber considered that this part of the Government's objection was closely linked to the substance of the applicants'complaint under the procedural aspect of Article 2 and that its examination should therefore be joined to the merits of the case. 170. The Grand Chamber notes that the parties have not put forward any new arguments on the issue of the exhaustion of domestic remedies with regard to the Article 2 complaint in their written or oral submissions in the proceedings before it. For its part, it sees no reason to depart from the approach taken by the Chamber. B. Merits 1. The Chamber judgment 171. In its judgment of 28 June 2007, the Chamber found no indication that there had been any failure on the part of the State to provide a procedure whereby the criminal and civil responsibility of persons who might be held answerable for the applicants'son's death could be established. It went on to examine how this procedure had worked in the concrete circumstances. In that connection, it did not find it necessary to determine separately whether the criminal proceedings ending with the dismissal of the indictment by the interlocutory-proceedings panel were effective since the applicants had also instituted civil proceedings against the doctor and the hospital. The Chamber referred in this respect to the Court's judgments in Calvelli and Ciglio v. Italy and Vo v. France (cited above). The Chamber noted that the criminal proceedings were, as is usual, limited only to the determination of the charge brought against the doctor concerned and that the scope of the civil responsibility was significantly broader than criminal responsibility and did not necessarily depend on it. 172. As regards the effectiveness of the proceedings, the Chamber found that staying the civil proceedings pending the outcome of the criminal proceedings could be considered reasonable. It noted, however, that although the decision to stay the proceedings was issued in October 1997, no steps were taken in the civil proceedings for almost six years. 173. While the criminal proceedings took almost five years to be concluded with no charges being brought against the accused, it then took the civil court in the first-instance proceedings an additional five years to reach a verdict. During that time, the applicants made numerous applications of a procedural nature, such as for a change of judge and/or of venue, many of which had no prospect of improving their situation. However, even after taking into account the applicants'contribution to the length of the proceedings as a result of those applications, the Chamber considered that the way the civil proceedings had been handled (for example, the case had come before six different judges and was still pending after almost twelve years) could not be regarded as effective or, therefore, as satisfying the procedural requirements under Article 2. 2. The parties'submissions (a) The applicants 174. The applicants argued that the judicial system had failed to provide an effective and prompt examination of the cause of and responsibility for their son's death. 175. They criticised the way the civil proceedings had been conducted, arguing that the authorities had been reluctant to investigate their case and had treated them in a discriminatory fashion. They also disagreed with the Government about the need to stay the civil proceedings. In their submission, the establishment of criminal liability did not constitute a preliminary question for the purposes of the Civil Procedure Act as civil liability could be established even if no criminal offence had been committed. It could also be apportioned between various parties and relate to different heads of damage. 176. The applicants further criticised the way the courts had dealt with their requests for certain judges to stand down and the attitude displayed by some of the judges in their conduct and correspondence with the applicants and the authorities. 177. In their observations before the Grand Chamber, the applicants criticised the public prosecutor's persistent refusal to pursue the prosecution of Doctor M.E. In this respect, they emphasised that the Maribor District Court's decision of 12 January 1999 showed that there was reasonable suspicion that a criminal offence had been committed. As a result of the public prosecutor's reluctance to proceed with the investigation, the applicants had been left with no option but to take over the conduct of the prosecution themselves and this had placed them at a disadvantage. Moreover, it had taken the authorities more than seven years to investigate the case and rule on the indictment and the criminal proceedings had failed to produce any significant result. 178. In their oral submissions in the proceedings before the Grand Chamber, the applicants concentrated also on the issue of the impartiality of forensic experts involved in medical negligence cases in Slovenia, arguing that the limited number of doctors in Slovenia and the fact that Slovenian doctors, including forensic experts, were in the same trade union (FIDES), made it difficult to ensure strict impartiality. In the applicants'case, it was that trade union which had requested the applicants to reimburse the expenses for the legal representation provided to Doctor M.E. in the proceedings before the Maribor District Court and the Maribor Higher Court. The applicants also argued that the impartiality of the proceedings before the Medical Tribunal, to which only the accused doctor and the Medical Association's Commissioner were parties, should be called into question. 179. The applicants alleged, in general, that there was a tendency on the part of the civil and criminal courts in Slovenia not to find against doctors accused of causing death by negligence. (b) The Government 180. In the Government's submission, the Chamber had found a violation of Article 2 on the grounds that both the criminal and civil proceedings were ineffective. The preliminary investigation into the applicants'son's death and, in particular, the subsequent criminal proceedings had entirely satisfied the procedural obligation imposed by Article 2. While the criminal proceedings were guided by the principles of substantive truth and officiality, that was not the position with civil proceedings. For that reason, as a matter of principle, the civil proceedings were not capable of satisfying the procedural requirements imposed by Article 2 of the Convention. 181. The Government noted that the initial measures following the applicants'son's death took place before the Convention entered into force. They submitted that, when examining the procedural aspect of Article 2, the Court was therefore required to take into account the status of the investigation and its findings as at that date. Moreover, the criminal proceedings instituted by the applicants had not led to any different conclusion than that reached in the initial investigations. In their oral submissions before the Grand Chamber, the Government also argued that the public prosecutor had conducted a thorough review of the decision not to assume the conduct of the prosecution in 1997 and 1999, adding that the fact that, ultimately, the court in the criminal proceedings had struck down the indictment proved the correctness of the public prosecutor's decision. 182. The Government criticised the lack of clarity in the Chamber's judgment as regards the alleged deficiencies in the criminal proceedings. They argued that the main set of criminal proceedings ending with the decision of 20 December 2000 had been conducted as quickly as possible given the complexity of the case, which had required an extensive investigation, including the appointment of various experts from Slovenia and abroad, and a chronological reconstruction of the events. There had been no significant defects or delays in the criminal proceedings. The domestic courts had sought carefully to establish the circumstances of the applicants'son's death and any criminal liability on the part of the doctor concerned. 183. The Government commented on the burden of proof borne by the applicants in the criminal proceedings. They maintained that, as “subsidiary” prosecutors, the applicants were required to abide by the fundamental objective of criminal proceedings and the rules applied therein and, in particular, the safeguards aimed at ensuring respect of the rights of the accused. 184. The Government's observations further concentrated on the applicants'inability to lodge a constitutional appeal in the criminal proceedings. They submitted that this remedy was not open to an aggrieved party in the criminal proceedings for many legitimate reasons, including the non bis in idem principle. 185. As regards the general effectiveness of the criminal proceedings in practice, the Government referred to data from the Slovenian courts which showed that “subsidiary” prosecution in cases of death resulting from alleged medical negligence was rare. Such cases were normally dealt with by the public prosecutor. In support of that contention, the Government submitted figures showing that in twelve recent medical malpractice cases criminal proceedings for the offence of causing death by negligence had been instituted by the public prosecutor. In just two of the cases the aggrieved party had later taken over the conduct of the prosecution. 186. With regard to civil liability, the Government averred that the Obligations Act and the Code of Obligations afforded effective protection of the right to life. In support of that contention, they produced copies of judgments that had been delivered between 1998 and 2003 in five cases of alleged medical error. In four of these cases the health-care institutions had been ordered to pay damages to the plaintiffs. They also provided a list of 124 claims against health-care institutions that had been lodged with the Ljubljana and Maribor District Courts between 1995 and 2004, at least 57 of which had been finally resolved ( pravnomočno končanih ). The remainder, including 6 from 1995, appeared to be still pending before courts of first or second instance. 187. As regards the present case, the Government argued that the issues dealt with by the courts were very complex. In addition, the applicants'conduct, in particular their repeated challenges of the judges and motions for a change of venue, had obstructed the proper conduct of the proceedings. The Government considered that the objective circumstances in the case had not warranted such a large number of requests and motions. The applicants bore sole responsibility for the delays in the proceedings after they had been resumed. 188. Civil liability did not depend on the establishment of criminal responsibility and, in particular, the civil courts were not bound by the defendant's acquittal. As regards the staying of the civil proceedings, while the civil courts were not obliged to wait until the criminal proceedings had been concluded they had power to do so in appropriate cases. In the instant case, the decision to stay the civil proceedings was reasonable in view of the extensive process of evidence gathering that was concurrently taking place in the criminal court. Moreover, the applicants had not appealed against that decision. 189. The Government further argued that the Chamber had erred in stating that “the court [had done] nothing for almost six years” as only three years and seven months had passed between the stay of the proceedings and their resumption. Furthermore, the Government considered it unjustified for the Chamber to have emphasised that as many as six judges had examined the case and to have held the State responsible for that. The national courts had acted solely in accordance with domestic law and decided the applicants'requests and motions as quickly as possible. As regards the two judges that had stood down, the circumstances that had led to their withdrawal were linked entirely to the applicants. 190. It would further appear from the Government's observations before the Grand Chamber that they disputed the Ombudsman's findings in the case, in particular those concerning the staying of the proceedings and the conduct of the hearing of 28 October 2003. They argued that under domestic law the Ombudsman did not have power to interfere in proceedings pending before the domestic courts except in the case of undue delay or manifest abuse of authority. Nor was it the European Court's role to examine whether the manner in which the domestic authorities had taken the evidence was appropriate. 191. In their observations before the Chamber, the Government also referred to the proceedings before the Medical Tribunal in order to demonstrate the effectiveness of the system of protection of the right to life. They explained that the tribunal had jurisdiction to establish possible misconduct by a doctor. As a result, disciplinary measures, including the suspension or revocation of a licence, could be imposed. They added that the applicants had not availed themselves of that remedy. 3. The Grand Chamber's assessment (a) Relevant principles 192. As the Court has held on several occasions, the procedural obligation of Article 2 requires the States to set up an effective independent judicial system so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable (see, among other authorities, Calvelli and Ciglio, cited above, § 49, and Powell v. the United Kingdom, (dec.), no. 45305/99, ECHR 2000-V). 193. The Court reiterates that this procedural obligation is not an obligation of result but of means only ( Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002 ‑ II ). 194. Even if the Convention does not as such guarantee a right to have criminal proceedings instituted against third parties, the Court has said many times that the effective judicial system required by Article 2 may, and under certain circumstances must, include recourse to the criminal law. However, if the infringement of the right to life or to personal integrity is not caused intentionally, the procedural obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case ( Mastromatteo, cited above, § 90). In the specific sphere of medical negligence the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any responsibility of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and/or for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged ( Calvelli and Ciglio, cited above, § 51, and Vo, cited above, § 90). 195. A requirement of promptness and reasonable expedition is implicit in this context. Even where there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities is vital in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see Paul and Audrey Edwards, cited above, § 72 ). The same applies to Article 2 cases concerning medical negligence. The State's obligation under Article 2 of the Convention will not be satisfied if the protection afforded by domestic law exists only in theory: above all, it must also operate effectively in practice and that requires a prompt examination of the case without unnecessary delays (see Calvelli and Ciglio, cited above, § 53; Lazzarini and Ghiacci v. Italy (dec.), no. 53749/00, 7 November 2002; and Byrzykowski, cited above, § 117). 196. Lastly, apart from the concern for the respect of the rights inherent in Article 2 of the Convention in each individual case, more general considerations also call for a prompt examination of cases concerning death in a hospital setting. Knowledge of the facts and of possible errors committed in the course of medical care are essential to enable the institutions concerned and medical staff to remedy the potential deficiencies and prevent similar errors. The prompt examination of such cases is therefore important for the safety of users of all health services (see Byrzykowski, cited above, § 117). (b) Application of the above principles in the instant case 197. The Court notes that the fact that the applicants'son's condition started significantly to deteriorate in the hospital and that his death was possibly related to the medical treatment he received has not been disputed either before the Court or in the domestic proceedings. It further observes that the applicants alleged that their son's death was a result of negligence on the part of the doctor. It follows that the State was under a duty to ensure that the proceedings instituted with regard to the death complied with the standards imposed by the procedural obligation of Article 2 of the Convention. 198. In this connection, the Court notes that the applicants used two legal remedies with the aim of establishing the circumstances of their son's death and responsibility for it. Following the preliminary investigation, they instituted criminal proceedings against Doctor M.E. and civil proceedings for compensation against both the hospital and the doctor. 199. Although no disciplinary proceedings were instituted as a result of the death, the Government have not shown that such proceedings before the Medical Tribunal – to which they referred in the Chamber proceedings (see paragraph 191 above) – would have afforded an effective remedy at the material time. 200. As regards the criminal proceedings, the Court observes that the forensic report by the Ljubljana Institute of Forensic Medicine was drafted soon after the death. Subsequently, the public prosecutor refused to initiate criminal proceedings against the doctor. Criminal proceedings were then instituted at the applicants'request and were conducted by the applicants in their capacity as “subsidiary” prosecutors. In this respect, it is to be noted that the applicants first requested the opening of a criminal investigation into Doctor M.E.'s conduct on 1 August 1994. An initial decision to open the investigation was overturned in December 1994. A further request lodged by the applicants on 30 November 1995, after they had obtained a new medical opinion, was upheld and the investigation was reopened on 26 April 1996 – almost three years after the applicants'son's death and almost two years after the applicants'initial request. After commencing in 1996, those proceedings continued for more than four years, during which period the case was twice remitted for further investigation after the indictment was lodged on 28 February 1997. They were finally discontinued by the interlocutory-proceedings panel's decision of 18 October 2000. 201. Furthermore, despite the public prosecutor's continuing refusal to institute criminal proceedings (see paragraphs 18, 26 and 39 above), the domestic courts found that sufficient grounds existed to open the investigation (see paragraph 23 above) and a significant volume of evidence, including new forensic reports, was gathered. It was the applicants who pursued the criminal proceedings and bore the burden of the investigation, which continued for a considerable period. 202. The Court is not called upon to determine whether in the present case the criminal proceedings should have been conducted ex-officio or to identify what sort of steps the public prosecutor should have taken as the procedural obligation under Article 2 does not necessarily require the State to provide criminal proceedings in such cases (see paragraph 194 above), even if it is clear that such proceedings could by themselves have fulfilled the requirements of Article 2. The Court therefore confines itself to noting that the criminal proceedings, in particular the investigation, were excessively long and that neither the conduct of the applicants nor the complexity of the case can suffice to explain such length. 203. Unlike the Government, the Court finds it significant that the applicants had recourse to civil proceedings in which they were entitled to an adversarial trial enabling any responsibility of the doctors or hospital concerned to be established and any appropriate civil redress to be obtained (see, mutatis mutandis, Powell, cited above, and Vo, cited above, § 94). It is common ground that the scope of any civil liability was significantly broader than the scope of any criminal liability and not necessarily dependent on it. The civil proceedings were instituted on 6 July 1995 and, after more than thirteen years, are still pending before the Constitutional Court (see paragraph 78 above). 204. As the Government rightly pointed out, the civil proceedings were stayed for three years and seven months pending the outcome of the criminal proceedings which the applicants were pursuing concurrently (see paragraphs 52-58 above). However, for the two years before they were officially stayed, the civil proceedings were in fact already at a standstill (see paragraphs 49-52 above). 205. The Court appreciates that evidence adduced in criminal proceedings may be of relevance to decisions in civil proceedings arising out of the same incident. Accordingly, it does not find that the stay of the civil proceedings was in itself unreasonable in the present case. Having said that, it stresses that the stay did not release the domestic authorities from their obligation to examine the case promptly. In this respect, the Court would recall its above findings concerning the processing of the case in the criminal proceedings. In addition, it would also note that the civil court before which the applicants'case was pending remained responsible for the conduct of the civil proceedings and ought therefore to have weighed the advantages of a continued stay against the requirement of promptness when deciding whether or not to resume the proceedings. 206. The Court further notes that during the stay of the civil proceedings, expert evidence was being gathered in the criminal proceedings. This evidence was available to the civil court when the civil proceedings resumed. Therefore, and in the light of the steps subsequently taken in the civil proceedings, the Court considers that from that point onward the time taken to bring the civil proceedings to an end could no longer be explained by reference to the particular complexity of the case. It observes, however, that after the criminal proceedings were discontinued it took the domestic courts a further five years and eight months to rule on the applicants'civil claim. 207. In this connection, the Court notes that during that period the applicants repeatedly challenged the judges sitting in their case and lodged several motions for a change of venue. Many of these steps caused unnecessary delays and had no prospect of improving their situation. However, some of the applicants'requests turned out to be well-founded. For instance, the second motion for a change of venue was upheld and the proceedings were, as a result, moved to the Maribor District Court. The applicants were also successful on two occasions with their call for individual judges to stand down, although it would appear that the judges concerned ultimately withdrew on their own initiative. 208. The Court would accept that the requests for a change of venue and for certain judges to stand down delayed the proceedings to a degree. In the present case, however, it considers that the delays that occurred after the stay was lifted were in many instances not reasonable in the circumstances. For example, as a result of the change of venue following the applicants'request of 11 June 2001, no hearing was held for a further nine months (paragraphs 59-60 above). After the hearing of 3 April 2002, the proceedings were dormant for four months, as the courts were apparently dealing with the applicants'motions for the judges to stand down. Subsequently Judge M.T.Z. withdrew from the proceedings. During the following ten months, the only action taken by the courts was to reject two motions for a change of venue; no other steps were taken (see paragraphs 61-63 above). In addition, after the adjournment of a hearing scheduled for 23 and 24 March 2005, and despite the applicants'letter of 4 May 2005 requesting that the proceedings be expedited, it took the court ten months to schedule the next hearing, possibly because the conduct of the case had been taken over by yet another judge (see paragraphs 67-70 above). After the withdrawal of Judge D.M. on 31 January 2006, four and a half months elapsed before the next hearing was held by a new judge on 16 June 2006 (see paragraphs 70-72 above). It is worth noting that, subsequent to that hearing, the new judge concluded the first-instance proceedings in less than three months (see paragraph 73 above). 209. When considering the present case, the Court cannot fail to note the Ombudsman's public reports and interventions concerning the conduct of the proceedings (see paragraphs 81-85 above). The situation reflected therein could arguably have contributed to the applicants'mistrust of the manner in which the proceedings were being conducted and triggered some of their repeated challenges to the judges and the court. As regards the Government's argument that the Ombudsman lacked authority to interfere in the impugned domestic proceedings (see paragraph 190 above), the Court is of the opinion that it is not within its competence to decide on the Ombudsman's powers under the domestic law, an issue which, moreover, bears no relevance to the applicants'complaints. 210. Lastly, the Court considers it unsatisfactory for the applicants'case to have been dealt with by at least six different judges in a single set of first-instance proceedings. While it accepts that the domestic courts are better placed to assess whether an individual judge is able to sit in a particular case, it nevertheless notes that a frequent change of the sitting judge will undoubtedly impede the effective processing of the case. It observes in this connection that it is for the State to organise its judicial system in such a way as to enable its courts to comply with the requirements of the Convention, including those enshrined in the procedural obligation of Article 2 (see, mutatis mutandis, R.M.D. v. Switzerland, 26 September 1997, § 54, Reports 1997-VI). 211. Having regard to the above background, the Court considers that the domestic authorities failed to deal with the applicants'claim arising out of their son's death with the level of diligence required by Article 2 of the Convention. Consequently, there has been a violation of Article 2 in its procedural aspect and the Government's preliminary objection concerning the exhaustion of civil domestic remedies in respect of the procedural limb of this provision is dismissed. III. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION 212. The applicants complained under Article 6 § 1 of the Convention of the unfairness of the criminal proceedings and the length of both sets of proceedings. The relevant part of Article 6 reads as follows: “In the determination of his civil rights and obligations or of any criminal charge against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” 213. The applicants also complained that the Constitutional Court and other competent authorities had failed to respond to their complaints concerning the conduct of the proceedings relating to their son's death. They relied on Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 214. As regards Article 6 of the Convention, the Government, referring to the judgment in Perez v. France ([GC], no. 47287/99, § 70, ECHR 2004 ‑ I), argued before the Grand Chamber that the complaints concerning the criminal proceedings were incompatible ratione materiae. In addition, they argued that the part of the application that related to the criminal proceedings that had ended with the Maribor Higher Court's decision of 5 October 1995 should be declared inadmissible in accordance with Article 35 § 1 of the Convention. With regard to the civil proceedings, they argued, referring, inter alia, to the judgment in Grzinčič v. Slovenia (no. 26867/02, ECHR 2007 ‑ ... (extracts)), that the applicants should have used the remedies available since 1 January 2007 under the 2006 Act (see paragraphs 102-04 above) and that the related complaint was therefore inadmissible for non-exhaustion of domestic remedies. They further maintained that the impugned proceedings had been conducted properly and as promptly as possible. 215. The applicants submitted that on the date the 2006 Act became operational, their application was already pending before the Court and the impugned civil proceedings had already been pending for almost twelve years before the domestic courts. On 25 August 2006 the first-instance court had delivered its judgment. The use of the remedies under the 2006 Act would therefore have been totally ineffective in their case. 216. Having regard to the particular circumstances of the present case and to the reasoning which led it to find a violation of Article 2 in its procedural limb, the Court considers that it is not necessary also to examine the case under Article 6 § 1 and Article 13 of the Convention (see, mutatis mutandis, Öneryıldız, cited above, § 160 ). IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 217. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 218. Before the Chamber, the applicants claimed SIT 1,300,000 (approximately EUR 5,440) in respect of pecuniary damage allegedly resulting from the expenses they had incurred as a result of the inactivity of the courts in the domestic proceedings and the Public Prosecutor's refusal to institute criminal proceedings. They further claimed SIT 1,800,000 (approximately EUR 7,540) in respect of non-pecuniary damage. 219. The Chamber's conclusion as regards the applicants'claim for damage was as follows: “150. The Court finds that the applicants have failed to submit documentary evidence of the expenses they allegedly incurred as a result of the inactivity of the courts in the domestic proceedings. As regards the remainder of the claim for pecuniary damage, the Court does not discern any causal link between the violation found and the pecuniary damage alleged ... It therefore rejects this claim. 151. As to non-pecuniary damage, the Court, deciding on an equitable basis and having regard to the sums awarded in similar cases and the violation which it has found in the present case, awards the applicants the full sum claimed, namely EUR 7,540.” 220. In the proceedings before the Grand Chamber, the applicants invited the Court to uphold the Chamber's conclusion. 221. The Government disputed the applicants'claim. 222. The Grand Chamber sees no reason to depart from the Chamber's finding. It accepts that the violation of the applicants'right under the procedural limb of Article 2 of the Convention caused the applicants non-pecuniary damage such as distress and frustration. Making its assessment on an equitable basis, it awards the applicants the full sum claimed under this head, namely EUR 7,540. B. Costs and expenses 223. The Chamber's conclusion as regards the applicants'claim for the reimbursement of their costs and expenses was as follows: “154. Under the Court's case-law, an applicant is entitled to the reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, having regard to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 2,000 for the proceedings before the Court.” 224. The applicants claimed EUR 5,000 in respect of the proceedings before the Grand Chamber. However, their itemised claims amounted to EUR 2,864 only, broken down as follows. Relying on the domestic scale of lawyer's fees, the applicants claimed EUR 1,184 in respect of legal fees for the work done by their representative in the written and oral proceedings before the Grand Chamber. In addition they claimed EUR 855 in respect of travel and subsistence related to his attendance at the hearing and a further EUR 825 in respect of their own travel and subsistence expenses. 225. The Government submitted that for the purposes of calculating legal fees incurred in the proceedings before the Grand Chamber, the amount set out in lawyer's scale rates for representation before the Constitutional Court should be used. Accordingly, the overall costs and expenses in respect of legal representation came to a total of EUR 1,635. The Government disputed the applicants'entitlement to the reimbursement of their travel and subsistence expenses on the grounds that their attendance at the hearing had not been necessary, since they had been represented by counsel. 226. The Court has consistently held that costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred, and were reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see, for example, Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002, and Sahin v. Germany [GC], no. 30943/96, § 105, ECHR 2003 ‑ VIII). 227. The Grand Chamber sees no reason to depart from the Chamber's finding regarding the amount awarded in respect of the costs and expenses incurred in the proceedings before the Chamber. As regards the proceedings before the Grand Chamber, the Court considers that the costs and expenses claimed in respect of the applicants'representative's work and attendance at the hearing, namely EUR 2,039, were actually and necessarily incurred and were reasonable as to quantum. Having regard to the fact that the applicants were represented by their counsel at the hearing and in view of the nature of the case, the Court considers that the expenses incurred as a result of their attendance were not necessary and therefore rejects this part of the claim. 228. Consequently, the Court awards the applicants a total sum of EUR 4,039 in respect of costs and expenses. C. Default interest 229. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 2 (right to life) of the Convention on account of the inefficiency of the Slovenian judicial system in establishing the cause of and liability for the death of the applicant’s son. It observed in particular that the criminal proceedings, and notably the investigation, had lasted too long, that six judges had been changed in a single set of first-instance civil court proceedings, which were still pending 13 years after they had been started. |
225 | (Suspected) terrorists | II. RELEVANT DOMESTIC LAW A. Belgian legislation on extradition 69. Under Belgian law, extradition proceedings are governed by the Extradition Act of 15 March 1874, the provisions of which, as far as they apply to the present case, may be summarised as follows. 70. Under section 1, extradition is only possible between Belgium and foreign States under a treaty concluded on a mutual basis. 71. The Belgian Act makes extradition subject to several conditions regarding the offence for which extradition is being requested: Section 2 “... where the crime or offence giving rise to the application for extradition has been committed outside the territory of the requesting party, the Government may only hand over the prosecuted or convicted foreigner, on a reciprocal basis, if Belgian legislation authorises the prosecution of the same offences committed outside the Belgian Kingdom.” Section 2bis “Extradition may not be granted if there are serious reasons to believe that the application was submitted for the purpose of persecuting or punishing a person on considerations of race, religion, nationality or political opinions, or if the situation of such person is liable to be worsened for any one of those reasons. Nor can extradition be granted if there are serious risks that if the person were extradited he would be subjected to a flagrant denial of justice, acts of torture or inhuman and/or degrading treatment in the requesting State. Where the offence for which extradition has been requested is punishable by the death penalty in the requesting State, the Government shall allow extradition only if the requesting State provides formal guarantees that the death penalty will not be enforced.” 72. In accordance with section 3(2), the application must be accompanied, in cases such as the present one, by an arrest warrant or any other equivalent document issued by the competent foreign authority, provided that these documents include a precise indication of the offence for which they have been issued and that they have been declared enforceable by the chambre du conseil of the regional court of the foreigner’s place of residence in Belgium or of the place where he is to be found. Investigatory proceedings before the chambre du conseil are not open to the public. 73. The decision is open to appeal before the Indictments Division of the Court of Appeal, where the investigatory proceedings are also not open to the public. Subsequently, an appeal on points of law lies against the judgment of the Indictments Division. 74. Pursuant to section 3(4), once the foreigner has been detained under the arrest warrant as declared enforceable, the Government take cognisance of the opinion of the Indictments Division of the competent court of appeal. The latter must verify that all the statutory and Treaty conditions for extradition are fulfilled. The hearing is, in principle, open to the public. The public prosecutor and the foreigner are heard, the latter having been duly summoned to appear and provided with the case file ten days before the hearing. The opinion of the Indictments Division is not made public, and at this stage neither the foreigner nor his lawyer has access to it. 75. The opinion is then transmitted to the Minister for Justice. Since the opinion is not a judgment it is not open to an appeal on points of law before the Court of Cassation. Nor is it liable to an application for judicial review before the Conseil d’Etat. 76. The Minister for Justice decides whether or not to hand over the foreigner to the requesting State. A non-suspensive application for judicial review of the ministerial decision lies to the Conseil d’Etat. B. The extradition agreement between Belgium and the United States 77. A treaty on extradition between Belgium and the United States was signed in Brussels on 27 April 1987. This bilateral agreement was amended and updated, pursuant to the 25 June 2003 agreement between the European Union and the United States of America on extradition, under a bilateral “instrument” of 16 December 2004. 78. The relevant provisions of the 27 April 1987 agreement as amended are as follows: Article 2 - Extraditable Offenses “1. An offense shall be an extraditable offense if it is punishable under the laws in both Contracting States by deprivation of liberty for a maximum period of more than one year or by a more severe penalty. 2. If extradition is requested for the execution of a sentence, the sentence originally imposed must have been deprivation of liberty for a period of at least one year or a more severe penalty. 3. The following shall also be an extraditable offense: (a) an attempt to commit one of the offenses described in paragraph 1 or the participation as co-author or accomplice of a person who commits or attempts to commit such an offense; or (b) an association formed to commit any of the offenses described in paragraph 1 under the laws of Belgium, or a conspiracy to commit any such offenses as provided by the laws in the United States. 4. In determining whether an offense is an extraditable offense, the Contracting States: (a) shall consider only the essential elements of the offense punishable under the laws of both states; and (b) shall not consider as an essential element of an offense punishable in the United States an element such as interstate transportation or use of the mails or of other facilities affecting interstate or foreign commerce, since such an element is for the purpose of establishing jurisdiction in a United States federal court; (c) shall disregard that the respective laws do not place the offense within the same category of offenses or describe the offense by the same terminology. 5. If extradition has been granted for an extraditable offense or for the execution of a sentence, it shall also be granted for: (a) any other offense specified in the request even if the latter offense is punishable by less than one year’s deprivation of liberty, and (b) the execution of any other penalty, including a fine, specified in the request for extradition even if the severity of the penalty does not fulfill the requirement of the minimum punishment imposed by paragraph 2, provided that all other requirements for extradition are met. 6. Extradition shall not be granted if prosecution of the offense or execution of the penalty has been barred by lapse of time under the laws of the Requested State. However, acts constituting an interruption or a suspension of the time-bar in the Requesting State shall be taken into consideration insofar as possible.” Article 5 – Prior Prosecution “1. Extradition shall not be granted when the person sought has been found guilty, convicted or acquitted in the Requested State for the offense for which extradition is requested. 2. Extradition shall not be precluded by the fact that the authorities in the Requested State have decided not to prosecute the person sought for the acts for which extradition is requested, or to discontinue any criminal proceedings which have been instituted against the person sought for those acts.” Article 6 – Humanitarian Considerations “1. If an offense for which extradition is requested is punishable by death in the Requesting State, and if in respect of such offense the death penalty is not provided for by the Requested State or is not normally carried out by it, extradition may be refused, unless the Requesting State gives such assurances as the Requested State considers sufficient that the death penalty will not be carried out. 2. Notwithstanding the provisions of the present Treaty, the executive authority of the Requested State may refuse extradition for humanitarian reasons pursuant to its domestic law.” C. Possibilities of reducing life sentences under US law 79. The possibilities of sentence reduction mentioned in the diplomatic note sent by the US authorities to their Belgian counterparts on 10 August 2010 (see paragraph 27 above) are set out in the following provisions: Federal Rules of Criminal Procedure Rule 35. Correcting or Reducing a Sentence “... (b) Reducing a Sentence for Substantial Assistance. (1) In General. Upon the government’s motion made within one year of sentencing, the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person. (2) Later Motion. Upon the government’s motion made more than one year after sentencing, the court may reduce a sentence if the defendant’s substantial assistance involved: (A) information not known to the defendant until one year or more after sentencing; (B) information provided by the defendant to the government within one year of sentencing, but which did not become useful to the government until more than one year after sentencing; or (C) information the usefulness of which could not reasonably have been anticipated by the defendant until more than one year after sentencing and which was promptly provided to the government after its usefulness was reasonably apparent to the defendant. (3) Evaluating Substantial Assistance. In evaluating whether the defendant has provided substantial assistance, the court may consider the defendant’s pre-sentence assistance. (4) Below Statutory Minimum. When acting under Rule 35(b), the court may reduce the sentence to a level below the minimum sentence established by statute. (c) ‘Sentencing’ Defined. As used in this rule, “sentencing” means the oral announcement of the sentence.” United States Code, Title 18 - Crimes and Criminal Procedure § 3582. Imposition of a sentence of imprisonment “... (c) MODIFICATION OF AN IMPOSED TERM OF IMPRISONMENT The court may not modify a term of imprisonment once it has been imposed except that (1) in any case (A) the court, upon motion of the Director of the Bureau of Prisons, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that (i) extraordinary and compelling reasons warrant such a reduction; or (ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g); and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission; and (B) the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure; ...” 80. The aforementioned Article 3582 (c)(1)(A) is relied upon by the Federal Bureau of Prisons in cases of particularly exceptional or pressing circumstances which could not reasonably have been foreseen by the court at the time of determination of sentence. It is primarily a case of sentence reduction on humanitarian grounds. 81. Furthermore, Article 2 (II) of the US Constitution empowers the President to commute or reduce a sentence or grant a pardon in cases of conviction for a Federal offence. 82. The Constitution does not restrict the President’s power to grant or refuse executive clemency, but the Pardon Attorney operating with the Department of Justice prepares a recommendation to the President for every application for a pardon, and is required to consider the applications in accordance with the guidelines set out in Title 28 of the Code of Federal Regulations. This Code states that persons requesting a pardon or sentence commutation must wait five years after their conviction to be eligible for a pardon. They must fill out and sign an application form, which must be addressed to the President and submitted to the Pardon Attorney. Applicants must state their reasons for requesting a pardon and provide detailed information, and also references. On receipt of the application the Pardon Attorney must carry out an investigation and decide whether the application for a pardon should be accepted by the President. 83. The President’s decision is final and not open to appeal. The prisoner must wait a minimum of two years from the date of the refusal before submitting a fresh application. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RELATION TO THE APPLICANT’S EXTRADITION 844. According to the applicant, the Belgian authorities’ decision to hand him over to the United States was in breach of Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 85. In their additional observations on Article 34 of the Convention as submitted to the Court on 8 November 2013, the Government raised an objection as to inadmissibility based on non-exhaustion of domestic remedies. They contended that the application had been manifestly premature because it had been lodged on 23 December 2009, before completion of the administrative phase of the response to the request for extradition. According to the Government, the applicant should have lodged his application on completion of this phase, that is to say after the dismissal of his application to the Conseil d’Etat for judicial review of the ministerial decree on his extradition. 86. The applicant submitted that the application had been lodged within six months of the 24 June 2009 judgment of the Court of Cassation, which had closed the judicial phase of enforcement of the US arrest warrant. At that stage in the extradition procedure the decision was a final one from which no appeal lay. The phase referred to by the Government was separate from the judicial enforcement proceedings, being an administrative phase which was open to appeal before the Conseil d’Etat and which, in the present case, ended with the Conseil d’Etat judgment of 23 September 2013. 87. The Court reiterates that it is a fundamental feature of the machinery of protection established by the Convention that it is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It should not take on the role of Contracting States, whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is based on the assumption – reflected in Article 13 of the Convention, with which it has close affinity – that there is an effective remedy available in respect of the alleged violation. The rule is therefore an indispensable part of the functioning of this system of protection (see Vučković and Others v. Serbia [GC], no. 17153/11, § 69, 25 March 2014). 88. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as regards complaints against a State are thus obliged to use first the remedies provided by the national legal system. It should be emphasised that the Court is not a court of first instance; it does not have the capacity, nor is it appropriate to its function as an international court, to adjudicate on large numbers of cases which require the finding of basic facts or the calculation of monetary compensation – both of which should, as a matter of principle and effective practice, be the domain of domestic jurisdictions (see Vučković and Others, cited above, § 70, and the references cited therein). 89. The Court also reiterates that the assessment of an applicant’s obligation to exhaust domestic remedies is normally carried out with reference to the date on which the application was lodged with it (see Baumann v. France, no. 33592/96, § 47, ECHR 2001 ‑ V (extracts)). 90. In the instant case the Court notes that in his application bringing the case before the Court, the applicant complained of the judgment delivered on 24 June 2009 by the Court of Cassation dismissing his appeal against the judgment of the Court of Appeal allowing judicial enforcement of the arrest warrant issued against him by the US courts. This was a final decision in that it was not open to appeal. 91. The Court agrees that the situation is peculiar in that, during the judicial enforcement phase, the judicial courts do not decide on the extradition itself, which is a matter for the executive under the supervision of the Conseil d’Etat. This does not, however, mean that the decisions taken during the judicial enforcement phase cannot give rise to complaints under the Convention. Thus the applicant argued before the Court of Cassation that the enforcement of the arrest warrant which the USA had issued against him was problematical from the angle of Article 3 of the Convention (see paragraph 20 above). The applicant subsequently presented the same arguments to the Court. 92. The Court considers these factors sufficient to conclude that the application was not premature and that the objection as to non-exhaustion of the domestic remedies should be rejected. As a subsidiary consideration, it notes that in any case the final stages of the two phases of the extradition proceedings have meanwhile been completed before the Court decision on the admissibility of the application. 93. Moreover, the Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 a) of the Convention and is not inadmissible on any other grounds. It should therefore be declared admissible. B. Merits 1. The parties’ submissions a) The applicant 94. The applicant complained that his extradition to the United States of America exposed him to treatment incompatible with Article 3 of the Convention. He contended that offences A and B, on the basis of which his extradition had been granted, carried a maximum life prison sentence which was irreducible de facto, and that if he were convicted he would have no prospect of ever being released. 95. The applicant deduced the de facto irreducibility of the life sentence from the factual data set out in the diplomatic notes of 11 November 2009 and 10 August 2010. He pointed out that the US authorities had referred to only one instance of sentence commutation in connection with serious offences relating to national security, and stated that they had no knowledge of any Presidential pardon or sentence commutation in cases of conviction for a terrorist offence such as those of which the applicant was accused. In this connection, the example of President Clinton’s executive clemency in 1999 was not relevant. This example should be seen in its context, which had nothing in common with the situation since the launch, after 11 September 2001, of a veritable war on so-called “Islam-inspired” terrorism; this was the context in which the applicant was being prosecuted. 96. The applicant also considered that the sources used by the Government to demonstrate the contrary should be treated with caution. The Government had failed to point out that at the time of publication of the studies cited, the Human Rights First NGO had been headed by an individual who had since taken up office in the US executive. The applicant also questioned the quality of the information supplied. He found it very strange that the problem of the conditions of detention of persons prosecuted for terrorism should be completely disregarded despite the fact that this issue had been central to the Court’s concerns in the aforementioned case of Babar Ahmad and Others. In fact, the CagePrisoners NGO, which supported Muslim prisoners held by the US on terrorism charges, had conducted an investigation which showed that such prisoners suffered very strict conditions of detention and a policy of discrimination in prison, were tortured in order to extract confessions, and were sentenced to disproportionate and unfair terms of imprisonment, and so on. 97. The applicant provided a different interpretation of the statistics cited by the Government. He pointed out that the average sentence length of 8.4 years excluded life sentences and took no account of the period of detention served by sentenced persons who were either released at the time of trial or placed on probation. Nor did these studies cover persons who had been arrested during the reference period but had not yet been tried. Furthermore, the US Department of Justice produced different figures: of the 403 persons already tried between 11 September 2001 and 18 March 2010, thirty-one had not yet been convicted, twelve had been given life sentences and five had been sentenced to sixty or more years’ imprisonment. The applicant cited the case of Richard Reid, whose name had been mentioned on several occasions in the criminal file which had led to the applicant’s conviction in Belgium, as well as during the extradition proceedings. Richard Reid had been sentenced in 2003 to life imprisonment on the same charge B as the applicant, for planning to destroy an aircraft during flight by means of explosives hidden in his shoes. 98. The applicant contended that his case was incomparable to that of the applicants in the aforementioned case of Babar Ahmad and Others because he had already been sentenced by the Belgian courts to the maximum penalty applicable in Belgium at the time of the facts charged and that he had not benefited from any mitigating circumstances. 99. Lastly the applicant argued that his only “hope of being released” lay in the prospects for the success, which were de facto non-existent “post-9/11”, of a request for a Presidential pardon or sentence commutation. This possibility, which lay in the hands of the executive without judicial supervision, not only bore no resemblance to a guarantee but was also totally non-juridical. It was subject to changing public opinion and was based on no predefined minimum criteria. It was therefore diametrically opposed to the requirements of coherency and foreseeability established in the aforementioned Vinter and Others judgment. b) The Government 100. As a preliminary point, the Government argued that in line with the Court’s approach in the aforementioned cases of Harkins and Edwards and Babar Ahmad and Others, the life-sentence issue had to be analysed against the background of an extradition, and it had to borne in mind that the applicant’s extradition had been requested solely for the purposes of prosecution before the US courts and that there was no certainty that the applicant would be found guilty of the charges against him. 101. Regard should also be had to the fact that even if the constituent elements of the offences set out in charges A and B (see paragraph 13 above), for which the applicant was liable to life imprisonment (see paragraph 15 above) were all present, the US authorities had provided assurances that such a sentence was discretionary and that the court dealing with the case was not obliged to impose the maximum penalty provided for by law. Furthermore, were a life sentence to be imposed, there were direct and indirect legal remedies against the conviction and the sentence, a possibility of requesting review of the conviction and means of reducing sentence. All this was in addition to the assurance provided by the US authorities that the applicant would be tried in the ordinary courts, that he would only be held in a civilian prison and that he was in no way exposed to the death penalty. 102. The Government submitted that there was no reason to doubt the assurances provided. Belgium had been bound by an extradition treaty with the United States since 1901 and had never experienced any cases of non-compliance by the United States with the obligations deriving from the diplomatic safeguards given. 103. At all events, according to the Government, any real risk of the applicant being subsequently sentenced to the maximum penalty laid down for the offences set out in charges A and B was limited, as attested by the data set out in the Human Rights First reports backed up by the statistics provided by the US Department of Justice on convictions for acts of terrorism (paragraph 29 above). Those publications showed clearly that all the cases of life sentences concerned much more serious offences than those with which the applicant had been charged. The example of Richard Reid cited by the applicant (see paragraph 97 above) fell into the same category because Reid had been arrested while he was engaged in carrying out his plan. In other cases individuals suspected of offences such as those set out in charges A and/or B applicable to the applicant had not been sentenced to the maximum penalty provided for by US law. 104. As to whether the life sentence to which the applicant was liable for the offences set out in charges A and B passed the “test” set by the Court in the aforementioned case of Kafkaris and was reducible de jure and de facto, the Government invited the Court to adopt the same reasoning as in the aforementioned cases of Babar Ahmad and Others and Harkins and Edwards. 105. Assuming that the question of proportionality was relevant in the present case despite the fact that the applicant’s extradition had only been requested for the purpose of his prosecution, it should first of all be pointed out that in view of the gravity of the charges against him the penalties which he risked incurring were not manifestly disproportionate. The only question arising was therefore whether, notwithstanding the fact that he was liable to a life sentence, he could be regarded as having any prospect of being released. 106. The first fact to be noted, one which had been acknowledged by the applicant before the Conseil d’Etat, was that in view of the legal possibilities of obtaining a commutation of sentence or a Presidential pardon in the United States as described in the diplomatic note of 10 August 2010, life sentences were reducible de jure. 107. Secondly, it was established that sentence reductions and Presidential pardons had indeed been granted on several occasions and that life sentences were also reducible de facto. The Government provided supporting statistics on the pardons and sentence reductions which had been granted since 1990, consultable on the US website of the Department of Justice. They submitted that all US Presidents had hitherto used their right to commute sentences and/or grant pardons. President George Bush had done so in 2008 in the case of a person who had been sentenced to life imprisonment without parole for drug trafficking. These measures had also been implemented for persons convicted of offences against national security, as in the case of the FALN members cited by the US authorities in their diplomatic note of 10 August 2010. 108. No other conclusion could be drawn from the fact that there had been no sentence reductions or Presidential pardons for individuals sentenced to life imprisonment for al-Qaeda-linked acts of terrorism. The same reasoning should be used as in Iorgov v. Bulgaria (no. 2) (no. 36295/02, 2 September 2010): since the sentences imposed by the US authorities for such acts had all been recent, the persons thus sentenced could not yet have requested a Presidential pardon. They were not eligible for such a measure until they had served part of their prison sentences. The lack of pardons for such offences could not therefore support the conclusion that the pardon system did not work. Supposing that he was convicted, when he had served part of his sentence the applicant could, at the appropriate time and in accordance with the provisions of US law, apply for a Presidential pardon or a sentence commutation. Several factors, or changes in the situation, might militate in favour of or against such a measure, and it was impossible at the current stage to speculate whether or when the applicant could be released. 109. The Government also contended that the US system met the requirements specified by the Court in its aforementioned Vinter and Others judgment, which, they stressed, had concerned mandatory life sentences, and not discretionary ones as in the present case. A Presidential pardon was a known measure which was therefore foreseeable under the legislation, and an appropriate measure which was broad enough to provide certain legal prospects of release to prisoners serving whole-life sentences. That having been said, it was also important to note that the US system was different from that of the United Kingdom. Unlike in the UK, a person convicted in the United States could apply for a pardon or a commutation of his sentence at any time. The duration or nature of the sentence was irrelevant. A convicted person could submit an unlimited number of applications. The procedure required prior assessment by the Pardon Attorney, who operated within the Department of Justice, and who provided a non-binding opinion to the President taking account of the circumstances of the offence and the applicant’s character. 2. The Court’s assessment 110. The alleged violation consisted in having exposed the applicant, by extraditing him to the United States, to the risk of an irreducible life sentence without parole, in breach of the requirements of Article 3 of the Convention. 111. The Court will begin its examination of the matter before it with a number of general considerations on the state of its case-law on Article 3, dealing first of all with life sentences and then going on to the removal of aliens from the national territory. It will subsequently address the issue of the application of the principles on life sentences to the specific situation of the applicant, who has been extradited. a) Principles applicable to life imprisonment 112. It is well-established in the Court’s case-law that the imposition of a sentence of life imprisonment on an adult offender is not in itself prohibited by or incompatible with Article 3 or any other Article of the Convention (see Kafkaris, cited above, § 97, and references cited therein), provided that it is not grossly disproportionate (see Vinter and Others, cited above, §§ 88 and 89). The Court has, however, held that the imposition of an irreducible life sentence on an adult may raise an issue under Article 3 (see Kafkaris, cited above, § 97). 113. This latter principle gives rise to two further ones. First of all, Article 3 does not prevent life prison sentences from being, in practice, served in their entirety. What Article 3 does prohibit is that a life sentence should be irreducible de jure and de facto. Secondly, in determining whether a life sentence in a given case can be regarded as irreducible, the Court seeks to ascertain whether a life prisoner can be said to have any prospect of release. Where national law affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, this will be sufficient to satisfy Article 3 (see Kafkaris, cited above, § 98, and references cited therein). 114. Until recently the Court had held that the sole possibility of adjustment of a life sentence was sufficient to fulfil the requirements of Article 3. It had thus ruled that the possibility of early release, even where such a decision was only at the discretion of the Head of State (see Kafkaris, cited above, § 103) or the hope of Presidential clemency in the form of either a pardon or a commutation of sentence (see Iorgov v. Bulgaria (no. 2), no. 36295/02, §§ 51 to 60, 2 September 2010) was sufficient to establish such a possibility. 115. In Vinter and Others, cited above, the Court re-examined the problem of how to determine whether, in a given case, a life sentence could be regarded as reducible. It considered this issue in the light of the prevention and rehabilitation aims of the penalty (§§ 112 to 118). With reference to a principle already set out in the Kafkaris judgment, the Court pointed out that if a life sentence was to be regarded as reducible, it should be subject to a review which allowed the domestic authorities to consider whether any changes in the life prisoner were so significant, and such progress towards rehabilitation had been made in the course of the sentence, as to mean that continued detention could no longer be justified on legitimate penological grounds (§ 119). Furthermore, the Court explained for the first time that a whole-life prisoner was entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence would take place or could be sought. Consequently, where domestic law did not provide any mechanism or possibility for review of a whole-life sentence, the incompatibility with Article 3 on this ground already arose at the moment of the imposition of the whole-life sentence and not at a later stage of incarceration (§ 122). b) Principles applicable to removal of aliens 116. Under well-established case-law, protection against the treatment prohibited under Article 3 is absolute, and as a result the extradition of a person by a Contracting State can raise problems under this provision and therefore engage the responsibility of the State in question under the Convention, where there are serious grounds to believe that if the person is extradited to the requesting country he would run the real risk of being subjected to treatment contrary to Article 3 (see Soering v. United Kingdom, 7 July 1989, § 88, Series A no. 161). The fact that the ill-treatment is inflicted by a non-Convention State is beside the point (see Saadi, cited above, § 138). In such cases Article 3 implies an obligation not to remove the person in question to the said country, even if it is a non-Convention State. The Court draws no distinction in terms of the legal basis for removal; it adopts the same approach in cases of both expulsion and extradition (see Harkins and Edwards, cited above, § 120, and Babar Ahmad and Others, cited above, § 168). 117. Moreover, the Court reiterates that it is acutely conscious of the difficulties faced by States in protecting their populations against terrorist violence, which constitutes, in itself, a grave threat to human rights. It is therefore careful not to underestimate the extent of the danger represented by terrorism and the threat it poses to society (see Othman (Abu Qatada) v. United Kingdom, no. 8139/09, § 183, ECHR 2012, and the references cited therein). It considers it legitimate, in the face of such a threat, for Contracting States to take a firm stand against those who contribute to terrorist acts ( ibid ). Lastly, the Court does not lose sight of the fundamental aim of extradition, which is to prevent fugitive offenders from evading justice, nor the beneficial purpose which it pursues for all States in a context where crime is taking on a larger international dimension (see Soering, cited above, § 86). 118. However, none of these factors have any effect on the absolute nature of Article 3. As the Court has affirmed on several occasions, this rule brooks no exception. The principle has therefore had to be reaffirmed on many occasions since Chahal v. the United Kingdom (15 November 1996, §§ 80 et 81, Reports of Judgments and Decisions 1996-V), to the effect that it is not possible to make the activities of the individual in question, however undesirable or dangerous, a material consideration or to weigh the risk of ill-treatment against the reasons put forward for the expulsion in order to determine whether the responsibility of the State is engaged under Article 3 (see Saadi, cited above, § 138; see also Daoudi v. France, no. 19576/08, § 64, 3 December 2009, and M. S. v. Belgium, no. 50012/08, §§ 126 and 127, 31 January 2012). 119. In order to establish such responsibility, the Court must inevitably assess the situation in the requesting country in terms of the requirements of Article 3. This does not, however, involve making the Convention an instrument governing the actions of States not Parties to it or requiring Contracting States to impose standards on such States (see Soering, cited above, § 86, and Al-Skeini and Others v. United Kingdom [GC], no. 55721/07, § 141, ECHR 2011). In so far as any liability under the Convention is or may be incurred, it is incurred by the extraditing Contracting State by reason of its having taken action which has the direct consequence of exposing an individual to proscribed ill-treatment (see Soering, cited above, § 91; Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005 ‑ I; and Saadi, cited above, § 126). 120. If the extradition is likely to have consequences in the requesting country which are incompatible with Article 3 of the Convention, the Contracting State must not extradite. It is a matter of ensuring the effectiveness of the safeguard provided by Article 3 in view of the serious and irreparable nature of the alleged suffering risked (see Soering, cited above, § 90). c) Application of the principles to the present case 121. The Court notes that the applicant has been extradited to the United States, where he is being prosecuted on charges relating to al-Qaeda-inspired acts of terrorism, and that if he is found guilty and convicted of some of these offences he is liable to a maximum discretionary whole-life prison sentence. The sentence is discretionary in that the judge can impose a lighter penalty, with the option of imposing a fixed-term sentence. 122. The question to be addressed by the Court is whether, in view of the risk incurred, the applicant’s extradition was in violation of Article 3 of the Convention. The Court has several times in the past dealt with the issue of the risk of a whole-life sentence. In every case it has attempted to determine, on the basis of the diplomatic assurances provided by the requesting country, whether the extradition of the persons concerned did indeed expose them to such a risk, and if so, whether the life sentence could be reduced so that they had a hope of being released (see, among other authorities, Nivette v. France (dec.), no. 44190/98, ECHR 2001-VII; Einhorn v. France (dec.), no. 71555/01, ECHR 2001-XI; Salem v. Portugal (dec.), no. 26844/04, 9 May 2006; Olaechea Cahuas v. Spain, no. 24668/03, ECHR 2006-X; and Schuchter v. Italy, (dec.), no. 68476/10, 11 October 2011). 123. This issue arose once again in the cases of Harkins and Edwards and Babar Ahmad and Others, cited above. Most of the applicants in these cases had been threatened with extradition from the United Kingdom to the United States, where they faced prosecution for offences relating to al-Qaeda-inspired acts of terrorism and, in the event of conviction, were liable to mandatory or discretionary life sentences. 124. Drawing on its case-law on life imprisonment in the domestic system as set out in its Kafkaris judgment (see paragraphs 112 to 114 above), the Court held that, in the absence of gross disproportionality, a discretionary life sentence without parole would only raise an issue under Article 3 where it could be shown that the applicant’s continued imprisonment could no longer be justified on any legitimate penological grounds, and that the sentence was irreducible de facto and de jure (see Harkins and Edwards, cited above, § 135, and Babar Ahmad and Others, cited above, §§ 241 and 242). 125. The Court subsequently held that the applicants, who had not been convicted, still less begun serving any sentence imposed as a result of such conviction, had not shown that in the event of extradition their incarceration in the United States would not serve any legitimate penological purpose. It deemed it still less certain that if that point were ever reached, the US authorities would refuse to avail themselves of the available mechanisms to reduce their sentences (see Harkins and Edwards, cited above, §§ 140 and 142, and Babar Ahmad and Others, cited above, §§ 130, 131 and 243). The Court concluded that the risk of imposition of life sentences was no obstacle to the applicants’ extradition. 126. In the present case the Court notes that before his extradition the applicant had been in a situation very similar to that of the applicants in the case of Babar Ahmad and Others. 127. In line with the approach adopted in that case, the Court considers that in view of the gravity of the terrorist offences with which the applicant is charged and the fact that the sentence can only be imposed after the trial court has taken into consideration all relevant mitigating and aggravating factors, a discretionary life sentence would not be grossly disproportionate (see Babar Ahmad and Others, cited above, § 243). 128. The respondent Government essentially argued that in order to determine the conformity of this sentence with Article 3 of the Convention in the context of extradition, the “test” which the Court applied in the cases of Harkins and Edwards and Babar Ahmad and Others must also apply here and that there was no justification in the instant case for discarding this “test” on the basis of the more recent case-law established by the Vinter and Others judgment. 129. According to the Government, regard must be had to the fact that the applicant was extradited for the sole purpose of prosecution, that he has not yet been convicted and that it is therefore impossible to determine, before conviction, whether the point at which his incarceration would no longer serve any penological purpose would ever come, or to speculate on the manner in which, at that particular moment, the US authorities would implement the available mechanisms. In the Government’s view, the fact that the Court held in Vinter and Others (§ 122) that the starting time for determining conformity with Article 3 of the Convention was the date of imposition of the life sentence was irrelevant to the present case because the applicant has not yet been convicted. 130. The Court considers that it must reject this argument because it in effect obviates the preventive aim of Article 3 of the Convention in matters of removal of aliens, which is to prevent the persons concerned from actually suffering a penalty or treatment of a level of severity proscribed by this provision. The Court reiterates that Article 3 requires Contracting States to prevent the infliction of such treatment or the implementation of such a penalty (see paragraph 120 above). Furthermore, the Court holds, as it has done in all extradition cases since Soering, that it must assess the risk incurred by the applicant under Article 3 ex ante – that is to say, in the present case, before his possible conviction in the United States – and not ex post facto, as suggested by the Government. 131. The Court’s task is to ensure that the applicant’s extradition was compatible with Article 3 and therefore to consider whether the discretionary life sentence to which the applicant is liable fulfils the criteria which it has established in its case-law on this matter (see paragraphs 112 to 115 above). 132. In this connection, the Government affirmed that the US system fulfilled both the requirements set out by the Court in its Kafkaris judgment and the new criteria laid down by the Court in Vinter and Others. They submitted that the life sentence which the applicant risked incurring was reducible de jure because he would be able, under the US Constitution, to apply for a Presidential pardon or a commutation of sentence. He could submit such an application at any time after the conviction has become final, and as many times as he wished. His request would be considered by the Pardon Attorney, who would issue a non-binding opinion to the President. The grounds on which the applicant could obtain a pardon were, in the Government’s view, sufficiently broad, and in any case broader than those used in the United Kingdom, as assessed in the Vinter and Others judgment. The discretionary life sentence was also reducible de facto. The Government referred to the diplomatic assurances and statistics provided by the US authorities showing that all the US Presidents had used their powers of pardon and/or commutation of sentence and that they had previously granted such facilities to persons sentenced to life imprisonment or imprisoned for offences relating to national security. 133. The applicant submitted that his only “hope of release” lay in the prospects of success, which were de facto non-existent in the aftermath of the 11 September 2001 terrorist attacks, of an application for a Presidential pardon or commutation of sentence. This possibility, which was completely at the discretion of the executive, was no guarantee and was based on no predefined criterion. That being the case, the discretionary life sentence which he might incur could not be considered reducible de jure and de facto within the meaning of the Court’s Vinter and Others judgment. 134. The Court understands the US legal provisions referred to in the diplomatic note of 10 August 2010 provided by the US authorities as not providing for possible release on parole in the event of a life sentence, whether mandatory or discretionary, but infers that there are several possibilities for reducing such a sentence. The sentence can be reduced on the basis of substantial cooperation on the part of the prisoner in the investigation of his case and the prosecution of one or more third persons. It can also be reduced for compelling humanitarian reasons. Furthermore, prisoners may apply for commutation of their sentence or for a Presidential pardon under the US Constitution (see paragraphs 27 and 79 to 83 above). 135. The Court further notes that despite the express requirement stipulated on 10 June 2010 by the Indictments Division of the Brussels Court of Appeal in its opinion on the applicant’s extradition (see paragraph 26 above), the US authorities have at no point provided an assurance that the applicant would be spared a life sentence or that, should such a sentence be imposed, it would be accompanied by a reduction or commutation of sentence (see, by contrast, Olaechea Cahuas, cited above, § 43, and Rushing v. Netherlands (dec.), no. 3325/10, § 26, 27 November 2012). It therefore does not have to ascertain, in this case, whether the assurances provided by the requesting authorities are sufficient, in terms of their content, to guarantee that the applicant is protected against the risk of a penalty incompatible with Article 3 of the Convention. It considers that in any case the US authorities’ explanations concerning sentencing and their references to the applicable provisions of US legislation on sentence reduction and Presidential pardons are very general and vague and cannot be deemed sufficiently precise (see Othman (Abu Qatada), cited above, § 189). 136. The Court now comes to the central issue in the present case, which involves establishing whether, over and above the assurances provided, the provisions of US legislation governing the possibilities for reduction of life sentences and Presidential pardons fulfil the criteria which it has laid down for assessing the reducibility of a life sentence and its conformity with Article 3 of the Convention. 137. No lengthy disquisitions are required to answer this question: the Court needs simply note that while the said provisions point to the existence of a “prospect of release” within the meaning of the Kafkaris judgment – even if doubts might be expressed as to the reality of such a prospect in practice – none of the procedures provided for amounts to a review mechanism requiring the national authorities to ascertain, on the basis of objective, pre-established criteria of which the prisoner had precise cognisance at the time of imposition of the life sentence, whether, while serving his sentence, the prisoner has changed and progressed to such an extent that continued detention can no longer be justified on legitimate penological grounds (see paragraph 115 above). 138. Under these conditions, the Court considers that the life sentence liable to be imposed on the applicant cannot be described as reducible for the purposes of Article 3 of the Convention within the meaning of the Vinter and Others judgment. By exposing the applicant to the risk of treatment contrary to this provision the Government engaged the respondent State’s responsibility under the Convention. 139. The Court accordingly concludes that the applicant’s extradition to the United States of America amounted to a violation of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION 140. The applicant complained that his extradition to the United States had been in breach of the interim measure indicated by the Court in accordance with Rule 39 of its Rules of Court, and that the extradition had therefore amounted to a violation of his right of individual petition. He relied on Article 34 of the Convention, which reads as follows: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” Rule 39 of the Rules of Court provides as follows: “1. The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may, at the request of a party or of any other person concerned, or of their own motion, indicate to the parties any interim measure which they consider should be adopted in the interests of the parties or of the proper conduct of the proceedings. 2. Where it is considered appropriate, immediate notice of the measure adopted in a particular case may be given to the Committee of Ministers. 3. The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may request information from the parties on any matter connected with the implementation of any interim measure indicated.” A. The parties’ submissions 141. The applicant submitted that his extradition in contravention of the interim measure indicated by the Court had been decided without any regard to legal considerations and had stemmed from a deliberate political decision based on fallacious reasons. The Government provided no evidence to substantiate the applicant’s so-called dangerousness; moreover, the applicant had not been the subject of any investigation consequent upon any attempted escape or acts of proselytising; on the contrary, all the opinions of the governors of the prisons in which the applicant had been held mentioned his irreproachable behaviour. The only reason for the Belgian Government’s action had been a political determination to hand the applicant over to the US authorities as quickly as possible and to avoid a Court judgment finding a violation of Article 3 in the event of extradition. This determination had in fact long been in evidence, as could be seen by the repeated requests for the lifting of the interim measure while the appeal pending before the Conseil d’Etat was not of suspensive effect vis-à-vis the decision to extradite. In so doing the Government had irreversibly infringed the applicant’s right of individual petition, as he now found it legally impossible, because of his extradition, and materially impossible, because of his solitary confinement in a prison virtually cut off from the outside world, to usefully pursue his application to the Court. 142. The Government first of all pointed out that according to the Court’s case-law, particularly the Mamatkulov and Askarov judgment (cited above, § 108), the purpose of an interim measure was to facilitate the exercise of the right of individual petition secured under Article 34 of the Convention, and therefore to preserve the subject of the application when the Court considered that there was a risk of the applicant suffering irreparable damage. In the instant case, however, the Court should have deduced from the inadmissible nature of the request (see paragraph 39 above) that the interim measure lacked any real justification. 143. Secondly, the Government expounded the reasons for which it had extradited the applicant on 3 October 2013. The extradition had been decided in the wake of the judgment delivered by the Conseil d’Etat on 23 September 2013 explaining in detail, and with full knowledge of the Court’s case-law, why the applicant’s complaints of a violation of the Convention were unfounded. Both the Minister and the Conseil d’Etat had been assured, by virtue of the guarantees provided by the US authorities, that the applicant would not be exposed to treatment contrary to Article 3 of the Convention. Furthermore, the applicant had posed a threat to law and order in Belgium because of his proselytising in prison, his contacts with extremist jihadist circles and his attempts to escape, and the longer he remained in prison the more likely it had become that the investigating judicial bodies would order his release. The Government had not wished to run the risk of being unable to honour its commitment to hand over the applicant to the United States because he had escaped or been released. B. The Court’s assessment 144. The Court recently reiterated, in the case of Savriddin Dzhurayev v. Russia, no. 71386/10, §§ 211 to 213, ECHR 2013 (extracts), the crucial importance of and the vital role played by interim measures under the Convention system. The Court now refers to this judgment. 145. Considering the present case in the light of these principles, the Court reiterates that on 6 December 2011 it acceded to the applicant’s request to apply Rule 39 of the Rules of Court, and indicated that in the interests of the parties and the smooth running of the proceedings before it, the Belgian Government should not extradite the applicant to the United States. It also reiterates that it thrice refused to accede to the Government’s request to lift the interim measure and explained on several occasions – the last time being on 18 June 2013 – that the said measure had been indicated until the conclusion of the proceedings before it. The Government had therefore been fully aware of the scope of the measure. 146. On 3 October 2013 Belgium nevertheless extradited the applicant to the United States (see paragraph 62 above). 147. The Government suggested that the interim measure had been unjustified because it was “premature” and that the Court should have reviewed its justification after an assessment of admissibility. 148. The Court observes that it indicated to the Belgian Government that it should stay the extradition on the day of notification of the ministerial decree granting the applicant’s extradition (see paragraph 39 above). Although at that time the applicant could have brought an application for judicial review of this decree before the Conseil d’Etat, such action lacked any suspensive effect vis-à-vis extradition and therefore did not fulfil the Court’s requirements in terms of effectiveness under Article 13 of the Convention (see, mutatis mutandis, Čonka v. Belgium, no. 51564/99, § 83, ECHR 2002 ‑ I; Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 200, ECHR 2012; and De Souza Ribeiro v. France [GC], no. 22689/07, § 82, ECHR 2012). Thus, in accordance with case-law, the fact that this remedy had not been exhausted was immaterial. 149. The Government acknowledged that the Belgian authorities had acted in breach of the interim measure indicated by the Court. They considered, however, that this attitude had been justified in that it had been ascertained that the applicant would not be exposed to treatment contrary to the Convention and because the utmost had to be done to ensure his handover to the US authorities owing to the risk of his escape or a judicial decision to release him. The proceedings before the Court had jeopardised Belgium’s commitments to the United States, and extending them had increased the risk of the applicant evading the Belgian authorities. 150. The Court notes that the respondent State deliberately and irreversibly lowered the level of protection of the rights set out in Article 3 of the Convention which the applicant had endeavoured to uphold by lodging his application with the Court. The extradition has, at the very least, rendered any finding of a violation of the Convention otiose, as the applicant has been removed to a country which is not a Party to that instrument, where he alleged that he would be exposed to treatment contrary to the Convention. 151. The Court considers that none of the arguments put forward by the Belgian Government justified its non-compliance with the interim measure. Although the Government have never concealed from the Court their awkward position vis-à-vis the US authorities and their wish to have the interim measure lifted, at no point did they mention any possible attempts to explain the situation to those authorities or to find an alternative to the applicant’s detention whereby the Belgian authorities could still keep him under surveillance. Furthermore, knowing that the Court had examined all the arguments advanced by the Government’s with a view to persuading it to terminate the measure, including the diplomatic assurances provided by the US authorities, and had rejected them, it was not for the Belgian State, in the wake of the judgment of the Conseil d’Etat, to substitute its own appraisal for the Court’s assessment of these assurances and the merits of the application and decide to override the interim measure indicated by the Court. 152. The Court also reiterates that the effective exercise of the right of petition requires it to be able, throughout the proceedings before it, to examine the application in accordance with its usual procedure. 153. The fact is that in the instant case the applicant is being held in solitary confinement in a prison in the United States, and, as ascertained by his lawyer, is enjoying very little contact with the outside world (see paragraphs 64 to 67 above). He does not seem to have been able to have direct contact with his representative before the Court. These factors are enough for the Court to consider that the Government’s actions have made it more difficult for the applicant to exercise his right of petition and that the exercise of the rights secured under Article 34 of the Convention have therefore been impeded (see, mutatis mutandis, Shtukaturov v. Russia, no. 44009/05, § 147, 27 March 2008, and Toumi v. Italy, no. 25716/09, § 76, 5 April 2011). 154. In the light of the information in its possession, the Court concludes that by deliberately failing to comply with the interim measure indicated in pursuance of Rule 39 of the Rules of Court, the respondent State failed to honour the obligations incumbent on it under Article 34 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION A. Other complaint of a violation of Article 3 155. The applicant alleged in substance that his conditions of detention in Belgium had constituted treatment contrary to Article 3 of the Convention. He complained of the constant transfers from one prison to another, the conditions under which the transfers had taken place and the special security measures applied to him during his incarceration. He backed up this complaint with several reports drawn up by psychiatrists pointing to the negative effects of such a situation on his mental health. 156. The Government pointed out that the applicant had not brought any judicial action complaining of his conditions of detention and the transfers. 157. In the absence of any proceedings before the domestic courts concerning this complaint, the Court considers that it must be dismissed for non-exhaustion of domestic remedies. 158. Consequently, this part of the application is inadmissible within the meaning of Article 35 § 1 of the Convention and must be dismissed in accordance with Article 35 § 4. B. Complaint of a violation of Article 6 § 1 of the Convention 159. The applicant submitted that he had not had the benefit of a fair trial or the safeguards which should accompany criminal proceedings during the judicial procedure for enforcement of the US arrest warrant. He relied on Article 6 § 1 of the Convention, which provides that: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” 160. The Court reiterates that extradition proceedings do not involve determining an applicant’s civil rights and obligations and do not relate to the merits of any criminal charge against him or her within the meaning of Article 6 § 1 of the Convention (see Raf v. Spain (dec.), no. 53652/00, 21 November 2000; Peñafiel Salgado v. Spain (dec.), no. 65964/01, 16 April 2002; Sardinas Albo v. Italy (dec.), no. 56271/00, ECHR 2004-I; Cipriani v. Italy (dec.), no. 22142/07, 30 March 2010; and Schuchter, decision cited above). Therefore Article 6 § 1 of the Convention is inapplicable to the impugned extradition proceedings. 161. Consequently, this part of the application is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3 a), and must be dismissed in pursuance of Article 35 § 4. C. Complaint of a violation of Article 4 of Protocol No. 7 162. In his initial application, the applicant alleged in substance that his extradition violated Article 4 of Protocol No. 7, which reads as follows: “1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. 2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. 3. No derogation from this Article shall be made under Article 15 of the Convention.” Protocol No. 7 came into force in respect of Belgium on 1 July 2012. 163. The applicant invited the Court to find that the arrest warrant issued on 16 November 2007 by the District Court of the District of Columbia could not have been declared enforceable without violating the ne bis in idem principle. He submitted that an analysis of the criminal file and the decisions given disclosed that all the “overt acts” listed by the US authorities in support of the first charge and repeated in support of the other charges had been mentioned and/or detailed during the investigation conducted in Belgium. 164. Even supposing that this part of the application is compatible ratione temporis with the Convention, the Court reiterates its case-law to the effect that Article 4 of Protocol No. 7 does not secure the ne bis in idem principle in respect of prosecutions and convictions in different States (see, among other authorities, Gestra v. Italy (dec.), no. 21072/92, 16 January 1995; Amrollahi v. Denmark (dec.), no. 56811/00, 28 June 2001; Da Luz Domingues Ferreira v. Belgium (dec.), no. 50049/99, 6 July 2006; and Sarria v. Poland (dec.), no. 45618/09, 18 December 2012). 165. At all events, the ministerial decree granting the applicant’s extradition explained that US law drew a clear distinction between the actual offences for which extradition was requested and “overt acts”, which were mere factors presented in support of the charges (see paragraph 31 above). The Conseil d’Etat noted that comparison of all the “overt acts” with the Belgian charges showed that “the former have no territorial link with the Kingdom of Belgium, constituting a set of acts which serve as the constituent elements of the four charges presented by the US authorities” (see paragraph 37 above). The Court sees nothing arbitrary or unreasonable in these interpretations and conclusions. 166. Consequently, this part of the application is incompatible ratione materiae with the provisions of the Convention, or is at least manifestly ill-founded within the meaning of Article 35 § 3 a), and must be dismissed in pursuance of Article 35 § 4. D. Complaint of a violation of Article 8 of the Convention 167. Lastly, the applicant complained that his extradition to the US constituted an interference with his private and family life in Belgium, in breach of Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 168. The Court notes that the applicant’s extradition raises no issues regarding the criterion that interference must be in accordance with the law and pursue a legitimate aim. 169. As to the necessity of the measure, the Court reiterates that it is only in exceptional circumstances that an applicant’s private or family life in a Contracting State can outweigh the legitimate aim pursued by his or her extradition (see King v. the United Kingdom (dec.), no. 9742/07, § 29, 26 January 2010, and Babar Ahmad and Others, cited above, § 252). 170. In the present case the applicant submitted that he had been separated from his partner, who lived in Belgium and whom he wished to marry. In the Court’s view, that does not constitute an exceptional circumstance preventing the applicant’s extradition. Despite the great geographical distance between Belgium and the United States and the resultant limitation on contacts between the applicant and his partner should he be convicted and remain in prison, the Court must take into account the gravity of the offences for which the applicant is being prosecuted in the United States. It considers that the public interest in extraditing the applicant may be seen as weighing more heavily in terms of all the interests involved. For this reason, and in view of Belgium’s interest in honouring its commitments to the United States – without prejudice to its obligation to comply with the other provisions of the Convention, particularly Articles 3 and 34 – the Court considers that the applicant’s extradition was not in breach of Article 8 of the Convention. 171. Consequently, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 a) of the Convention and must be dismissed in accordance with Article 35 § 4. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 172. Article 41 of the Convention provides as follows: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 173. The applicant claimed EUR 1,000,000 in respect of the damage which he had suffered owing to his extradition in breach of the Convention. He stated that this sum covered both pecuniary and non-pecuniary damage. Where pecuniary damage was concerned, he explained that since he was incarcerated in the United States he needed substantial financial resources in order to pay for the services of a legal team capable of defending him. 174. The Government considered this amount grossly excessive, observing that care had to be taken, in the applicant’s case, to ensure that any major compensatory sums did not lead to financing the international terrorism in which he was still involved owing to his numerous contacts with radical Islamist movements. 175. In the absence of evidence enabling it to assess whether the alleged pecuniary damage has been proved and to calculate the sums claimed to compensate for such damage, the Court dismisses the applicant’s claims in this respect. 176. On the other hand the Court considers that the applicant has suffered non-pecuniary damage owing to his extradition to the United States. Ruling on an equitable basis in accordance with Article 41 of the Convention, it awards him EUR 60,000 in respect of non-pecuniary damage. B. Costs and expenses 177. The applicant also claimed reimbursement of the costs and expenses incurred for his defence before the Belgian courts and before the Court to a total of EUR 51,350. A first bill of costs mentions a sum of EUR 23,900 for the proceedings before the domestic courts and EUR 7,400 for the applicant’s defence before the Court, calculated on the basis of an hourly rate of EUR 100. The amounts awarded in respect of legal assistance, that is to say a total of EUR 9,550, must be deducted from those sums. The remaining costs were incurred by mailing and typing expenses. A second bill of costs was drawn up for the domestic proceedings conducted on the occasion of the applicant’s extradition and the continuation of proceedings before the Court, to a total of EUR 15,990. 178. According to the Court’s well-established case-law, an applicant is entitled to reimbursement of costs and expenses under Article 41 only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Furthermore, they are only recoverable to the extent that they relate to the violation found (see, mutatis mutandis, M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 418, ECHR 2011, and Creangă v. Romania [GC], no. 29226/03, § 130, 23 February 2012). In this connection the Court reiterates that the applicant’s claims were only partially successful before it. 179. Making its own estimate on the basis of the information available, the Court considers it reasonable to award the applicant EUR 30,000 to cover all costs and expenses. C. Default interest 180. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that the applicant’s extradition to the United States entailed a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. It considered that the life sentence to which the applicant was liable in the United States was irreducible inasmuch as US law provided for no adequate mechanism for reviewing this type of sentence, and that it was therefore contrary to the provisions of Article 3. The Court also held that there had been a violation of Article 34 (right of individual application) of the Convention: the failure of the Belgian State to observe the suspension of extradition indicated by the Court had irreversibly lowered the level of protection of the rights secured under Article 3 of the Convention, which the applicant had attempted to uphold by lodging his application with the Court, and had interfered with his right of individual application. |
558 | Way of life, forced evictions and alternative accommodation | THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 103. The applicants complained, relying on Article 8 of the Convention, that their eviction from the land where they had been settled for a long time constituted a violation of their right to respect for their private and family life and their home. They further relied on Article 3 of the Convention, taken alone and in combination with Article 14 of the Convention, and on Article 18 of the Convention taken together with Article 8. The Court will examine this complaint under Article 8, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 104. The Government contested that argument. ... B. Merits 1. The parties ’ submissions ( a) The applicants 119. The applicants asked the Court to find that there had been an interference by the State with their right to respect for their private and family life and their home, even though the State denied this on account of the “reduced effects” of the court decisions in question, which had not been enforced. Concerning the coercive fines imposed, it did not matter for them whether or not they were payable, because the mere fact that the municipality had sought them constituted a means of pressure which it had never said that it would renounce. Moreover, as the coercive fines could become payable at any time, the applicants remaining on the land continued, even now, to remain subject to whatever action the municipality and the State saw fit to take. 120. They further emphasised the consequences of the court decisions against them : the pressure of the fines, threats of eviction, and various forms of harassment and refusals by the municipality, and the operation of construction machinery on their place of residence. They claimed that, in addition to the distress and humiliation endured, the fear of those decisions being enforced had obliged certain families to quit, leaving behind many of their possessions and taking their children out of school. 121. As to the Government ’ s argument to the effect that the interference had been foreseeable, on the ground that the decisions at issue had been taken at the end of lengthy proceedings, which could be explained particularly by their non-conciliatory attitude, the applicants replied that they had made numerous attempts, in good faith, to resolve the matter out of court, by consulting the municipality, submitting applications for social housing ( whether ordinary or, in most cases, in the form of family plots ), asking the court to set up a mediation process and insisting on their participation in the MOUS study. They observed that the municipality of Herblay, for its part, had never proposed any dialogue with them for the purpose of finding a place where they could live, that the mayor had refused – which was highly unusual – to co-sign the MOUS, despite the prefect ’ s proposal to cover the whole cost, and that the municipality had ultimately refused to legally recognise part of its population ( even though travellers accounted for about 10%, with some families having been there for several generations ). 122. Countering the Government ’ s arguments as to the legitimacy of the decisions taken and their proportionality in relation to the existence of a pressing social need, the applicants alleged that those decisions were not legitimate. They referred to the finding from the Court ’ s case-law cited by the Government themselves to the effect that “occupation of [a] caravan [was] an integral part of [the] identity” of travellers and that the State consequently had a positive obligation to respect their way of life. They were of the view that the Government were rendering that positive obligation meaningless by arguing that their wide margin of appreciation enabled them to give a planning regulation precedence over respect for the applicants ’ private and family life, their home and therefore their very identity. 123. Claiming that the State could strike a balance only between rights of equal value, the applicants requested the Court to find that there was a manifest imbalance between, on the one hand, the right to respect for one ’ s private and family life and one ’ s home and, on the other, land-use plans. They emphasised that a planning regulation could not, in principle, be regarded as constituting a pressing social need and denied that reasoning similar to that of the Chapman judgment could be applied, since the Herblay families had been living on the land even before its classification as a natural zone. While the lack of any housing solution suited to their way of life had certainly driven some of them to settle there without prior authorisation some years earlier, they had not disregarded any environmental regulations or, therefore, any norm meeting a “pressing” social need. Moreover, the State itself, by circumventing the natural zone classification to build a four-lane road there had proved the non- existence of any such need. They thus contended that there had been no legitimate aim. 124. The applicants claimed, in any event, that the State ’ s interference with their right to respect for their private and family life and their home could not be regarded as proportionate in the light of three factors : the duration of their residence in the municipality of Herblay, their destitution and, above all, the lack of any housing solution suited to their way of life. On the first point, they emphasised that they had been living on the land for many years, over thirty years for some families, and that under French law this gave them adverse possession. In their view it was therefore wrong for the Government to assert that the length of occupation did not give rise to any rights. 125. On the second point, they rejected the Government ’ s argument that their destitution had been sufficiently taken into account since the coercive fines had not become payable, and observed that, since the State could not have been unaware that they were receiving legal aid, it would be sufficient for the State not to maintain the penalty if it really wanted to take account of their economic situation. Noting that the Government had referred a number of times to the entry into force of the Law of 5 March 2007 on the enforceable right to housing ( the “ DALO Act” ), they pointed out that this legislation had entered into force well after the material time, that its application was limited, at least in the Val d ’ Oise, to a right to obtain ordinary social housing, and that applications from sedentarised travellers seeking social housing suited to their way of life and identity ( namely so-called mixed accommodation, a family plot or specially adapted housing ) had been declared inadmissible by the mediation board. They concluded that it was with regard to the lack of suitable possibilities for relocation that the State had least satisfied the condition of proportionality. ( b) The Government 126. The Government began by expressing doubts about the fact the impugned court decisions, having regard to their reduced effects, could constitute an interference, within the meaning of the above-cited Article 8, with the applicants ’ rights. They pointed out first that the municipality of Herblay had never forcibly evicted anyone from the land and that it was of their own volition and gradually that certain applicants had left, and second that the coercive fine had not become payable. 127. In any event, the Government argued that the decisions at issue met the requirements of Article 8. First, they were foreseeable, as it was not in dispute that the applicants were occupying the land in breach of planning regulations. Moreover, the judgment authorising the eviction had been given after lengthy proceedings which the applicants had not sought to bring to an end by making efforts to comply or to reach a compromise. In particular, the Government noted that the applicants had not, to their knowledge, even begun to comply with the injunction of 2 July 2004 requiring them to clear the land of car parts and rubbish. 128. Secondly, those decisions pursued a legitimate aim. In this connection the Government referred to the Court ’ s case-law ( in particular, the Chapman judgment, cited above ), according to which the need to respect the lifestyle of travellers, including when they were sedentary, concerned respect not only for their home but also for their private and family life, for “[m]easures affecting the applicant ’ s stationing of her caravans ... ha[d] an impact going beyond the right to respect for her home [and] also affect [ed] her ability to maintain her identity as a Gypsy and to lead her private and family life in accordance with that tradition ” ( ibid., § 73). Moreover, the Government pointed out that the Court had recognised the vulnerability of travellers and imposed on States a positive obligation to facilitate their way of life (ibid. , § 96). However, in their view, such a positive obligation could not be unlimited, as the State had some room for manoeuvre, provided it guaranteed the applicants ’ rights, which had to be weighed up against the interests of the community. In the present case, the judgment of 22 November 2004 had indicated that the occupied area corresponded to a “natural area qualifying for protection on account of the quality of its landscape and its various characteristics”, that the camping and caravanning for which it could be equipped was subject to specific regulations and that none of the occupants could rely on any permit or prefectoral order in their favour. The Government referred to the above-cited Chapman judgment (§§ 94-95 and § 102), suggesting that the same approach could be applied in the present case. 129. The Government argued, thirdly, that the judicial decisions at issue had been proportionate. They began by pointing out that the judges had taken into account the duration of the occupation of the land. The urgent eviction proceedings had thus resulted in the dismissal of the application on 2 July 2004, on the ground that as the occupation had been tolerated for many years the municipality could not rely either on any urgency or on any manifestly unlawful nuisance. Similarly, in its judgment of 13 October 2005, the Versailles Court of Appeal had referred to the prolonged tolerance of the occupation, nevertheless finding that this did not create any rights. The Government concluded that this important aspect had always been weighed in the balance by the domestic courts. 130. Lastly, the destitution of the persons concerned had never been disregarded by the authorities. The Government pointed out that the municipality of Herblay had never demanded payment of the coercive fine imposed by the court, that the applicants ’ financial resources entitled them to benefits which were easier to obtain since recent reforms, and that those resources had been taken into account by the authorities in their search for relocation solutions. 131. Lastly, the Government observed that it was necessary, in order to assess the proportionality of the interference, to examine the existing possibilities for a lternative housing. They pointed out, referring to the Chapman judgment, that the Court afforded States a wide margin of appreciation in such matters. After giving an overview of the land-use and real-estate context in the Val d ’ Oise, the Government indicated that the département -level accommodation action plan for persons in need (PDALPD) for 2008-2010, like the previous plan, took into account the need to develop specially adapted housing, especially for travellers who were sedentarised or were in the process of sedentarisation. They emphasised, however, that it was not easy to offer social housing to people who were looking for specially adapted forms of accommodation, such as travellers who wished to settle on rented municipal land. Thus, while some of the applicants had already been granted social housing, others preferred to wait for an offer to rent land. 132. The Government indicated that following the MOUS “ relocation ” plan for the five households identified in the context of the social study ( see paragraph 37 above ), four households had been rehoused in rented social housing in Herblay or in surrounding communities between April and July 2008; the fifth household ( a single person ) was waiting for a new offer of housing after rejecting an initial offer in June 2008. 133. The Government then described the progress made in the creation of family plots, a solution sought by a number of applicant households. They explained that, as regards the eight plots opened in December 2008 ( see paragraph 13 above ), the applicants were not among the beneficiaries, who had been involved in a previous MOUS. However, the implementation of the second phase provided for by the memorandum of understanding of 23 November 2004 (ibid. ) had been decided; the municipality had pursued its idea of acquiring a number of plots adjacent to those where the first eight had been created, making a total of 38 plots instead of the 26 initially planned. The acquisition of the plots was underway, together with a simplified review of the planning document, the plots in question being situated in the zone Na ( natural zone). The Government explained that it was not yet known which families would be allotted those new plots, but that the applicants would have the opportunity to be rehoused there at the time of completion, which was forthcoming at the time the Government filed their observations in early 2010. 134. The Government referred in general to the improvement in the taking into account of travellers in planning documents: the land-use plan (POS) as revised on 29 September 2005 included, in addition to the Nd zone reserved for caravans, a new UK zone created to release municipal land for urban planning and authorise the construction of buildings suited to the situation of sedentarised travellers, as shown by the resolutions of the Herblay municipal council dated 29 September 2005. The local planning plan (PLU) approved on 22 June 2006, replacing the POS, provided for zones (Uck and 1 AUk) which allowed for occupation by caravans for primarily residential use and the adapting of rented municipal land for sedentarised travellers. 135. The Government further indicated that, even though the municipality of Herblay was not subject to the obligation to create encampment spaces for nomadic travellers, its mayor had in 2008 proposed to join the mayors of Beauchamp and Pierrelaye in creating an encampment area serving all three municipalities, thereby creating twenty-five spaces in Beauchamp for the municipality of Herblay. 136. The Government emphasised the numerous public efforts made to offer housing corresponding to the applicants ’ specific requests and explained that the length of the relocation procedure was due to the need to create the structures which would meet those requests. While it was for the State to make sure that this offer was adapted as far as possible to the particular expectations, especially those of travellers, it did not, however, fall within the requirements of Article 8 to make available to them, without delay, an exact number of specific facilities. 137. The Government argued that there had been no violation of Article 8 of the Convention. ( c) The third-party intervener 138. The European Roma Rights Centre (the “ ERRC ” ) pointed out that the Court ’ s definition of “home”, within the meaning of Article 8 of the Convention, referred neither to the legal status of the inhabitant nor to the physical characteristics of the dwelling. The Court had recognised that caravans belonging to the Roma and travellers were “homes”, as the French Government had not disputed in Stenegry and Adam v. France ((dec.), no. 40987/05, 22 May 2007), and the issues of legal title or planning permission should be examined only in the context of Article 8 § 2. Under Article 1 of Protocol No. 1, the ERRC took the view that, in addition to the caravans, the sheds and bungalows of the Roma and travellers, even those erected without a permit on third parties ’ land, also had to be regarded as possessions. That approach would enable the Court to take account of the principles of international law in the field of housing, including the principle that evictions of vulnerable groups such as the Roma and travellers should only take place if a number of conditions were met, the most important one being the provision of an alternative relocation site. Roma caravans and sheds should be subject to demolition or removal under the same conditions as “ordinary” houses, including access to a court or administrative body which would adjudicate on the legality of the demolition taking the applicable principles into account. 139. In the ERRC ’ s view, the forced eviction of Roma and travellers from land which they occupied without permission and the demolition or removal of their caravans and sheds raised two questions : first, the destruction of their homes could in certain circumstances engage Article 3 of the Convention, and the same principles were applicable where they were intimidated or forced into abandoning the plot of land on which they were residing. Secondly, the ERRC argued that there was no judicial remedy capable of providing them with adequate redress, namely the provision of alternative accommodation, even though this was an obligation under both the Convention and the Social Charter. The offer of alternative accommodation had to be forthcoming before the decision ordering eviction and was a precondition for the legality of that decision. The ERRC also referred to the joint public statement of 24 October 2007 of the Council of Europe ’ s Commissioner for Human Rights and the United Nations Special Rapporteur on the Right to Adequate Housing ..., to the Basic Principles and Guidelines on Development-Based Evictions and Displacement, and its Collective Complaints against Greece, Italy and Bulgaria before the European Committee on Social Rights (nos. 15/2003, 27/2004 and 31/2005 respectively ). It further referred to General Comments nos. 4 and 7 of the United Nations Committee on Economic, Social and Cultural Rights concerning Article 11 § 1 of the International Covenant on Economic, Social and Cultural Rights ( which guaranteed among other things the right to adequate housing ... ). It contended that in the face of persistent failure by a number of States, including France, to provide adequate housing to Roma and travellers, the erection of sheds or the parking of caravans on a plot of land had to be regarded as “self-help” measures within the meaning of paragraph 10 of the above-cited General Comment no. 4. 140. The ERRC acknowledged that many Council of Europe member States had adopted ambitious programmes, such as France, which in 2000 started implementing a programme designed to meet primarily the needs of itinerant travellers. It referred to its collective complaint against France before the European Committee on Social Rights ( no. 51/2008) regarding the housing of Roma and travellers ... and cited the criticisms of the Commission nationale consultative des droits de l ’ homme (National Advisory Commission on Human Rights) about that issue and the problems in applying the Besson Act of 2000 .... It lastly referred mutatis mutandis, on the question of relocation, to cases against Turkey from the Court ’ s case-law ( in particular, Doğan and Others v. Turkey, nos. 8803 - 8811/02, 8813/02 and 8815 - 8819/02, § 154, 29 June 2004). 2. The Court ’ s assessment ( a) Whether there has been an interference 141. The Court reiterates that the concept of “home” within the meaning of Article 8 is not limited to premises which are lawfully occupied or which have been lawfully established. It is an autonomous concept which does not depend on classification under domestic law. Whether or not a particular premises constitutes a “home” which attracts the protection of Article 8 will depend on the factual circumstances, namely, the existence of sufficient and continuous links with a specific place (see Buckley v. the United Kingdom, 25 September 1996, §§ 52-54, Reports of Judgments and Decisions 1996-IV; McCann, cited above, § 46; Prokopovitch v. Russia, no. 58255/00, § 36, ECHR 2004 ‑ XI; and Orlić v. Croatia, no. 48833/07, § 54, 21 June 2011). In the present case it is not in dispute that, at the material time, the applicants had been residing for many years ( between five and thirty years ) at the locality of Bois du Trou-Poulet in Herblay. The Court thus takes the view that the applicants had sufficiently close and continuous links with the caravans, cabins and bungalows on the land occupied by them for this to be considered their “home”, regardless of the question of the lawfulness of the occupation under domestic law ( see Buckley, cited above, § 54; McCann, cited above, § 46; Orlić, cited above, § 55; and Yordanova and Others v. Bulgaria, no. 25446/06, § 103, 24 April 2012). 142. The Court observes that the present case also brings into play, in addition to the right to respect for one ’ s home, the applicants ’ right to respect for their private and family life, as the Government implicitly recognised. It reiterates that the occupation of a caravan is an integral part of the identity of travellers, even where they no longer live a wholly nomadic existence, and that measures affecting the stationing of caravans affect their ability to maintain their identity and to lead a private and family life in accordance with that tradition ( see Chapman, cited above, § 73; Connors cited above, § 68; and Wells v. the United Kingdom (dec.), no. 37794/05 ). 143. The Government contended that there was no interference with the applicants ’ rights in view of the “reduced effects” of the judicial decisions at issue. The Court is, however, of the view that the obligation imposed on the applicants, on pain of a coercive fine, to vacate their caravans and vehicles and to clear any constructions from the land constitutes an interference with their right to respect for their private and family life and their home, even though the judgment of 13 October 2005 has not to date been enforced ( see Chapman, cited above, § 78; mutatis mutandis, Ćosić v. Croatia, no. 28261/06, § 18, 15 January 2009; and Yordanova and Others, cited above, § 104). This is all the more true as the present case concerns decisions ordering the eviction of a community of about a hundred people, with inevitable repercussions on their lifestyle and their social and family ties ( see Yordanova and Others, cited above, § 105). The Court further observes that a significant number of the applicants have already left the site, whether temporarily or permanently, fearing that the judgment would be enforced and the fine would become payable. It also notes that the fine, for which no settlement date was fixed in the judgment, continues to run in respect of those applicants who have remained on the site. ( b) In accordance with the law 144. It can be seen from the domestic courts ’ decisions that they were based on the provisions of the Town and Country Planning Code and the land-use plan for the municipality of Herblay, the latter being automatically enforceable from the time of its publication. The Court notes that these provisions are accessible and foreseeable and thus concludes that the interference was in accordance with the law within the meaning of Article 8 § 2. ( c) Legitimate aim 145. The Government pointed out that the applicants unlawfully occupied a natural zone and suggested transposing the Court ’ s reasoning from the Chapman judgment, where it had referred to the “right of others in the community to environmental protection” (§ 102). The applicants, for their part, argued that they had been living on the land before it had been classified as a natural zone and, while they had admittedly settled there without prior permission, they had not flouted any rules of environmental protection. 146. The Court observes that the land occupied by the applicants is included, according to the land-use plan, in a zone corresponding to a “natural area qualifying for protection on account of the quality of its landscape and its various characteristics”. This zone can be developed and occupied only in accordance with specific regulations ... The Court thus takes the view that, as in the Chapman judgment (§ 82), the interference at issue pursued the legitimate aim of protecting the “rights of others” through preservation of the environment ( see also the decisions in Wells and Stenegry and Adam, cited above ). It remains to be established whether it was “necessary in a democratic society” within the meaning of Article 8 § 2. ( d) Whether the interference was necessary ( i) General principles 147. An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient”. While it is for the national authorities to make the initial assessment in all these respects, the final evaluation of whether the interference is necessary remains subject to review by the Court for conformity with the requirements of the Convention ( see Chapman, cited above, § 90, and S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 101). 148. A margin of appreciation must be left to the competent national authorities in this assessment. The breadth of this margin varies and depends on a number of factors, including the nature of the Convention right in issue, its importance for the individual, the nature of the interference and the object pursued by the interference ( see Chapman, cited above, § 91; S. and Marper, cited above, § 102; and Nada, cited above, § 184). The following points emerge from the Court ’ s case-law ( see Yordanova, cited above, § 118) : (α) In spheres involving the application of social or economic policies, including as regards housing, the Court affords the authorities considerable latitude. In this area it has found that “[i]n so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation” (see Buckley, cited above, § 75 in fine, and Ćosić, cited above, § 20), although the Court retains the power to find that the authorities have committed a manifest error of assessment (see Chapman, cited above, § 92). (β) On the other hand, the margin of appreciation left to the authorities will tend to be narrower where the right at stake is crucial to the individual ’ s effective enjoyment of fundamental or “ intimate ” rights. This is the case in particular for Article 8 rights, which are rights of central importance to the individual ’ s identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community (see, among many other authorities, Connors, cited above, § 82 ). (γ) It is appropriate to look at the procedural safeguards available to the individual to determine whether the respondent State has not exceeded its margin of appreciation in laying down the regulations. In particular, the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 (see Buckley, cited above, § 76, and Chapman, cited above, § 92). The requirement for the interference to be “necessary” raises a question of procedure as well of substance (see McCann, cited above, § 49 ). (δ) Since the loss of one ’ s home is a most extreme form of interference with the right under Article 8 to respect for one ’ s home, any person at risk of being a victim thereof should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, he has no right of occupation (see Kay and Others v. the United Kingdom, no. 37341/06, § 68, 21 September 2010, and Orlić, cited above, § 65). This means, among other things, that where relevant arguments concerning the proportionality of the interference have been raised by the applicant in domestic judicial proceedings, the domestic courts should examine them in detail and provide adequate reasons ( Orlić, cited above, §§ 67 and 71 ). ( ε) When considering whether an eviction measure is proportionate, the following considerations should be taken into account in particular. If the home was lawfully established, this factor would weigh against the legitimacy of requiring the individual to move. Conversely, if the establishment of the home was unlawful, the position of the individual concerned would be less strong. If no alternative accommodation is available the interference is more serious than where such accommodation is available. The evaluation of the suitability of alternative accommodation will involve a consideration of, on the one hand, the particular needs of the person concerned and, on the other, the rights of the local community to environmental protection ( see Chapman, cited above, §§ 102-104). ( ζ) Lastly, the vulnerable position of Roma and travellers as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in reaching decisions in particular cases ( see Chapman, cited above, § 96, and Connors, cited above, § 84); to this extent, there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the way of life of the Roma and travellers ( see Chapman, cited above, § 96, and the case-law cited therein ). ( ii) Application to the present case 149. The Court is of the view that the present application is comparable to the Yordanova and Others case (cited above), in which it had to examine the conformity with Article 8 of a decision by Bulgarian municipal authorities to expel a sedentary Roma community from land that they had been occupying for many years in Sofia. 150. In that case the Court noted that, while the authorities were in principle entitled to remove the applicants, who were illegally occupying municipal land ( ibid., § 120), they had not taken any steps to that end for several decades and had, therefore, de facto tolerated the unlawful settlement. The Court consequently took the view that this fact was highly pertinent and should have been taken into consideration; while the unlawful occupants could not claim any legitimate expectation to remain on the land, the authorities ’ inactivity had resulted in their developing strong links with the place and building a community life there. The Court concluded that the principle of proportionality required that such situations, where a whole community and a long period were concerned, be treated as being entirely different from routine cases of removal of an individual from unlawfully occupied property ( ibid., § 121). ( α) Examination of proportionality by competent authorities 151. In finding, in the Yordanova and Others judgment, that the requirement of proportionality under Article 8 § 2 had not been met, the Court primarily took into account the fact that, on the one hand, the municipal authorities, relying on the applicable domestic legal framework, had not give reasons in the eviction order other than to state that the applicants occupied the land unlawfully, and in the judicial review proceedings the domestic courts had expressly refused to hear arguments about proportionality and the lengthy period during which the applicants and their families had lived there undisturbed ( ibid., § 122). 152. The Court is of the view that the same approach can be adopted in the present case. It is not in dispute that the applicants had been living on the land for many years or had been born there, or that the municipality of Herblay had tolerated their presence for a long period before putting an end to it in 2004. One difference must be pointed out : unlike the situation in the Yordanova and Others case, the land occupied by the applicants was not municipal land but private land, of which they were mostly tenants and, in some case, owners, and this was land that could in principle be used for camping or caravanning, but which, in the absence of development or prefectoral authorisation, could not have caravans permanently stationed on it ... The Court notes that the reason which was given by the municipality to seek the applicants ’ eviction – and which was then endorsed by the domestic courts in ordering it – related to the fact that their presence on the land was in breach of the land-use plan ( see paragraphs 18 and 21 above ). 153. The Court observes that, before the domestic courts, the applicants raised grounds of defence that were based on the long duration of their settlement and the municipality ’ s tolerance, on the right to housing, on Articles 3 and 8 of the Convention and on the Court ’ s case-law ( especially the above-cited Connors judgment ). It is true, as the Government have pointed out, that in the injunction proceedings the court dismissed the eviction application on the ground that on account of the duration of the site ’ s occupation and the longstanding tolerance by the municipality, there was neither any urgency not any manifestly unlawful nuisance, the only grounds on which it could have based its jurisdiction ( see paragraph 19 above ). 154. However, the Court notes that in the proceedings on the merits those aspects were not taken into account : the tribunal de grande instance did not mention them and merely found that the applicants had not complied with the land-use plan, which was enforceable from the time of its publication. While it analysed the right to housing and its legislative and constitutional basis, it found that this right could not be guaranteed without regard for legality or in breach of the applicable rules. Lastly, it rejected the arguments under Articles 3 and 8 of the Convention on the grounds that the applicants ’ situation was different from that of the Connors family and that neither its decision nor the enforcement thereof could constitute a violation of the above-mentioned Articles 3 and 8. The Court of Appeal, for its part, after finding that the long duration of the occupation did not “ create rights, neither [did] the tolerance, however lengthy, of such occupation in breach of the provisions of the municipality ’ s land-use plan”, took the view that neither the right to housing nor the above-cited Articles 3 and 8 had been impaired since the municipality ’ s action had a legal basis “derived from compliance with regulations that [were] indiscriminately binding on everyone, thus sufficing to establish the public interest that [was] necessary for the exercise of such action”, that it had given rise to adversarial proceedings and that the enforcement of a court decision given with due regard for defence rights could not constitute treatment in breach of Article 3. 155. The Court reiterates that the loss of a dwelling is a most extreme form of interference with the right to respect for one ’ s home and that any person at risk of being a victim thereof should in principle be able to have the proportionality of the measure determined by a court. In particular, where relevant arguments concerning the proportionality of the interference have been raised, the domestic courts should examine them in detail and provide adequate reasons ( see the case-law cited in paragraph 148 (δ) above ). 156. In the present case, the domestic courts ordered the applicants ’ eviction without having analysed the proportionality of this measure ( see Orlić, cited above, § 67, and Yordanova and Others, cited above, § 122 ). Once they had found that the occupation did not comply with the land-use plan, they gave that aspect paramount importance, without weighing it up in any way against the applicants ’ arguments ( contrast Buckley, cited above, § 80, and Chapman, cited above, § § 108-109). As the Court emphasised in Yordanova and Others (§ 123), that approach is in itself problematic, amounting to a failure to comply with the principle of proportionality : the applicants ’ eviction can be regarded as “necessary in a democratic society” only if it meets a “ pressing social need ”, which is primarily for the domestic courts to assess. 157. In the present case, this question was all the more important as the authorities had not proposed any explanation or argument as to the “necessity” of the eviction, whereas the land in question had already been classified as a natural zone (zone ND) in the previous land-use plans ( see paragraph 16 above ), it was not municipal land earmarked for development ( contrast Yordanova and Others, cited above, § 26) and there were no third-party rights at stake ( see Orlić, cited above, § 69). 158. The Court thus finds that the applicants did not, in the eviction proceedings, have the benefit of an examination of the proportionality of the interference in compliance with the requirements of Article 8. ( β) Other facts 159. The Court must additionally, as in the case of Yordanova and Others, take account of the following aspects. First, as the Government have pointed out, it is appropriate, in order to assess the proportionality of the interference, to examine the possibilities of alternative housing that exist ( see Chapman, cited above, § 103). Admittedly, Article 8 does not in terms recognise a right to be provided with a home ( ibid., § 99 ), but in the specific circumstances of the case and in view of the long history of the presence of the applicants, their families and the community they had formed, the proportionality principle required, as the Court found in Yordanova and Others ( cited above, § 126), that due consideration be given to the consequences of their removal and to the risk of their becoming homeless. The Court would emphasise in this context that numerous international instruments, some of which have been adopted within the Council of Europe, emphasise the necessity, in the event of the forced eviction of Roma and travellers, of providing them with alternative housing, except in cases of force majeure : see Recommendation (2005)4 of the Committee of Ministers, Resolution 1740(2010) of the Parliamentary Assembly and the Position Paper of the Commissioner for Human Rights dated 15 September 2010 ... and, in more general terms, General Comment no. 7 of the United Nations Committee on Economic, Social and Cultural Rights ... 160. In addition, it is necessary, as the Government have accepted, to take into account the fact that the applicants belong to a vulnerable minority. The Court would refer to its previous finding that the vulnerable position of Gypsies and travellers as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in reaching decisions in particular cases ( see Connors, cited above, § 84; Chapman, cited above, § 96; and Stenegry and Adam, cited above ). It has also stated in Yordanova and Others ( cited above, §§ 129 and 133) that, in cases such as the present one, the applicants ’ specificity as an underprivileged social group and their resulting needs must be taken into account in the proportionality assessment that the national authorities are under a duty to undertake, not only when considering approaches to dealing with their unlawful settlement but also, if their removal is necessary, when deciding on its timing and manner and, if possible, arrangements for alternative shelter. 161. That was only partly true in the present case. While, as the Court has noted above, the consequences of the removal and the applicants ’ vulnerability were not taken into account either by the authorities before the eviction procedure was initiated or by the courts during the ensuing proceedings, an urban and social study (MOUS) was undertaken after the Court of Appeal ’ s judgment in order to determine the situation of each family and to assess the relocation possibilities that could be envisaged ( see paragraphs 33-37 above ). The Court further observes that those of the families who opted for social housing were relocated in 2008, four years after the eviction order ( see paragraph 40 above ). Therefore in the Court ’ s view, to that extent, the authorities gave sufficient consideration to the needs of the families concerned ( see, mutatis mutandis, Stenegry and Adam, cited above ). 162. The Court reaches the opposite conclusion as regards those of the applicants who sought relocation on family plots. While the Government listed in their observations the steps taken by the municipality for the development of those plots and stated that the applicants would have the possibility of being relocated there on completion, scheduled for 2010, six years after the judgment ( see paragraphs 133 - 134 above ), it can be seen from the most recent information at the Court ’ s disposal that this project has been abandoned by the municipality, which has chosen to assign the land intended for that purpose to the nomadic travellers ’ encampment area for which it is responsible under the département -level programme ( see paragraphs 45-47 above ). 163. For their part, the applicants cannot be criticised for having remained inactive ( contrast Yordanova and Others, cited above, § 131). Many of them lodged applications for social housing, under the law on the enforceable right to housing, stipulating that they wanted family plots, but their requests were rejected by the mediation board and by the Administrative Court ( see paragraph 42 above ). Moreover, those who have left Bois du Trou-Poulet have attempted to find relocation solutions which, for the most part, have proved temporary and unsatisfactory ( see paragraph 40 above ). Nor can they be criticised for failing to request or accept social housing which did not correspond to their lifestyle, as the Court recognised in the Stenegry and Adam decision ( cited above ). 164. The Court cannot overlook the following facts. Apart from the four families who have been relocated to social housing and two families who have moved to other regions, the applicants are all in highly unstable situations : both those who have remained at Bois du Trou - Poulet and those who have returned there are living under the threat of enforcement of the decisions ordering their eviction on pain of a coercive fine; the other applicants have not been able to find long-term accommodation and are living in places that are generally ill-suited and from which they can be removed at any time by the authorities ( shopping centre car park or land where the parking of caravans is prohibited, see paragraph 40 above ). 165. The Court observes in this connection that a number of domestic documents ( opinion of the CNCDH, reports by Senator Hérisson and the Court of Audit ... ) have emphasised the insufficient number of adapted housing solutions for sedentarised travellers, and this same finding led the European Committee for Social Rights to conclude, in complaint no. 51/2008 ( European Roma Rights Centre v. France ), that there had been a violation of Article 31 § 1 of the revised Charter ... 166. Having regard to the foregoing, the Court arrives at the conclusion that, in the present case, the authorities failed to give sufficient consideration to the needs of the families who applied for relocation to family plots. ( iii) Conclusion 167. The Court finds that, in respect of all the applicants, there has been a violation of Article 8 of the Convention since they did not have the benefit, in the context of the eviction proceedings, of an examination of the proportionality of the interference in accordance with the requirements of that Article. In addition, it finds that there has also been a violation of Article 8 in respect of the those of the applicants who applied for relocation to family plots, on account of the failure to give sufficient consideration to their needs. ... IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 1 85. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 1 86. Some of the applicants requested sums in respect of pecuniary damage, asserting that, when they were forced to leave Bois du Trou-Poulet, they had to abandon their chalets or caravans together with the belongings left inside. They claimed on that basis: EUR 600 (Catherine Herbrecht), EUR 2, 000 (Pierre Mouche, Rosita Ricono, Paul Mouche and Gypsy Debarre), EUR 3, 000 (Thierry Lefèvre and Sophie Clairsin, Patrick Lefèvre and Sylviane Huygues - Bessin), and EUR 5, 000 (Solange Lefèvre). 1 87. In respect of non-pecuniary damage, those of the applicants who have remained at Bois du Trou-Poulet claimed: EUR 7, 500 (Catherine Lefèvre, Sabrina Lefèvre, Steeve Lefèvre and Graziella Avisse, Sandrine Plumerez, Germain Guiton, Michelle Perioche, Mario Guiton and Stella Huet, Martine Payen, Laetitia Winterstein and Jessy Winterstein); the other applicants claimed sums ranging from EUR 15, 000 (Rosita Ricono, Solange Lefèvre, Thierry Lefèvre and Sophie Clairsin, Patrick Lefèvre and Sylviane Huygues - Bessin and Catherine Herbrecht) to EUR 20, 000 (Pierre Mouche, Paul Mouche and Gypsy Debarre). The applicants also claimed the sum of EUR 7, 500 jointly for the costs and expenses incurred before the Court, broken down as follows : EUR 5, 000 for their lawyers ’ fees ( for which the relevant invoices were produced) and EUR 2, 500 for various travelling expenses. 1 88. The Government objected that these claims were manifestly excessive and observed that the only complaints communicated by the Court were those based on Articles 8 and 14 of the Convention. They asserted that the reality of the damage claimed had not been established, nor had the causal link with the complaints in question. In particular, they argued that the link between the pecuniary losses claimed and the court decisions did not appear to be substantiated. 1 89. As to the non-pecuniary damage, the Government noted that it had been estimated globally, without any precision or attestation being forthcoming, and that it appeared disproportionate, as the municipality of Herblay had not demanded payment of the coercive fine, no eviction had been carried out and some applicants had already been relocated. In those conditions, the Government took the view that the finding of a violation would constitute appropriate redress for any damage sustained, and that any financial award could only be symbolic. Concerning the expenses, the Government asserted that as only established expenses could be taken into account, any payment to the applicants on that basis, should a violation be found, could not exceed EUR 5, 000. 1 90. The Court takes the view that, in the circumstances of the case, the question of the application of Article 41 of the Convention is not ready for decision. Consequently, it will reserve the question, bearing in mind the possibility of an agreement being reached between the respondent State and the applicants (Rule 75 § 1 of the Rules of Court). | The Court held that there had been a violation of Article 8 (right to respect for private and family life and home) of the Convention. It noted in particular that the courts, despite acknowledging the lack of urgency and of any manifestly unlawful nuisance, had not taken into account the lengthy period for which the applicants had been settled, the municipal authorities’ toleration of the situation, the right to housing, the provisions of Articles 3 and 8 of the Convention and the Court’s case-law. The Court pointed out in that connection that numerous international and Council of Europe instruments stressed the need, in cases of forced eviction of Roma or travellers, to provide the persons concerned with alternative accommodation. The national authorities had to take into account the fact that such applicants belonged to a vulnerable minority; this implied paying special consideration to their needs and their different way of life when it came to devising solutions to the unlawful occupation of land or deciding on possible alternative accommodation5. |
90 | Taking of children into care | II. RELEVANT DOMESTIC LAW 49. Article 1666 of the Civil Code ( Bürgerliches Gesetzbuch ) lays down that the guardianship courts are under an obligation to order necessary measures if a child's welfare is jeopardised ( Gefährdung des Kindeswohls ). 50. The first sub-paragraph of Article 1666a provides that measures intended to separate a child from its family are permissible only if it is not possible for the authorities to take any other measure to avoid jeopardising the child's welfare. 51. The second sub-paragraph of Article 1666a provides: “Full [parental] responsibility may only be withdrawn if other measures have proved ineffective or have to be regarded as insufficient to remove the danger.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 52. The applicants alleged that the withdrawal of their parental responsibility for their two daughters had infringed their right to respect for their family life, as guaranteed by Article 8 of the Convention, which provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 53. The Government asserted that the interference in issue was based on Articles 1666 and 1666a of the Civil Code and was necessary for the children's physical and psychological welfare. They said that, after hearing representations from the parties and seeking the opinion of two experts in psychology, the domestic courts had concluded that the applicants' interest in maintaining family life had to yield to the interest of ensuring the children's welfare, as the children's development had been found to have become so retarded that, partly as a result of a lack of cooperation between the applicants and the social services, less radical educational assistance measures had proved insufficient in the past. Indeed, the experts had reached identical conclusions, but had simply stressed different aspects of the problem, something that was not uncommon in such cases and was also explained by the fact that their reports had been prepared at different stages of the proceedings. Furthermore, it had not been possible to take Mr Riedl's report on behalf of the applicants into account, as it had not been lodged until 28 May 1998, that is to say two days after the Federal Constitutional Court had delivered its decision. In any event, that report had been prepared privately and could not be used to challenge the conclusions of the first two experts. Lastly, the Government stressed that there had not been a total severance of contact between the applicants and their children and that there was also contact between the girls' respective foster parents. In conclusion, the dispute concerning the applicants' visiting rights was now settled, as the applicants had accepted Ms Sperschneider's proposals on that subject and were in fact visiting their children in accordance with the suggested arrangements. 54. The applicants questioned the need for the interference and criticised certain aspects of the expert reports commissioned by the domestic courts. In their submission, those reports were neither reliable nor credible, as they proffered entirely different reasons as proof that the children's welfare was in jeopardy. In the first report, the expert had referred to emotional deficiencies in the relationship between the applicants and their daughters, whereas the second expert had laid the emphasis on the parents' intellectual shortcomings. They found it intolerable to be criticised for their low intellectual level, as, if such criteria were to be applied, approximately 30% of parents in Germany would have their parental responsibility for their children withdrawn. The applicants also complained that the experts had failed to examine in detail, as they were required to do by the relevant provisions of civil law, whether alternative measures could be taken, such as appointing another social worker to assist the family, that would obviate the need for parental responsibility to be withdrawn altogether. They stressed that the effects of being separated from their parents had been dramatic for the children and that the children were suffering from “parental alienation” syndrome, a condition recognised by the international scientific community. Lastly, they expressed their disapproval of the decision of the Osnabrück Youth Office to place the children in separate unidentified homes and of its insistence on doing everything possible to keep contact between them and their children to a strict minimum, without seeking to offer support to the family of origin, despite the obligation imposed on them to do so by the Law governing support for children and adolescents ( Kinder- und Jugendhilfegesetz ). They submitted that the unsatisfactory restrictions on their visiting rights were causing the children to become increasingly alienated ( Entfremdung ) from their family of origin and risked causing irreparable damage to the parent-child relationship. 55. The applicants also complained that they been denied a fair trial, as the domestic courts had relied exclusively on the findings of the District Youth Office, the Society for Family Education and the official expert witnesses, without having regard to the reports of the experts called on behalf of the applicants, Mr Riedl and Mr Giese. They relied on Article 6 § 1 of the Convention, the relevant part of which provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 56. The Court reiterates that it is the master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 223, § 44), and that it has previously held that whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8 (see, among other authorities, McMichael v. the United Kingdom, judgment of 24 February 1995, Series A no. 307-B, p. 55, § 87, and Ignaccolo-Zenide v. Romania, no. 31679/96, § 99, ECHR 2000 ‑ I). 57. In the instant case the Court considers that the complaint raised by the applicants under Article 6 is closely linked to their complaint under Article 8 and may accordingly be examined as part of the latter complaint. A. Whether there has been an interference 58. The mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life (see, among other authorities, W., B. and R. v. the United Kingdom, judgments of 8 July 1987, Series A no. 121, respectively, p. 27, § 59, pp. 71-72, § 60, and p. 117, § 64; Olsson v. Sweden (no. 1), judgment of 24 March 1988, Series A no. 130, p. 29, § 59; Eriksson v. Sweden, judgment of 22 June 1989, Series A no. 156, p. 24, § 58; Margareta and Roger Andersson v. Sweden, judgment of 25 February 1992, Series A no. 226-A, p. 25, § 72; Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, p. 19, § 50; McMichael, cited above, p. 55, § 86; Johansen v. Norway, judgment of 7 August 1996, Reports 1996-III, p. 1001-02, § 52; Bronda v. Italy, judgment of 9 June 1998, Reports 1998-IV, p. 1489, § 51; Buscemi v. Italy, no. 29569/95, § 53, ECHR 1999-VI; Gnahoré v. France, no. 40031/98, § 50, ECHR 2000-IX; and K. and T. v. Finland [GC], no. 25702/94, § 151, ECHR 2001-VII). 59. There is therefore no doubt – and the Government do not contest – that the measures concerned in the present case (the children's continued placement in foster homes and the restrictions imposed on contact between the applicants and their children) amounts to an “interference” with the applicants' rights to respect for their family life. B. Whether the interference is justified 60. An interference with the right to respect for family life entails a violation of Article 8 unless it is “in accordance with the law”, has an aim or aims that is or are legitimate under Article 8 § 2 and is “necessary in a democratic society” for the aforesaid aim or aims. The notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (see, among other authorities, Gnahoré, cited above, § 50 in fine ). 61. Although the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in an effective “respect” for family life. Thus, where the existence of a family tie has been established, the State must in principle act in a manner calculated to enable that tie to be developed and take measures that will enable parent and child to be reunited (see, among other authorities: Eriksson, cited above, pp. 26-27, § 71; Margareta and Roger Andersson, cited above, p. 30, § 91; Olsson v. Sweden (no. 2), judgment of 27 November 1992, Series A no. 250, pp. 35-36, § 90; Ignaccolo-Zenide, cited above, § 94; and Gnahoré, cited above, § 51). 62. The boundaries between the State's positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see, among other authorities, W., B. and R. v. the United Kingdom, cited above, respectively, p. 27, § 60, p. 72, § 61, and p. 117, § 65; and Gnahoré, cited above, § 52). 1. “In accordance with the law” 63. The interference in issue was indisputably based on Articles 1666 and 1666a of the Civil Code. 2. Legitimate aims 64. The Court considers that there is no doubt that the measures in issue were intended to protect “health or morals” and the “rights and freedoms” of the children. 3. “Necessary in a democratic society” 65. The Court reiterates that in order to determine whether the impugned measures were “necessary in a democratic society”, it has to consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient for the purposes of paragraph 2 of Article 8 (see, among other authorities, Olsson (no. 1), cited above, p. 32, § 68; Johansen, cited above, pp. 1003-04, § 64; Olsson (no. 2), cited above, p. 34, § 87; Bronda, cited above, p. 1491, § 59; Gnahoré, cited above, § 54; and K and T. v. Finland, cited above, § 154). It will also have regard to the obligation which the State has in principle to enable the ties between parents and their children to be preserved. 66. In so doing, the Court will have regard to the fact that perceptions as to the appropriateness of intervention by public authorities in the care of children vary from one Contracting State to another, depending on such factors as traditions relating to the role of the family and to State intervention in family affairs and the availability of resources for public measures in this particular area. However, consideration of what is in the best interest of the child is in any event of crucial importance. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned ( Olsson (no. 2), cited above, pp. 35 ‑ 36, § 90), often at the very stage when care measures are being envisaged or immediately after their implementation. It follows from these considerations that the Court's task is not to substitute itself for the domestic authorities in the exercise of their responsibilities for the regulation of the public care of children and the rights of parents whose children have been taken into care, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation (see, among other authorities, Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55; Johansen, cited above, pp. 1003-04, § 64; K. and T. v. Finland, cited above, § 154). 67. The margin of appreciation to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake, such as the importance of protecting the child in a situation in which its health or development may be seriously at risk and the objective of reuniting the family as soon as circumstances permit. When a considerable period of time has passed since the child was first placed in care, the child's interest in not undergoing further de facto changes to its family situation may prevail over the parents' interest in seeing the family reunited. Thus, the Court recognises that the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care. However, a stricter scrutiny is called for both of any further limitations, such as restrictions placed by those authorities on parental rights and access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that family relations between the parents and a young child are effectively curtailed (see Johansen, cited above, pp. 1003-04, § 64). 68. The Court notes that in the instant case, by a judgment of 27 May 1997, the Bersenbrück Guardianship Court withdrew the applicants' parental responsibility for their two daughters, Corinna and Nicola, who were born in 1991 and 1993 respectively, and ordered their placement with foster parents, notably on the ground that the applicants did not have the requisite intellectual capacity to bring up their children. The Guardianship Court also noted that the children were considerably behind in their emotional and physical development and that the applicants had failed to cooperate with social services. In a judgment of 29 January 1998 the Osnabrück Regional Court, relying on two reports by expert witnesses, the first of whom stressed the applicants' intellectual deficiencies and the second their lack of emotional support, upheld the Guardianship Court's order placing the children with foster parents. 69. The Court begins by noting that the fact that a child could be placed in a more beneficial environment for his or her upbringing will not on its own justify a compulsory measure of removal from the care of the biological parents; there must exist other circumstances pointing to the “necessity” for such an interference with the parents' right under Article 8 of the Convention to enjoy a family life with their child ( K. and T. v. Finland, cited above, § 173). 70. The Court recognises that in the instant case the authorities may have had legitimate concerns about the late development of the children noted by the various social services departments and psychologists. However, it considers that both the care order itself and, above all, the manner in which it was implemented were unsatisfactory. 71. It appears that the children benefited from an early age and, indeed, at the applicants' request, from educational support and that the situation became acrimonious as a result notably of a conflict between the applicants and a social worker, Ms Klose, who submitted a very negative report to the Osnabrück Youth Office. 72. Moreover, the opinions of the psychologists, from whom expert evidence was taken at various stages of the proceedings by the domestic courts, were contradictory, if not in their conclusions then at least as regards the reasons relied on (one psychologist referred to the parents' lack of intellectual capacity while the other referred to emotional underdevelopment that made them incapable of contributing to the development of the children's personalities). 73. Moreover, both of the other psychologists, who had been retained as expert witnesses by the German Association for the Protection of Children and the Association for the Protection of the Rights of the Child, and the family doctors urged that the children be returned to their family of origin. They emphasised in particular that the children's welfare was not in jeopardy and that the applicants were entirely fit to bring up their children, both emotionally and intellectually. They said that the children should be given additional educational support. Those conclusions could not be disregarded simply because they emanated from people who were acting on behalf of one of the parties to the proceedings (see paragraph 53 above). 74. Lastly, unlike the position in other cases of the same type that have come before the Court, there have been no allegations that the children have been neglected or ill-treated by the applicants. 75. Accordingly, although the educational-support measures taken initially subsequently proved to be inadequate, it is questionable whether the domestic administrative and judicial authorities have given sufficient consideration to additional measures of support as an alternative to what is by far the most extreme measure, namely separating the children from their parents. 76. The Court further reiterates that a care order should in principle be regarded as a temporary measure, to be discontinued as soon as circumstances permit, and that any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child ( Olsson (no. 1), cited above, pp. 36-37, § 81). The positive duty to take measures to facilitate family reunification as soon as reasonably feasible will begin to weigh on the responsible authorities with progressively increasing force as from the commencement of the period of care, subject always to its being balanced against the duty to consider the best interests of the child ( K. and T. v. Finland, cited above, § 178). 77. However, in the instant case, not only have the children been separated from their family of origin, they have also been placed in separate, unidentified, foster homes and all contact with their parents was severed for the first six months. In addition, the children themselves have at no stage been heard by the judges. 78. Furthermore, the evidence in the case file shows that the applicants were only granted visiting rights after making an application to the court, and visits were in practice systematically obstructed by the Bersenbrück Youth Office, initially being restricted to one hour a month in the presence of eight people who were not members of the family before being increased to two hours a month (with the grandparents being authorised to visit once every two months) by a decision of the Osnabrück Guardianship Court on 9 October 2000. 79. Having regard to the fact that the children were very young, severing contact in that way and imposing such restrictions on visiting rights could, in the Court's opinion, only lead to the children's increased “alienation” ( Entfremdung ) from their parents and from each other. 80. Nor can the issue be regarded as having been resolved, as the applicants have consistently contested not only their children's placement with the foster parents, but also the restrictions imposed on their visiting rights and in practice it would be unfair to criticise them for making use of the arrangements proposed by the domestic courts to at least gain an opportunity to see their children. 81. Having regard to all these considerations, the Court finds that although the reasons relied on by the domestic authorities and courts were relevant, they were insufficient to justify such a serious interference in the applicant's family life. Notwithstanding the domestic authorities' margin of appreciation, the interference was therefore not proportionate to the legitimate aims pursued. 82. Consequently, there has been a violation of Article 8 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 83. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 84. The applicants maintained that the withdrawal of their parental responsibility for their two daughters had caused them pecuniary damage, which they calculated as follows: (i) 25,700 marks (DEM) in family benefit which they no longer received owing to the fact that the children had been placed in foster homes; (ii) DEM 1,488, being the sums which the Youth Office had allegedly seized on their account as a financial contribution towards the children's needs in their new homes (however, proceedings were still pending as the applicants had contested the attachment order); (iii) DEM 18,000 for delays in the building of their house; (iv) DEM 110,448 for loss of earnings by Mr Kutzner, who had been unable to carry on working owing to the dramatic psychological and physical effects of being separated from her children; (v) DEM 35,895 for loss of earnings by Mrs Kutzner's mother, who had likewise been prevented from working as a result of the effects of the family situation on her health. 85. The applicants also alleged that they had sustained substantial non-pecuniary damage, their physical and psychological health having suffered as a result of their separation from their children, their children's separation from each other and the restrictions on their visiting rights. They left the issue of quantum to the Court's discretion. 86. The Government expressed no view on the matter. 87. The Court considered that the alleged pecuniary damage was either unsupported by evidence or had not been caused by the violation that had been found. However, it found that the applicants had undeniably sustained non-pecuniary damage as a result of being separated from their two daughters and the restrictions on their visiting rights. Having regard to the circumstances of the case and ruling on an equitable basis as required by Article 41, it awards them compensation of 15,000 euros (EUR) jointly. B. Costs and expenses 88. The applicants' claim for costs and expenses was broken down as follows: (i) DEM 8,392 for lawyers' fees before the domestic courts; (ii) DEM 9,602.20 for expert witnesses' fees; (iii) DEM 7,674.60 for the fees of the Association for the Protection of the Rights of the Child, which had also represented the applicants before the domestic courts and the Court; (iv) DEM 1,220 for the expenses incurred by the Association for the Protection of the Rights of the Child. 89. The Government did not raise any objections to the claims. 90. According to its settled case-law, the Court will award costs and expenses only in so far as these relate to the violation found and to the extent to which they have been actually and necessarily incurred and are reasonable as to quantum (see, among many other authorities, Pammel v. Germany, judgment of 1 July 1997, Reports 1997-IV, p. 1114, § 82). With regard to lawyers' fees, the Court reiterates that it does not consider itself bound by domestic scales and practices, although it may derive some assistance from them. Ruling on an equitable basis, the Court decides to award the applicants jointly the sum of EUR 8,000, from which EUR 350.63 which they have already received in legal aid must be deducted. C. Default interest 91. According to the information available to the Court, the statutory rate of interest applicable in Germany at the date of adoption of the present judgment is 7.57% per annum. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It found that, whilst the reasons given by the national authorities and courts had been relevant, they had not been sufficient to justify such a serious interference with the applicants’ family life. |
305 | Prevention of terrorism | RELEVANT DOMESTIC LAW 21. In respect of an individual who has been convicted of acts of terrorism and related offences, only the post-sentencing judge at the Paris tribunal de grande instance, the Paris Sentence Enforcement Court and the sentence - enforcement division at the Paris Court of Appeal have jurisdiction, irrespective of the convicted person ’ s place of detention or residence. In urgent cases, the post-sentencing judge with jurisdiction for terrorism cases issues orders regarding, among other areas, escorted leave without seeking the opinions of the post-sentencing judge who has territorial jurisdiction and the sentence - enforcement board. Such orders may be contested on appeal within twenty-four hours of their notification. An appeal on points of law may be lodged against orders and judgments concerning, in particular, escorted leave, within five days of notification; such an appeal does not have suspensive effect. 22. Persons sentenced to a prison term who are serving the minimum period in relation to their sentence are not entitled to unescorted leave. They may only be granted escorted leave on an exceptional basis. 23. The relevant provisions of the Code of Criminal Procedure (CPP) as in force at the material time, read as follows: Article 706-16 “The acts of terrorism established as crimes under Articles 421-1 to 421-6 of the Criminal Code, and the related offences, shall be prosecuted, investigated and tried in accordance with the rules of the present Code, subject to the provisions of the present Part. ...” Article 706-22-1 “By derogation from the provisions of Article 712-10, only the post-sentencing judge of the Paris tribunal de grande instance, the Paris Sentence Enforcement Court and the post-sentencing division of the Paris Court of Appeal shall have jurisdiction to take decisions regarding persons convicted of an offence falling within the scope of Article 706-16, irrespective of the convicted person ’ s place of detention or residence. These decisions shall be taken after obtaining the opinion of the post- sentencing judge who would have jurisdiction under Article 712-10...” Article 712-5 “Except in urgent situations, decisions on reduction of sentences, requests for leave under escort and day-release shall be taken after obtaining the opinion of the sentence - enforcement board. ...” Article 712-11 “The decisions of the post- sentencing judge and of the sentence enforcement court may be contested on an appeal by the prisoner, by the public prosecutor and by the Principal Public Prosecutor, from the point that they are notified : 1. Within twenty-four hours as regards the orders mentioned in Articles 712-5 and 712-8 ...” Article 712-12 “An appeal against the orders referred to in Articles 712-5 and 712-8 shall be brought before the president of the Post-sentencing Division of the Court of Appeal, who shall decide by means of a reasoned order in the light of the written observations of the public prosecutor and of the prisoner or his or her lawyer.” Article 712-15 “An appeal on points of law may be lodged within five days after the orders and judgments mentioned in Articles 712-12 and 712-13 have been served. Such an appeal shall not have suspensive effect.” Article 723-3 “Authorisation for leave permits a prisoner to be absent from a detention facility for a certain fixed period of time which is set off against the length of the sentence that is being served. It is intended to prepare the prisoner for professional and social reintegration, to maintain his or her family ties or to enable him or her to fulfil an obligation at which his or her presence is required.” Article 723-6 “Every prisoner may, under the conditions laid down in Article 712-5, obtain, on an exceptional basis, authorisation for escorted leave.” Article D49-79 “In urgent cases, the Paris post- sentencing judge may rule without obtaining the opinion of the post- sentencing judge who would have jurisdiction in application of Article 712 ‑ 10.” Article D142-1 “The conditions for the time-period provided for in Articles D. 143 to D. 146 shall only be applicable if the prisoner is not serving the minimum term imposed.” Article D144 “In the event of the serious illness or death of a close relative, leave may be granted for a maximum period of three days, both to prisoners who have been sentenced to a prison term not exceeding five years, and to prisoners serving a prison term of over five years, where they have served half of their sentence.” Article D145 “Leave of a maximum duration of three days may be granted, with a view to maintaining family ties or preparing them for social reintegration, to prisoners who have served half of their sentence and who have a remaining period of less than three years to serve in detention...” Article D146 “Convicted prisoners who are being held in detention centre may be granted leave as provided for in Article D. 145 where they have served a third of their sentence.” Article D425 “In application of the provisions of Article 723-3 concerning leave authorisations, and under the conditions set out in Article D. 144, prisoners may be authorised to travel to a close relative who is seriously ill or had died.” THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 24. The applicant complained about the judicial authorities ’ refusal to grant her escorted leave from prison in order to travel to the funeral home and pay her last respects to her deceased father. She relied on Article 8 of the Convention, which reads: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 25. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ arguments 26. The applicant submitted firstly that the provisions of Article 723-6 of the Code of Criminal Procedure were not sufficiently foreseeable, in that they did not enable her to predict the possible grounds for refusing her request for escorted leave. 27. She further argued that the judicial authorities ’ refusal to grant escorted leave to travel to the funeral home did not pursue a legitimate aim and was neither justified nor necessary in a democratic society. She submitted that her journey under escort to the Basque Country would not have been likely to lead to a public-order disorder disturbance, given that ETA had announced an end to the armed struggle in October 2011. Furthermore, there had also been no risk of her absconding, since she had served the greater part of her prison sentence and was entitled to request conditional release four months after her father ’ s death, that is, on 24 May 2014. In view of her illness and her father ’ s death, her physical and psychological state could not be used to substantiate a risk of absconding. 28. The applicant also challenged the Government ’ s argument that it had not been feasible in practice to organise an escort. She submitted that her family had arranged for her father ’ s cremation to be held six days after his death, so that the authorities could take the necessary measures. Indeed, she had asked only to be able to travel to the funeral home, and not the crematorium. She added that her state of health had not been an obstacle to transfers between prisons. In particular, the last inter-prison transfer, from Roanne to Rennes, had not required any specific measures although the travelling time, about six hours, was comparable to what would have been necessary to travel to the funeral home in Bayonne. 29. She added that she had not seen her father for four years on account of his health, which had prevented him from travelling to her distant place of detention, and that she had had to wait until 12 April 2014 to see her sister, mother and daughter, that is, almost three months after her father ’ s death. 30. The Government did not dispute that the judicial authorities ’ refusal to grant the applicant ’ s request for escorted leave in order to travel to her father ’ s funeral had amounted to interference in her right to respect for her family life. 31. However, they considered that this interference had been in accordance with the law. They pointed out, firstly, that, under the applicable domestic law, the applicant could not claim to be entitled to unescorted leave, since on the date she submitted her request she had been serving the minimum period attached to her sentence. They further indicated that, in accordance with the provisions of Article 723-6 of the Code of Criminal Procedure, permission to leave prison under escort was not a right and a convicted person was entitled to it only exceptionally. They added that the basis of this type of measure was essentially humanitarian and that, in consequence, it had been sufficiently foreseeable that the applicant ’ s request could be refused on public order grounds. 32. They added that the interference had pursued legitimate aims, namely the interests of public safety and the prevention of disorder or crime. 33. They alleged that the refusal to grant the applicant ’ s request had been necessary in a democratic society, had corresponded to a pressing social need, namely that of preventing the risk of absconding and of public disturbance, and lastly, that it had been proportionate to the aims pursued. They specified that the criminal profile of the applicant, who had been convicted of terrorist acts and continued to assert her membership of ETA and for whom completion of her prison term was still distant (17 June 2019), indicated a serious risk of absconding. They considered that this risk had not been mitigated by the cessation of ETA ’ s armed struggle. In their view, the risk of public disturbance was high, given the location and context of the funeral of the applicant ’ s father. It was due to take place in Bayonne, in the Basque Country, where ETA organised its activities. In addition, the applicant ’ s brother and sister, who were themselves identified as being active in the Basque movement, were due to be present. According to the Government, the high risk of public-order disturbances and of absconding implied a reinforced escort team, which it had not been physically possible to organise, given the time available and the geographical distance involved. They added that surveillance of a prisoner by an escort during authorised leave was more complicated than during transfers from one prison to another (on these latter occasions, prisoners did not exit into open public areas). 34. They considered that the domestic courts had balanced the right to respect for the applicant ’ s family life, in acknowledging the justified nature of her request in human terms at a painful time for her, against the security constraints. 35. They added that, in contrast to the situations in the cases of Lind v. Russia (no. 25664/05, 6 December 2007) and Płoski v. Poland (no. 26761/95, 12 November 2002), it had not been possible to offer the applicant an alternative measure to escorted leave. 36. They specified that the prison authorities had made every effort to maintain the applicant ’ s family ties; she had received visits from members of her family and had been able to communicate, particularly by telephone, with her father once his health had prevented him from continuing to make long journeys to the prison. They submitted a list of the persons who had visited the applicant in the prison visiting rooms between 16 November 2013 and 16 November 2014, and a calculation of the periods that the applicant had spent with family members or with her partner in a family unit. 2. The Court ’ s assessment 37. The Court reiterates that detention, like any other measure depriving a person of his liberty, entails inherent limitations on his private and family life. However, it is an essential part of a prisoner ’ s right to respect for family life that the authorities enable him or, if need be, help him, to maintain contact with his close family (see Messina v. Italy (no. 2), no. 25498/94, § 61, ECHR 2000 ‑ X, and Khoroshenko v. Russia [GC], no. 41418/04, § 106, ECHR 2015). 38. At the same time, the Court recognises that some measure of control of prisoners ’ contacts with the outside world is called for and is not of itself incompatible with the Convention (see Schemkamper v. France, no. 75833/01, § 30, 18 October 2005). In addition, the right to prison leave is not guaranteed as such by the Convention (see Marincola and Sestito v. Italy (dec.), no. 42662/98, 25 November 1999; Kanalas v. Romania, no. 20323/14, § 66, 6 December 2016; and Vonica v. Romania [committee ], no. 78344/14, § 68, 28 February 2017). Indeed, Article 8 of the Convention does not guarantee a detained person a right to leave, and the Court has held on numerous occasions that existence of a system for requesting leave is not in itself open to criticism (see, inter alia, Sannino v. Italy (dec.), no. 72639/01, 3 May 2005). 39. It is not disputed in the present case that the decision not to grant the applicant ’ s request for escorted leave to travel to the funeral home and pay her respects to her deceased father amounted to an interference in her right to respect for family life as guaranteed by Article 8 of the Convention (see Płoski v. Poland, no. 26761/95, § 32, 12 November 2002, and Kanalas, cited above, § 54, 6 December 2016). 40. Such interference is not in breach of the Convention if it is in accordance with the law, pursues one or more of the legitimate aims contemplated in paragraph 2 of Article 8 and may be regarded as a measure which is necessary in a democratic society (see Płoski, cited above, § 30). 41. The Court notes that the contested refusal to grant escorted leave was in accordance with the law, namely Article 723-6 of the Code of Criminal Procedure, and that the risks of escape and public disorder were inherent in granting temporary leave, on an exceptional basis, to a convicted prisoner, with or without an escort. Except in urgent situations, decisions on requests for leave under escort were taken after obtaining the opinion of the sentence enforcement board. The Court considers that the possible grounds for refusing a request by a prisoner, such as the applicant, were sufficiently foreseeable. 42. It further considers that the interference, the purpose of which was to prevent the risk of escape and public disorder, was intended to ensure public safety and the prevention of disorder and crime (see Kanalas, cited above, § 57). 43. It remains to be determined whether the decision in question was “necessary in a democratic society”. 44. The Court reiterates that when assessing the obligations imposed on the Contracting States by Article 8 in this area, regard must be had to the ordinary and reasonable requirements of imprisonment and to the resultant degree of discretion which the national authorities must be allowed in regulating a prisoner ’ s contact with his family (see Lavents v. Latvia, no. 58442/00, § 141, 28 November 2002). It is the duty of the State to demonstrate that the inherent restrictions on a prisoner ’ s rights and freedoms are nonetheless necessary in a democratic society and that they are based on a pressing social need (see Płoski, cited above, § 35). 45. The Court notes that the judicial authorities, at first instance and on appeal, examined the applicant ’ s request with care and found that her father ’ s death constituted an exceptional ground which could justify granting escorted leave. Furthermore, the judge in the post-sentencing division took account of the fact that the applicant had not seen her father since 2009 in finding that her request was justified on the human level. 46. It notes that the authorities nevertheless refused the applicant ’ s request, on the grounds, firstly, of her criminal profile, in that she was serving several prison terms for terrorist acts and continued to assert her membership of the organisation ETA, and, secondly, that it was impossible to organise a reinforced escort within the time available. 47. The Court is aware of the problems of a financial and logistical nature caused by escorted leaves (see Płoski, cited above, § 37, and Kubiak v. Poland, no. 2900/11, § 26, 21 April 2015). It notes that the national authorities duly examined the applicant ’ s profile, the seriousness of the crimes committed (punished by a long prison sentence), the context of the trip that would have to be organised, the factual considerations (in particular the geographical distance of almost 650 km), and concluded that the escort would be to be a particularly robust one. The Court notes that the applicant submitted her request for leave promptly, allowing the authorities a period of six days to organise an escort. However, it finds no grounds to contest the Government ’ s assessment that the time available, once final permission for escorted leave was granted, was insufficient to arrange an escort comprising officers who were specially trained in the transfer and supervision of prisoners convicted of terrorist offences and to organise the prior inspection of premises. 48. The Court notes that in the circumstances of the case there was no practicable means of acceding to the applicant ’ s request other than by granting escorted leave (see, a contrario, Kanalas, cited above, § 64, with further references). 49. It notes that the applicant had not seen her father since 2009, but that she had regular visits from members of her family and from friends, as submitted by the Government (see paragraph 36 above). 50. In consequence, the Court considers that the judicial authorities carried out a balancing exercise between the interests at stake, namely the applicant ’ s right to respect for her family life on the one hand and public safety and the prevention of disorder and crime on the other (see, a contrario, Kanalas, cited above, § 65). It therefore finds that the respondent State did not overstep the margin of appreciation afforded to it in this area. 51. Having regard to the above considerations, the Court finds that, in the circumstances of the case, the decision not to grant the applicant ’ s request for escorted leave in order to travel to the funeral home and pay her last respects to her deceased father was not disproportionate to the legitimate aims pursued. 52. There has accordingly been no violation of Article 8 of the Convention. | The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention, finding that the French State had not exceeded the margin of appreciation afforded to it in this area and that the refusal to grant the applicant’s request had not been disproportionate and had pursued legitimate aims. It noted in particular that the authorities had rejected the request on the grounds, firstly, of the applicant’s criminal profile – she was serving several prison sentences for terrorist offences and continued to assert her membership of ETA – and, secondly, because it was impossible to organise a reinforced security escort within the time available. |
892 | Private persons | II. RELEVANT DOMESTIC LAW 30. Section 7 of the Media Act, which has the title “ Interference with a person ’ s most intimate personal sphere” ( Verletzung des höchst persönlichen Lebens bereiches ), reads as follows: “ (1) If a person ’ s strictly private life is discussed or presented in the media in a manner which is apt to compromise this person in public, the person concerned may claim compensation from the owner of the media for the injury suffered. The amount of compensation shall not exceed EUR 20,000 ... (2) No compensation claim under paragraph 1 exists if 1. the publication at issue is based on a truthful report on a public session of the National Council or the Federal Council, the Federal Assembly, a regional diet or a committee of one of these general representative bodies; 2. the publication is true and has a direct connection to public life; 3. in the circumstances it could have been assumed that the person concerned had agreed to the publication; 4. it is a direct broadcast on radio or television (live programme) and the employees or contractors of the radio or television station have not neglected the principles of journalistic diligence; 5. the information has been published on a retrievable website and the owner of the media or its employees or contractors have not neglected the principles of journalistic diligence. ” 31. Section 7a of the Media Act which has the title “ Protection against divulging a person ’ s identity in special cases ” ( Schutz vor Bekanntgabe der Identität in besonderen Fällen ), reads as follows: “(1) Where publication is made, through any medium, of a name, image or other particulars which are likely to lead to the disclosure to a larger not directly informed circle of people of the identity of a person who 1. has been the victim of an offence punishable by the courts, or 2. is suspected of having committed, or has been convicted of, a punishable offence, and where legitimate interests of that person are thereby injured and there is no predominant public interest in the publication of such details on account of the person ’ s position in society, of some other connection with public life, or of other reasons, the victim shall have a claim against the owner of the medium (publisher) for damages for the injury suffered. The award of damages shall not exceed 20,000 euros; additionally, section 6(1), second sentence, shall apply. (2) Legitimate interests of the victim shall in any event be injured if the publication 1. in the case of subsection (1)1, is such as to give rise to an interference with the victim ’ s strictly private life or to his or her exposure, 2. in the case of subsection (1)2, relates to a juvenile or merely to a lesser indictable offence ( Vergehen ) or may disproportionately prejudice the advancement of the person concerned. (3) No compensation claim under paragraph 1 exists if 1. the publication at issue is based on a truthful report on a public session of the National Council or the Federal Council, the Federal Assembly, a regional diet or a committee of one of these general representative bodies; 2. the publication of the information on the person has been decided officially, in particular for the purposes of criminal justice or public security; 3. the person concerned has agreed to the publication or if the publication is based on information given by that person to the media; 4. it is a direct broadcast on radio or television (live programme) and the employees or contractors of the radio or television station have not neglected the principles of journalistic diligence; 5. the information has been published on a retrievable website and the owner of the media or its employees or contractors have not neglected the principles of journalistic diligence.” 32. Section 6(1) second sentence of the Media Act, to which reference has been made above, reads as follows: “The amount of compensation shall be fixed according to the extent of the publication, its impact and, in particular, the type of media and how broadly it is disseminated; the compensation must not endanger the economic existence of the media owner.” 33. Section 8a of the Media Act which has the title “ Separate compensation proceedings” ( Selbständiges Entschädigungs verfahren ), insofar as relevant, reads as follows: “ In a judgment by which compensation under Section 6, 7, 7b or 7c has been awarded on the basis of a separate compensation request, the court must also order the publication of the judgment if the person concerned so requests so ... ” THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 34. The applicant company complained under Article 10 of the Convention that the judgments of the Austrian courts violated its right to freedom of expression. Article 10 reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 35. The Government contested that argument. A. Admissibility 36. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 37. The Court notes that it is common ground between the parties that the Vienna Regional Court ’ s judgment of 19 October 2004, upheld by the Court of Appeal, which awarded damages to Christian, constituted an interference with the applicant company ’ s right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention. 38. An interference contravenes Article 10 of the Convention unless it is “prescribed by law”, pursues one or more of the legitimate aims referred to in paragraph 2, and is “necessary in a democratic society” for achieving such an aim or aims. 39. The Court considers, and this was acknowledged by the parties, that the interference was prescribed by law, namely by sections 7 and 7a of the Media Act. The Court further finds, and this was likewise not disputed between the parties, that the interference served a legitimate aim, namely “the protection of the reputation or rights of others” within the meaning of Article 10 § 2 of the Convention. 40. The parties ’ argument concentrated on the question whether the interference had been “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention. 1. The parties ’ submissions 41. The applicant company maintained that the interference with its right to impart information had not been necessary in a democratic society. There was no doubt that the event on which the applicant company had reported had involved questions which were a subject of public importance, namely the conduct of the courts and authorities when enforcing the Family Court ’ s decision to hand Christian over to his mother, and contributed to the public discussion which had been triggered by the questionable conduct of the enforcement officers. 42. In reporting on the matter the press could not, as suggested by the Austrian courts, have done so in a merely neutral and sober way. It was also a corporate necessity to attract the attention of the public by incorporating entertaining components, as otherwise it would be practically impossible to reach the public. Otherwise the press would loose its audience and would no longer be able to fulfil its protection and warning role. In fulfilling this role the press was entitled to resort to exaggeration and provocation in their reporting and this right was not restricted to textual reporting but also extended to images illustrating the articles. It was true that the applicant company had published one picture of Christian which could be considered as showing his suffering and despair while clinging to his brother, but that picture had been published only for the purpose of rousing the public from apathy. The essential question was therefore whether the importance of the events on which the applicant company was reporting justified the publication of pictures which also showed the pain and suffering of the persons concerned by the events. For the above reasons the answer must be in the affirmative. 43. The applicant company also argued that the amount of compensation granted to Christian had been excessive, because the impugned articles had not been published on the front page of the newspaper but merely towards the back, and the main reason for the granting of compensation was the publication of one single picture showing the suffering and despair of Christian, while the other pictures were merely neutral images of him. 44. The Government, while acknowledging the essential role played by the press as a “public watchdog”, asserted that in the present case the interference with the applicant company ’ s freedom of expression had been necessary within the meaning of Article 10 § 2 of the Convention. They argued in particular that the domestic courts had had to weigh the applicant company ’ s interest in imparting information on an issue of public interest against the right to protection of the most intimate sphere of life of the person on whom it reported, which was equally protected by the Convention, namely the right to respect for his or her identity, protected by Article 8 as part of a person ’ s private life. The necessity to carry out such a weighing of interests was laid down in section 7 of the Media Act. 45. The Austrian courts had found that that the articles published by the applicant company constituted an intrusion into the strictly private life of Christian, a minor. In its judgment of 19 October 2004 the Regional Court had explained in detail that even though it was clearly permissible to publish an article on the events surrounding the handing over of Christian to his mother, and the conduct of the courts and authorities in this respect, this did not mean that in doing so the applicant company had the right to reveal the identity of Christian and publish pictures showing him in a state of despair. The disclosure of the identity of Christian was irrelevant for understanding the details of the events of which he had been the victim and this specific detail was also unnecessary in raising public awareness concerning the conduct of the authorities. In such cases the State had a positive obligation to ensure effective protection against breaches of the personal integrity of children, as a particularly vulnerable group. 46. Lastly the Government argued that the amount of compensation awarded to Christian, namely EUR 9 ,000 was not disproportionate, given that this figure was well below the maximum amount of compensation possible, and taking into account the wide dissemination of the information by the applicant company and the influence it had had on public opinion. 2. The Court ’ s assessment (a) General principles 47. According to the Court ’ s well-established case-law, the test of necessity in a democratic society requires the Court to determine whether the interference complained of corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued, and whether the reasons given by the national authorities to justify it are relevant and sufficient (see The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 62, Series A no. 30). In assessing whether such a need exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not, however, unlimited but goes hand in hand with a European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10 (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 58, ECHR 1999 ‑ III). 48. An important factor for the Court ’ s determination is the essential function of the press in a democratic society. Although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others or the proper administration of justice, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see Bladet Tromsø and Stensaas, cited above, § 59, and as a recent authority, Flinkkilä and Others v. Finland, no. 25576/04, § 73, 6 April 2010 ). By reason of the “duties and responsibilities” inherent in the exercise of freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith and on an accurate factual basis and providing reliable and precise information in accordance with the ethics of journalism (see Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999 ‑ I, and, as a recent authority, Eerikäinen and Others v. Finland, no. 3514/02, § 60, 10 February 2009). 49. Whilst it is true that the methods of objective and balanced reporting may vary considerably and that it is therefore not for this Court, nor for the national courts, to substitute its own views for those of the press as to what technique of reporting should be adopted ( Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298), editorial discretion is not unbounded. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (Observer and Guardian v. the United Kingdom, 26 November 1991, § 59, Series A no. 216; Thorgeir Thorgeirson v. Iceland, 25 June 1992, § 63, Series A no. 239; Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999-III; and, more recently, Gutiérrez Suárez v. Spain, no. 16023/07, § 25, 1 June 2010). 50. The Court has always stressed the contribution made by photographs or articles in the press to a debate of general interest (see Standard Verlags GmbH v. Austria (no. 2), no. 21277/05 § 46, 4 June 2009, with further references). However, the publication of photographs and articles the sole purpose of which is to satisfy the curiosity of a particular readership regarding the details of a public figure ’ s private life cannot be deemed to contribute to any debate of general interest to society despite the person being known to the public. In such conditions freedom of expression calls for a narrower interpretation (see MGN Limited v. the United Kingdom, no. 39401/04, § 143, 18 January 2011, and Von Hannover v. Germany, no. 59320/00, § 65-66, ECHR 2004-VI ). Moreover, although freedom of expression also extends to the publication of photographs, this is an area in which the protection of the rights and reputation of others takes on particular importance. Photographs appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion into their private life or even of persecution ( see Von Hannover v. Germany, cited above, at § 59, and Hachette Filipacchi Associés v. France, no. 71111/01, § 42, 14 June 2007 ). 51. The subject matter at issue in this case relates, on the one hand, to the right of the press under Article 10 of the Convention to inform the public on matters of public concern regarding ongoing court proceedings and on the manner in which decisions by the courts are enforced and, on the other, to the State ’ s positive obligations under Article 8 of the Convention to protect the privacy of persons, in particular minors, to whom such proceedings relate. When verifying whether the authorities struck a fair balance between two protected values guaranteed by the Convention which may come into conflict with each other in this type of case – freedom of expression protected by Article 10 and the right to respect for private life enshrined in Article 8 – the Court must balance the public interest in the publication of the information and the need to protect private life ( see Hachette Filipacchi Associés v. France, no. 71111/01, § 43, ECHR 2007-VII ). The balancing of individual interests which may well be contradictory is a difficult matter and Contracting States must have a broad margin of appreciation in this respect since the national authorities are in principle better placed than this Court to assess whether or not there is a “pressing social need” capable of justifying an interference with one of the rights guaranteed by the Convention ( see MGN Limited, cited above, § 142, and Egeland and Hanseid v. Norway, cited above, § 55). (b) Application of these principles to the present case 52. In the present case the applicant company published in its newspaper Kurier, between 29 January 2004 and 1 3 February 2004, three articles about a dispute between parents over custody of their child, Christian. In the custody proceedings the competent courts did not accept to transfer custody of Christian to the father, who had refused to comply with that decision. Various attempts at enforcement were unsuccessful because Christian and his father had gone into hiding, and in January 2004 the competent court ordered that Christian be brought before the court by force. On 26 January 2004 court officers went to the house of Christian ’ s father and tried to seize the child, who cried and resisted. These scenes were again the subject of wide media coverage, notably by the applicant company ’ s newspaper, because they were observed and photographed by several journalists, who had been informed and had hurried to the spot. The applicant company ’ s newspaper reported on this case and the articles published disclosed Christian ’ s identity and details of his family life and of the custody dispute. They were accompanied by photographs of Christian that had not been rendered anonymous and, in particular, one which showed him in a state of pain and despair on the occasion of the intervention of the court officers on 26 January 2004. 53. Thereupon, Christian brought proceedings under the Media Act against the applicant company, claiming compensation in respect of reporting constituting an intrusion into his strictly private life ( section 7 of the Media Act) and reporting on the victim of a crime in a manner rendering that person recognisable by the public (Section 7a of the Media Act). On 19 October 2004 the Vienna Regional Criminal Court found against the applicant company, ordering it to pay compensation and to publish the judgment in its newspaper. On appeal the Court of Appeal found on 21 September 2005 that the reporting at issue had been in breach of the obligation not to interfere with a person ’ s strictly private life, but rejected the other ground for compensation, namely, reporting on the victim of a crime in an identifiable manner, and awarded compensation at EUR 3,000 per Article, altogether EUR 9,000. The Regional Court and the Court of Appeal considered that the reporting at issue had breached Christian ’ s right to respect for his strictly private life, and found that there had existed no predominant public interest in the revealing of his identity and giving details of his family life, his health and his emotional state, or the publishing of photographs taken at the time of the unsuccessful attempt to enforce the court ’ s order to hand him over to his mother showing him in a state of pain and despair. 54. In the Court ’ s view the reasons given by the Regional Court and upheld by the Court of Appeal were undoubtedly “relevant” reasons for the purposes of the necessity test to be applied under Article 10 § 2. It will next examine whether they were also “sufficient”. 55. The Court agrees with the domestic courts that the case concerned a balancing of the applicant company ’ s right to freedom of expression under Article 10 against Christian ’ s right to protection of his strictly private life. In such cases one factor the Court has taken into account is the position of the person concerned by the publication: whether or not he or she was a “public figure” or had otherwise “entered the public scene” (see, for instance, Flinkkilä and Others, cited above, § 83, and Eerikäinen and Others, cited above, § 66). Another important factor is whether the articles or photographs in the press contributed to a debate of general interest (see Flinkkilä and Others, cited above, § 76, and Eerikäinen, cited above, § 66). 56. In the present case, Christian is not a public figure, nor does the Court consider that he has entered the public scene by becoming the victim of a custody dispute between his parents which attracted considerable public attention. 57. The Court further considers that the articles at issue dealt with a matter of public concern, namely the appropriate enforcement of custody decisions and whether and to what extent force may or should be used in this context. Such a matter could, and in the present case did, give rise to a public debate. However, given that neither Christian himself nor his parents were public figures or had previously entered the public sphere, it cannot be considered that the disclosure of his identity was essential for understanding the particulars of the case (see “Wirtschafts-Trend” Zeitschriften-Verlags gesellschaft mbH (no. 2) v. Austria (dec.), no. 6274 6 /00, 14 November 2002). In this connection, the Court notes that it was acceptable for the applicant company to report on all relevant details concerning the case of Christian, in particular as regards the problematic attempt to enforce the decision taken in the custody proceedings by the court officers on 26 January 2004, but not to reveal the identity of Christian while publishing the most intimate details about him, or publish a picture of him from which he could be recognised. 58. The applicant company also argued that it had been necessary to publish the picture of Christian showing his suffering and despair while clinging to his brother for the purpose of rousing the public from apathy and attracting their attention, as otherwise the press would not have been able to fulfil its protection and warning role. However, the Court has found in the past that the publication of photographs and articles the sole purpose of which is to satisfy the curiosity of a particular readership regarding the details of a public figure ’ s private life cannot be deemed to contribute to any debate of general interest to society despite the person being known to the public. In such conditions freedom of expression calls for a narrower interpretation (see MGN Limited, cited above, § 143, with further references). The Court considers that such considerations also apply to persons, like Christian, who are not public figures. 59. On the other hand, there is no doubt that the preservation of the most intimate sphere of life of a juvenile who had become the victim of a custody dispute and had not himself stepped into the public sphere deserved particular protection on account of his or her vulnerable position. 60. Lastly the Court considers that the interference with the applicant company ’ s right to impart information was proportionate. The applicant company was not subject to a fine imposed in criminal proceedings but was ordered to pay compensation for the injury caused to the person with whose right to respect for his strictly private life it had interfered. The amount of compensation, EUR 9,000, relates to three published articles. The amounts appear reasonable taking into account the length of the articles, their contents, which, on account of the details given and the photographs published, constituted a serious interference given the vulnerable situation of Christian as the victim of the custody dispute and the particularly wide circulation of the applicant company ’ s media. 61. In sum, the Court finds that in awarding compensation for the interference with Christian ’ s strictly private life by the applicant company, the respondent State acted within its margin of appreciation in assessing the need to protect his privacy. It is satisfied that the restriction on the applicant company ’ s right to freedom of expression resulting from the judgments of the Regional Court and the Court of Appeal was supported by reasons that were relevant and sufficient, and was proportionate to the legitimate aims pursed. 62. There has accordingly been no violation of Article 10 of the Convention. | The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention. It was true that the articles had dealt with a matter of public concern. However, given that neither the child nor his parents were public figures or had previously entered the public sphere, it had not been essential for understanding the case to disclose his identity, reveal most intimate details of his life or publish a picture from which he could be recognised. The Court was not convinced by the applicants’ arguments that it had been necessary to publish a picture showing the child’s suffering in order to draw public attention to the issue or to ensure the credibility of the story. Lastly, the interference with the applicants’ rights had been proportionate to the aims pursued. They had not been fined in criminal proceedings but had simply been ordered to pay compensation to the child for the injury caused due to interference with his right to respect for his strictly private life. |
71 | Filiation | II. RELEVANT DOMESTIC LAW 33. At the relevant time, the articles of the Civil Code, Chapter 16 of the Laws of Malta, pertinent to this case, read as follows: Article 70A (Natural parentage) “(1) Whenever the clarification of natural parentage of a child is required - ( a ) the father may require the mother and the child; ( b ) the mother may require the father and the child; ( c ) the child may require both parents; and ( d ) the alleged natural father may require the husband, the mother and the son, to consent to a genetic paternity test and to acquiesce in the taking of a genetic sample appropriate for the test, which sample must be taken according to the then current provisions of the law. (2) On the application of a person entitled to clarify, the Civil Court (Family Section) must substitute consent that has not been given and order acquiescence in the taking of a sample. (3) The Civil Court (Family Section) shall dismiss the application if and as long as the clarification of the natural parentage would result in a considerable adverse effect on the best interests of the minor child, which would be unreasonable for the child, even taking into account the concerns of the person entitled to clarify. (4) A person, who has consented to a genetic paternity test and has given a genetic sample, may require the person entitled to clarify who has had a paternity test made, to permit inspection of the genetic paternity test report or to provide a copy. The Civil Court (Family Section) shall decide disputes arising from the claim under sub ‑ article (1). (5) The applications mentioned in this article shall be decided by virtue of decrees, which decrees may be appealed according to the procedure contemplated in article 229(2) of the Code of Organization and Civil Procedure.” Article 86A “(1) The mother of a child conceived or born out of wedlock who is not acknowledged by the father, and that same child, may at all times make a judicial demand to establish the paternity of the child and for the court to order the registration of such paternity in the relative acts of civil status. (2) The judicial demand referred to in sub ‑ article (1) may also be sought by the heirs or the descendants of the child if the same circumstances as those which are referred to in article 85 will exist.” Article 100 “A judicial demand for a declarator of paternity or maternity may also be contested by any party interested.” Article 100A “In causes to which this Sub-Title makes reference, the court may, without prejudice to any evidence that may be produced by the parties according to law, require the parties to submit to examinations as referred to in article 70A, and in the same manner and in the same circumstances.” 34. According to Article 229 (2) of the Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta, an appeal from a decree in causes of natural parentage may be entered before the definitive judgment subject to the procedure laid down in sub-article (4) and (5) of the same Article 229 which read as follows: “(4) In the case of any decree under sub-articles (2) and (3), provided that any application for an appeal has not been filed, the aggrieved party may file an application within six days from the date on which the decree is read out in open court, requested [ recte requesting] the court which delivered the decree to reconsider its decision. The application is [to] contain full and detailed reasons in support of the request and is to be served on the other party who shall have the right to file an answer thereto within six days from the date of service. (5) The court shall decide, as expeditiously as possible by decree to be read out in open court, the application for special leave to appeal in terms of sub-article (3) or the application to reconsider its decision in terms of sub-article (4), expounding fully therein the reasons for the decision.” 35. Article 562 of the Code of Organisation and Civil Procedure reads as follows: “Saving any other provision of the law, the burden of proving a fact shall, in all cases, rest on the party alleging it.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 36. The applicant complained that Maltese law made it mandatory to provide a genetic sample in paternity proceedings, and that the imposition of such an order on him, contrary to his will, resulted in a breach of Article 8 of the Convention, which provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well ‑ being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 37. The Government contested that argument. A. Admissibility 1. As to the locus standi of Ms Margaret Mifsud 38. Following the introduction of the application, Mr Mifsud passed away and his widow Ms Mifsud expressed the wish to pursue the application. 39. In its case ‑ law, the Court has differentiated between applications where the direct victim has died after the application was lodged with the Court and those applications where he or she had already died before the lodging of the application. Where the applicant has died after the application was lodged, the Court has accepted that the next ‑ of ‑ kin or heir may in principle pursue the application, provided that he or she has sufficient interest in the case (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 97, ECHR 2014). 40. Having regard to the circumstances of the present case, the Court accepts that Ms Mifsud, the wife and heir of the direct victim (who had lodged the application before his death), has a legitimate interest in pursuing the application in the late applicant’s stead. It will therefore continue dealing with the case at her request. For practical reasons, it will, however, continue to refer to Mr Mifsud as the applicant in the present judgment. 2. Other matters 41. The Government noted that in his submissions the applicant was repeatedly relying on Article 6 of the Convention, a matter which had not been raised before the domestic courts and which was therefore inadmissible for non ‑ exhaustion. Moreover, such complaint having only been raised in the applicant’s submissions of 6 April 2018, after the six-month time-limit, it was also out of time. 42. The Court notes that the application communicated to the Government concerned solely a complaint under Article 8 of the Convention, and therefore the scope of the case does not include an examination of Article 6 of the Convention per se, without prejudice, however, to any arguments which may be relevant to the assessment of the impugned measure under Article 8 of the Convention. 43. The Court notes that the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicant 44. In his application the applicant submitted that Article 100A of the Civil Code, which referred to Article 70A of the same code, breached his rights under Article 8. He considered that the legislation failed to meet the quality-of-law requirement, given that it breached the equality-of-arms principle by making it compulsory for a party to filiation proceedings to adduce evidence against himself, despite the opposing party having been unable to fulfil the burden of proof necessary in civil proceedings. This, coupled with the fact that it was mandatory and therefore not subject to any assessment, or discretion, by the domestic courts, rendered it contrary to the rule of law. Moreover, the law was devoid of legal certainty as it was unforeseeable as to its consequences in the event of a person refusing to submit to such test. He questioned whether such a party could be coerced through the use of physical force to provide the sample in question. 45. In his observations the applicant emphasised that the admission of such a piece of evidence in the proceedings had hindered his defence and been a determining consideration in the outcome of his case. He argued that once that evidence had been adduced in the case ‑ file he could no longer offer his defence reiterating his original arguments without risking prosecution for the offence of perjury in civil proceedings. Thus, the very fact that the order issued to him to submit to the genetic test had been made out at the initial stage, before the applicant had been authorised to adduce his evidence, was contrary to the object of Article 8, as well as to that of Article 6 of the Convention. The applicant emphasised the early stage at which the test had been ordered – even before the applicant’s version of events had been heard – when he had not yet produced any submissions or evidence and no cross ‑ examinations had yet taken place, and argued that the factual circumstances referred to by the Constitutional Court had been “one ‑ dimensional” and prejudicial to his right to defend himself in the civil proceedings. This had been made worse by the ambiguous wording of Article 100A of the Civil Code, which stated “without prejudice to any evidence that may be produced by the parties”, which would result in a situation where the applicant could not defend himself at all. He considered that had the test been ordered after he had been allowed to submit evidence, then his defence rights would have been respected. Similarly, the judge would have been able to take a decision as to the necessity of the test on the basis of the evidence submitted by both parties. In his view, he had been coerced into adducing evidence against himself, contrary to the principle against self ‑ incrimination, and had thereafter been denied his right to defend himself, while X had been freed from her legal burden to adduce evidence in support of her civil claim, which was a cardinal rule of evidence. On the basis of the above, the applicant considered that the measure had not been in accordance with the law, since the implication arising from the application of the law itself were in themselves problematic in terms of natural justice. 46. The applicant further submitted that a reading of Article 100A at face value appeared to indicate that the court had had discretion to order the test. However, when read in combination with Article 70A(2) of the Civil Code this became mandatory. Relying on Malone v. the United Kingdom (2 August 1984, Series A no. 82) and Silver and Others v. the United Kingdom (25 March 1983, Series A no. 61), he noted that a law which conferred discretion had to indicate the scope of that discretion, which in the applicant’s view implied that a law which did not cater for the exercise of discretion, should not be deemed to be in accordance with the law. 47. Furthermore, he considered that such legislation did not pursue any legitimate aim within the meaning of Article 8 § 2. The applicant took the view that the mere fact that a law was enacted in pursuance of a State’s positive obligations did not mean that any resulting measure was automatically proportionate. Indeed, the domestic courts had not specified any pressing social need. In the light of the fact that the law provided for a burden of proof in civil cases (consisting of a balance of probabilities), in the applicant’s view, ordering the test could not have been considered “necessary” as the same result could be achieved by less restrictive means. The State’s positive obligation could have been fulfilled by allowing the court to invite a party to a filiation suit to submit to a genetic test, or allowing for inferences to be drawn from a refusal to undergo the test, which would have allowed the applicant to present his defence nonetheless. 48. The applicant also complained about the findings of the constitutional jurisdictions, specifically their failure to look in detail into the proportionality of the measure. On the contrary they had made a superficial analysis and failed to conduct a thorough and correct assessment of the relationship between the conflicting interests at stake. In the present case, those interests had concerned each party’s individual human rights, and both deserved protection. It was even more necessary for the constitutional jurisdictions to carry out such an assessment given that the law did not allow for a judge in filiation proceedings to consider the interests at play before ordering such tests, unless the person in question was a minor. He noted that while relying on the Court’s case ‑ law, the domestic court had failed to draw a distinction between the facts of the cases already decided by the ECtHR and those in the present case, which were intrinsically different. He also noted that the case of Canonne v. France ((dec.), no. 22037/13, 2 June 2015) as relied on by the Government was not comparable to the present case, given that in that case, Mr Canonne had refused to undergo the test. (b) The Government 49. The Government acknowledged that the mandatory taking of the genetic sample in the context of the paternity suit could constitute an interference with the applicant’s Article 8 rights, but argued that it was justified. However, they also argued that in the present case there had been no interference, given that the applicant had not shown that he had been adversely affected. They noted that while the DNA testing had established his paternity, the applicant had continued to reside abroad with his family. 50. The Government submitted that the measure at issue had had a basis in domestic law, namely Article 100A of the Civil Code, which also allowed parties to produce additional evidence. The provision was clear and left no room for interpretation as to whether the court could order such a test. Article 70A was even clearer, in that it set out a step-by step-procedure to be followed and also provided for an appeal. 51. The Government noted that the Court had established in a number of cases that the right to identity (which includes the right to know one’s parents) was an integral notion of private life and that the State must have an appropriate and adequate mechanism in order to establish the parentage with certainty. They referred to Mikulić v. Croatia (no. 53176/99, ECHR 2002 ‑ I), Jäggi v. Switzerland (no. 58757/00, ECHR 2006 ‑ X) and Pascaud v. France (no. 19535/08, § 62, 16 June 2011). Thus, according to the Government, the measure had been necessary to establish X’s paternity, as X had a vital interest protected by the Convention in receiving the information enabling her to uncover the truth about an important aspect of her identity. Under Maltese law, the Civil Code had compelled the father to submit to the DNA test in order to secure X’s right. Nevertheless, the domestic courts were vested with discretionary powers in deciding whether to order the DNA test, in the child’s best interests. This allowed them to examine each case on its own merits and to strike a fair balance between the competing rights. They referred to Canonne (cited above). 52. The Government further submitted that the applicant had had the opportunity to produce evidence and rebut the allegation. They also noted that in its judgment of 21 June 2007 the domestic court had examined all the evidence before it, including the genetic test, but also the fact that it had transpired from the witness testimony that the applicant and his family had met X and her family, and that the applicant had helped X and her family to settle both in Malta and in the United Kingdom. The applicant had been aware that X was his daughter, and there had been numerous occasions when he had resided with her and her family. Thus, the domestic court had relied on a plurality of elements, as had also been the case in Canonne (cited above). 53. The Government further noted that the applicant could have challenged the DNA test by producing an ex parte report to do so. Indeed the fact that the test had been ordered at the evidence-gathering stage did not mean that the applicant could not have produced any evidence in support of his pleas. On the contrary, had the DNA test been negative, it would have been the best means for the applicant of challenging the allegation of his paternity. The mere fact that the result did not corroborate his arguments did not mean that there had been a violation of his rights. Moreover, the applicant could have appealed against the decree ordering the test result as provided by Article 70A(5) of the Civil Code. However, he had failed to so. 2. The Court’s assessment (a) General principles 54. The Court has previously held that the taking of cellular material and its retention and the determination and retention of DNA profiles extracted from cellular samples constitute an interference with the right to respect for private life within the meaning of Article 8 § 1 of the Convention (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §§ 71 to 77, ECHR 2008). 55. Such interference will be in breach of Article 8 of the Convention unless it can be justified under its paragraph 2 as being “in accordance with the law”, as pursuing one or more of the legitimate aims listed therein, and as being “necessary in a democratic society” in order to achieve the aim or aims concerned (see Peruzzo and Martens v. Germany (dec.), no. 7841/08 and 1 other, § 34, 4 June 2013). 56. While the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in effective “respect” for private or family life. These positive obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see Mikulić, cited above, § 57 and S.H. and Others v. Austria [GC], no. 57813/00, § 87, ECHR 2011). Further, respect for private life requires that everyone should be able to establish details of their identity as individual human beings and that an individual’s entitlement to such information is of importance because of its formative implications for his or her personality. This includes obtaining the information needed to uncover the truth concerning important aspects of one’s personal identity, such as the identity of one’s parents (see, for example, Călin and Others v. Romania, nos. 25057/11 and 2 others, § 83, 19 July 2016, with further references). 57. The Court has already found violations of Article 8 in cases where the domestic system failed to provide for measures to compel a putative parent to comply with a court order to undergo genetic testing (see A.M.M. v. Romania, no. 2151/10, § 61, 14 February 2012 and Mikulić, cited above, § 61) or governing the consequences of such non ‑ compliance (ibid.). Nevertheless, while the Court opined that putative sons and daughters have a vital interest, protected by the Convention, in receiving the information necessary to uncover the truth about an important aspect of their personal identity, it also considered that it must be borne in mind that the protection of third persons (like the applicant in the present case) may preclude their being compelled to make themselves available for medical testing of any kind, including DNA testing (see Mikulić, cited above, § 64 and Pascaud, cited above, § 62). 58. However, in Pascaud (cited above, §§ 63 ‑ 69), the Court held that the protection of the interest of the putative father does not on its own suffice to deprive the applicant (the putative son) of his Article 8 rights. In that case, the fact that the domestic courts had annulled the results of a DNA test (on the basis of a procedural error – namely the lack of explicit consent of the donor of the sample), thus giving precedence to the right of the putative father as opposed to the right of the son to know his origins, gave rise to a breach of Article 8. 59. In Tsvetelin Petkov v. Bulgaria (no. 2641/06, § 55, 15 July 2014), where the applicant had been declared the father of the child in proceedings in which he had not participated, and thus in the absence of a DNA test, the Court considered that a DNA test was the scientific method available at the time for accurately determining paternity of a child and its probative value substantially outweighed any other evidence presented by the parties to prove or disprove the biological paternity. Consequently, had the applicant been given an opportunity personally to participate in the court proceedings, he would have been able definitively to settle the matter of paternity by undergoing a DNA test. That would have been in the interest of all parties concerned. Thus, his absence from the proceedings was in breach of his Article 8 rights. This shows that, even in paternity cases, the Court must assess whether the decision ‑ making process, seen as a whole, was fair and provided the applicant with the requisite protection of his interests safeguarded by Article 8 (see Ahrens v. Germany, no. 45071/09, § 40, 22 March 2012; Kautzor v. Germany, no. 23338/09, § 80, 22 March 2012 and Tsvetelin Petkov, cited above, § 49 et seq.). 60. In the context of the use of time-limits for the institution of paternity proceedings, the Court has acknowledged that a putative father’s interest in being protected from claims concerning facts that go back many years cannot be denied, and in addition to that conflict of interest between putative father and child, other interests may come into play, such as those of third parties, essentially the putative father’s family, and the general interest of legal certainty (see Laakso v. Finland, no. 7361/05, § 46, 15 January 2013; see also Konstantinidis v. Greece, no. 58809/09, § 52, 3 April 2014). However, in the context of DNA testing in paternity proceedings, the Court has held that an individual’s interest in discovering his parentage does not disappear with age, quite the reverse (see Pascaud, cited above, § 65, and Jäggi, cited above, § 40). (b) Application to the present case 61. Turning to the circumstances of the present case, the Court considers that the order to undergo the DNA test, and the actual testing despite the applicant’s objections, constitute interference with the applicant’s private life (contrast Cakicisoy and Others v. Cyprus (dec.), no. 6523/12, § 51, 23 September 2014 – where the Court found that there was no interference given that the applicants consented voluntarily to give the samples). 62. As to whether the measure was lawful, the Court reiterates that according to the Court’s established case ‑ law, the expression “in accordance with the law” requires that the impugned measure should have some basis in domestic law, and also refers to the quality of the law in question, requiring it to be accessible to the person concerned and foreseeable as to its effects (see Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V). 63. The applicant argued that the measure was not in accordance with a law of sufficient quality (see paragraph 44 above), because (i) it breached the equality-of-arms principle by making it compulsory for a party to filiation proceedings to adduce evidence against himself, despite the opposing party having been unable to fulfil the burden of proof necessary in civil proceedings, (ii) it was mandatory and therefore not subject to any assessment or discretion by the domestic courts, and (iii) it was unforeseeable as to its consequences where a person refused to submit to the test in question. 64. The Court notes that it is not disputed that the interference was ordered pursuant to Article 100A of the Civil Code. In the Court’s view, the remaining questions related to the measure’s lawfulness, such as the consequences of the measure for the proceedings, the automatic nature of the rule and the alleged unforeseeability in certain cases, are closely linked to the issue of proportionality and fall to be examined as an aspect thereof, under paragraph 2 of Article 8 (see, mutatis mutandis, Maskhadova and Others v. Russia, no. 18071/05, § 216, 6 June 2013; T.P. and K.M. v. the United Kingdom, [GC], no. 28945/95, § 72, ECHR 2001-V, and Chapman v. the United Kingdom [GC], no. 27238/95, § 92, ECHR 2001-I). Without prejudice to those considerations, the Court is satisfied that the impugned measure was “in accordance with the law” within the meaning of Article 8 of the Convention. 65. The Court further considers that the interference pursued a “legitimate aim” – namely the protection of the rights and freedoms of others, in the instant case X’s rights and freedoms. As held by the Constitutional Court in the present case, according to the Court’s case ‑ law, respect for private life requires that everyone should be able to establish details of one’s identity as an individual human being and that an individual’s entitlement to such information is of importance because of its formative implications for his or her personality. This includes obtaining the information needed to uncover the truth concerning important aspects of one’s personal identity, such as the identity of one’s parents (see, for example, Călin and Others, cited above, § 83). Thus, by providing for such testing, the State was attempting to fulfil its positive obligations towards X 66. Nevertheless, the Court must examine whether the required balance was reached in the light of the applicant’s Article 8 rights. 67. The Court would note at the outset, as regards the applicant’s criticism of the law, that in cases arising from an individual petition its task is usually not to review the relevant legislation or a particular practice in the abstract. Instead, it must confine itself as far as possible, without losing sight of the general context, to examining the issues raised by the case before it. Here, therefore, the Court’s task is not to review, in abstracto, the compatibility with the Convention of the law at issue, but to determine, in concreto, the effect of the interference on the applicant’s right to private life (see Maskhadova and Others, cited above, § 227 and Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, §§ 69-70, 20 October 2011). 68. In the present case, the applicant complained that the law failed to respect the equality-of-arms principle, both because of the timing of the order and on account of the weight accorded to such evidence. 69. The Court cannot agree that, as claimed by the applicant, the order was made at a stage when he had not yet been authorised to submit evidence. The Court notes that the Director of the Public Registry made his request to the court to order the relevant test on 11 February 2013. This was followed by the same request by X on 13 May 2013, after she had submitted all her evidence. At that stage the applicant had already filed his submissions in reply and put forward his defence – there was no procedural impediment on his putting forward his own affidavit, or any other relevant evidence. Nor was this a case where he had asked to submit evidence and been refused. On 22 May 2013 he objected to the test and some days later Y was cross ‑ examined. It follows that both parties had had the opportunity to submit their evidence on equal grounds before the Civil Court (Family Section) until that point in the procedure. Moreover, in the present case, the Civil Court (Family Section) refrained from issuing the order at that stage, precisely in view of the applicant’s arguments and his request to refer the matter to the constitutional jurisdictions – which request it upheld. Indeed, it was only after fully-fledged proceedings before the constitutional jurisdictions, at two instances, that the Civil Court (Family Section) ordered the test (on 18 October 2015), and as argued by the Government (see paragraph 53 above) and as appears from the facts (see paragraph 29 above), at that stage the applicant could still adduce other evidence or challenge the outcome of the test. 70. The applicant also complained about the weight given to such evidence and its “self-incriminatory” nature. Firstly, the Court reiterates that a DNA test is the scientific method available (at the time – in the early 2000s – and still today) for accurately determining paternity of a child, and its probative value substantially outweighs any other evidence presented by parties to prove or disprove biological paternity (see Tsvetelin Petkov, cited above, § 55). The Court considers that this in itself does not undermine the rights of the parties to the proceedings; what is of importance is that they are given an opportunity personally to participate in the court proceedings (see, by implication, Tsvetelin Petkov, cited above, § 55). In the present case the applicant had had the opportunity to be personally present, as well as to submit evidence and cross ‑ examine witnesses, although it appeared that he preferred to be represented at the hearings by the lawyer of his choice (contrast, Tsvetelin Petkov, § 12, where the applicant had not participated in the proceedings and was not aware of the judicial pronouncement and the decision not to appeal against it was taken by a lawyer appointed ex-officio ). Thus, in the present case, it cannot be said that the applicant had not been involved in the decision ‑ making process, seen as a whole, to a degree sufficient to provide him with the requisite protection of his interests. 71. Secondly, the Court observes that, in the criminal sphere Article 8 of the Convention does not as such prohibit recourse to a medical procedure in defiance of the will of a suspect, or in defiance of the will of a witness, in order to obtain evidence (see, respectively, Jalloh v. Germany [GC], no. 54810/00, § 70, ECHR 2006 ‑ IX and Caruana v. Malta, (dec.), no. 41079/16, 15 May 2018). What is of paramount importance is that the measure is in accordance with the relevant Convention requirements (ibid.). Thus, such methods, including in the civil sphere, are not in themselves contrary to the rule of law and natural justice. The Court notes that in such an assessment the legitimate aim is of particular importance and that in the present case, the impugned action was aimed at fulfilling the State’s positive obligations arising under Article 8 of the Convention vis-à-vis X. 72. The applicant further argued that the order to submit to the test was mandatory, and that the law did not provide for what consequences would arise in the event that a person refused to submit to the test. 73. Primarily, the Court reiterates that it is for the national authorities, notably the courts, to interpret and apply domestic law. It is not its function to interpret domestic law, nor to express a view on the appropriateness of the methods chosen by the legislature of a respondent State to regulate a given field. Its task is confined to determining whether the methods adopted and the effects they entail are in conformity with the Convention ( Leyla Şahin v. Turkey [GC], no. 44774/98, § 94, ECHR 2005 ‑ XI and Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 184, 8 November 2016). The Court notes that under Article 100A the court “may” order such tests. However, when read in connection with Article 70A, it could appear that such courts have no discretion as to whether or not to order the test, save in the case of minors. Indeed, the Constitutional Court, in the present case, admitted that in certain cases an issue may arise as to the compatibility of such an imposed measure with the Convention. It is therefore true that on paper the measure appears to be mandatory; however, the Court is not convinced that in practice a court would order such a test without regard to any other consideration, such as, for example, that a prima facie case was made out. Similarly, the Court cannot ignore that once an order is made, the individual concerned may appeal against such an order. Admittedly, the scope of such an appeal has not been debated before this Court, and thus begs the question as to whether a court hearing such an appeal would be competent to perform a balancing exercise, which would provide a relevant procedural safeguard in circumstances such as those of the present case. Nevertheless, while noting that the law may require fine ‑ tuning, the Court will confine itself to its application in the present case. 74. As mentioned previously, in the instant case, the Civil Court (Family Section) refrained from ordering the test when it had been requested to so. Instead it held a hearing to examine the applicant’s objections in this respect. After hearing submissions, it considered that the applicant’s concerns were neither frivolous nor vexatious and referred the applicant’s concerns to the constitutional jurisdictions, which, at two instances, proceeded with an assessment of the interests at stake. They found that the interests of X in determining her paternity outweighed those of the applicant, in the circumstances of the present case (see paragraphs 24 and 25 above). Moreover, the Court finds nothing arbitrary in those decisions, which were taken in the light of this Court’s case ‑ law. Indeed, it was only after fully-fledged constitutional proceedings – undertaken at the applicant’s request – that the test was ordered. This was an avenue open to the applicant (since under Maltese law an individual can also complain of breaches of the Convention which are about to occur), and of which he availed himself in full knowledge of his procedural rights and available safeguards at the domestic level. Thus, while the procedure might be cumbersome (for both the parties and the judicial system) and certainly prolonged the outcome of the civil case, it cannot be said that it did not serve the purpose of examining the interests at stake and determining whether ordering the test would have been in breach of the applicant’s Article 8 rights. It follows that the order to undergo the test in the present case was not made on the basis of its mandatory nature. 75. It follows that, in the circumstances of the present case, beyond the parties’ submissions during the civil proceedings, the Civil Court (Family Section) ordering such measure had also had the benefit of two judgments by the constitutional jurisdictions, which balanced the interests of both the party subject to the measure and that of X, who had requested it. The Court consequently finds that the decision ‑ making process, taken as a whole, was fair and provided the applicant with the requisite protection of his interests safeguarded by Article 8. In line with its above-mentioned case ‑ law, the Court is also satisfied that the measure was necessary in a democratic society in order to protects X’s rights. 76. Lastly, the applicant claimed that the consequences of a refusal to submit to the test were not foreseeable. The Court notes, however, that the applicant submitted to the test a few days after it was ordered. The applicant has not claimed that the sample had been taken in a manner contrary to the relevant procedure (see, a contrario, Yuriy Volkov v. Ukraine, no. 45872/06, § 87, 19 December 2013) or, in particular by using excessive use of force. In view of the fact that the applicant complied with the order, it cannot be said that he was the victim of any unforeseeable consequences which did not apply to his case. 77. In conclusion, the Court finds that, in the present case, by ordering the applicant to undergo a DNA test, after having carried out the requisite balancing exercise of the interests at stake, in judicial proceedings in which the applicant participated through counsel of his own choosing and in which his defence rights were respected on a par with those of his adversary, the domestic courts struck a fair balance between the interests of X to have paternity established and that of the applicant not to undergo the DNA tests. 78. Accordingly, there has been no violation of Article 8. | The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention, finding that the domestic courts had fairly balanced the applicant’s rights and those of the woman who was trying to establish that he was her father. In particular, the courts had examined the applicant’s objections to taking the test in a first-instance civil court and at two levels of constitutional jurisdiction, eventually finding against him and ordering the procedure to take place. |
229 | The definition of bis | RELEVANT LEGAL FRAMEWORK AND PRACTICE Provisions of the Criminal Code 19. Under Article 1 of the Criminal Code, a penalty ( Strafe ) or a measure ( Massnahme ) may only be imposed for an act which the law expressly defines as an offence. Penalties comprise prison sentences and fines (see Articles 34 et seq. of the Criminal Code) whereas measures notably comprise institutional therapeutic treatment (see Articles 59 et seq. of the Criminal Code) and preventive detention (see Articles 64 et seq. of the Criminal Code). 20. The relevant provision on preventive detention of the former Criminal Code of 21 December 1937, as in force at the time of the applicant’s offences and conviction and until 31 December 2006, was worded as follows: Article 43 (Measures concerning offenders with mental disorders) “1. Where the mental state of an offender who, by reason of that state, has committed an act punishable by imprisonment under this Code requires medical treatment or special care intended to remove or reduce the risk that the offender might commit other such punishable acts, the court may order that he be sent to a hospital or an asylum. It may order outpatient treatment if the offender does not represent a danger to others. If, on account of his mental state, the offender poses a severe threat to public safety and such a measure is necessary to prevent a danger to others, the court shall order his preventive detention. The detention shall take place in an appropriate institution. The court shall deliver its judgment on the basis of an expert opinion concerning the offender’s physical and mental condition, and the necessity of preventive detention, treatment or care. 2. If the court orders (...) preventive detention, it suspends the execution of a term of imprisonment imposed. ... 4. The competent authority decides to lift the measure if the ground for ordering it ceased to exist. ... 5. The court decides (...) whether and in how far penalties which were suspended at the moment of discharge from an institution (...) shall still be executed. ... The duration of a deprivation of liberty by the execution of the measure in an institution is to be deducted from the length of a term of imprisonment which had been suspended when the measure had been ordered. ...” 21. On 1 January 2007 an amended version of the Criminal Code entered into force. The relevant provisions on preventive detention provide as follows: Article 64 (Preventive detention: requirements and execution) “1. The court shall order preventive detention if the offender has committed premeditated murder, intentional homicide, serious assault, rape, robbery, hostage-taking, arson, endangering life or any other offence carrying a maximum custodial sentence of at least five years by which he has caused or intended to cause serious harm to the physical, psychological or sexual integrity of another, and if: (a) on account of the offender’s personality traits, the circumstances of the offence and his personal history, there is serious cause to fear that he might commit further similar offences; or (b) on account of a serious chronic or recurrent mental disorder linked to the offence, there is serious cause to fear that the offender might commit further similar offences and a measure under Article 59 appears to have no prospect of success. ... 2. The execution of a term of imprisonment precedes preventive detention. ...” 22. Article 64a § 1 of the amended Criminal Code provides that the offender is to be released from preventive detention and probation is to be granted once it can be expected that he or she will not commit further offences warranting preventive detention on release. Under Article 64b § 1 (a) of the Criminal Code, the competent authority examines, either on request or ex officio, at least once per year, and for the first time after two years, if and when the offender can be released from preventive detention under Article 64a § 1. 23. Furthermore, Article 65 was newly introduced into the Criminal Code on 1 January 2007 and provides: Article 65 (Amendment of the sanction) “1. If, before or during the execution of a custodial sentence or of preventive detention within the meaning of Article 64 § 1, an offender fulfils the requirements for an institutional therapeutic treatment, the court may order such a measure subsequently. The court with jurisdiction shall be the one that imposed the sentence or ordered the preventive detention. The execution of the remainder of the sentence shall be suspended. 2. If, during the execution of a custodial sentence, new facts or evidence come to light to the effect that the offender satisfies the requirements for preventive detention and that such requirements were already satisfied at the time of the conviction but could not have been known to the court, the court may order preventive detention subsequently. Jurisdiction and procedure shall be determined by the rules on reopening of proceedings.” 24. Section 2 of the transitional provisions of the 13 December 2002 amendment to the Criminal Code, which entered into force on 1 January 2007, in so far as relevant, provides as follows: “2. Imposition and execution of measures (1) The provisions of the new law on measures (Articles 56-65) and on their execution (...) shall also apply to the perpetrators of acts committed or tried before those provisions come into force. However: (a) The subsequent ordering of preventive detention under Article 65 § 2 shall be permitted only if such detention would also have been possible on the basis of Article 42 or Article 43 § 1, second sub-paragraph, of the former law; ...” Provisions of the Code of Criminal Procedure 25. The Swiss Code of Criminal Procedure of 5 October 2007 replaced the cantonal Codes of Criminal Procedure on 1 January 2011. The relevant provision of the Swiss Code governing the admissibility of, and grounds for, a request to reopen proceedings provides: Article 410 “Anyone who is adversely affected by a legally binding final judgment, ... may request that the proceedings be reopened if: (a) new facts which had existed at the time of the decision, or new evidence have come to light which may lead to an acquittal, a considerably reduced or more severe penalty for the convicted person or the conviction of an acquitted person; ...” 26. The relevant provision of the Canton of Zurich’s Code of Criminal Procedure, on the reopening of proceedings to the detriment of an acquitted or convicted person, as in force until 31 December 2010, provided as follows: Article 443 “The proceedings are reopened to the detriment of a person who was acquitted or convicted by a final decision: (1) if, by an offence ..., for instance corruption or false testimony, the previous criminal proceedings had been influenced to the accused’s advantage; (2) if the acquitted person made a credible confession in or outside court or if other facts or evidence were discovered which alone would be sufficient for the accused’s conviction.” 27. According to the Zurich Supreme Court, under Article 443 § 2 of the Canton of Zurich’s Code of Criminal Procedure the reopening of proceedings to the detriment of an accused owing to new facts or evidence, having regard to the wording of that provision, was only possible in respect of an acquitted person, not in respect of a convicted person (see judgment of 14 October 1986, Blätter für Zürcherische Rechtsprechung [ZR] 86/1987, pp. 20-23, and judgment of 14 August 2000, ZR 100/2001, pp. 22-25). THE LAW ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 28. The applicant complained that his subsequent preventive detention violated his right to liberty as provided in Article 5 § 1 of the Convention, which, in so far as relevant, reads as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; ... (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; ...” Admissibility 29. The Court, having regard to its case-law, notes that, contrary to the Government’s submission, this complaint is not manifestly ill-founded. Nor is it inadmissible on any of the other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions 30. The applicant argued that his subsequent preventive detention had not complied with Article 5 § 1. In particular, it had not been covered by sub-paragraph (a) of that provision for lack of a causal link between his initial conviction and his detention. His subsequent detention had been ordered in 2013 by the Zurich District Court, more than 20 years after the Jury Court’s judgment in 1993/1995 and some three years after he had served his full sentence imposed in that judgment and thus after a considerable lapse of time. There had not been any new facts regarding his dangerousness which could create a link between his initial conviction and his subsequent detention. 31. The Government argued that the order for the applicant’s subsequent preventive detention had complied with Article 5 § 1. The order constituted a correction of the initial judgment of the Jury Court to the applicant’s detriment under Article 65 § 2 of the Criminal Code. As an order for the applicant’s preventive detention would already have been possible at the time of the applicant’s conviction, there remained a sufficient causal connection between his conviction in 1993/1995 and his subsequent detention ordered in 2013, for the purposes of sub-paragraph (a) of Article 5 § 1. Furthermore, the applicant suffered from a mental disorder, for the purposes of sub-paragraph (e) of Article 5 § 1, as confirmed by two psychiatric experts, namely P. in May 2009 and R. in June 2013 (see paragraphs 8 and 10 above). The Court’s assessment (a) Relevant principles (i) Article 5 § 1 (a) 32. The Court has held in its case-law that the word “conviction” for the purposes of Article 5 § 1 (a), having regard to the French text (“condamnation”), has to be understood as signifying both a finding of guilt after it has been established in accordance with the law that there has been an offence, and the imposition of a penalty or other measure involving the deprivation of liberty (see Del Río Prada v. Spain [GC], no. 42750/09, § 123, ECHR 2013, and Ruslan Yakovenko v. Ukraine, no. 5425/11, § 49, ECHR 2015). 33. Furthermore, the word “after” in sub-paragraph (a) does not simply mean that the detention must follow the “conviction” in point of time: in addition, the “detention” must result from, “follow and depend upon” or occur “by virtue of” the “conviction”. In short, there must be a sufficient causal connection between the two ( M. v. Germany, no. 19359/04, § 88, ECHR 2009, and Del Río Prada, cited above, § 124, with further references). 34. In cases of preventive detention which had been ordered subsequently under German law, the Court has clarified that it is only the judgment of a sentencing court finding a person guilty of an offence which meets the requirements of a “conviction” for the purposes of the said provision. By contrast, a judgment ordering a person’s preventive detention subsequently in relation to a previous offence which that person had already been sentenced for does not satisfy the requirement of a “conviction” for the purposes of Article 5 § 1 (a) as it no longer involves a finding that the person is guilty of a (new) offence. Therefore, if in the sentencing court’s judgment, no order for the preventive detention of the offender was made, that judgment did not cover any preventive detention ordered subsequently and there was thus no sufficient causal connection between the applicant’s “conviction”, for the purposes of Article 5 § 1 (a), and his subsequent preventive detention (compare, inter alia, Haidn v. Germany, no. 6587/04, §§ 84-88, 13 January 2011; B v. Germany, no. 61272/09, §§ 72-76, 19 April 2012; S. v. Germany, no. 3300/10, §§ 85-90, 28 June 2012; and Ilnseher v. Germany [GC], nos. 10211/12 and 27505/14, § 144, 4 December 2018). 35. In Kadusic v. Switzerland (no. 43977/13, 9 January 2018), which concerned a subsequent order of an institutional therapeutic measure under Swiss law, the Court was in principle prepared to accept that the order for an institutional measure amounted to a correction of the original judgment following the discovery of relevant new circumstances and that the fact that the measure was ordered in the context of proceedings for the review of a penalty imposed in a previous judgment may constitute a causal link between the initial conviction and the measure in issue, as required by the relevant case-law of the Court concerning sub-paragraph (a) of Article 5 § 1 ( ibid., § 50). However, in the circumstances of that case, the Court found that the detention which followed the (new) judgment in the review proceedings lacked a sufficient causal connection with the initial conviction for being incompatible with its aims. The Court considered that the measure in question, which had been imposed a considerable period after the applicant’s initial conviction, had not been based on a sufficiently recent expert report and that the applicant had been detained in an institution unsuited to his mental disorders ( ibid., §§ 53-60). (ii) Article 5 § 1 (e) 36. As regards the deprivation of liberty of persons suffering from mental disorders, an individual cannot be deprived of his liberty as being of “unsound mind” unless the following three minimum conditions are satisfied: firstly, he must reliably be shown to be of unsound mind, that is, a true mental disorder must be established before a competent authority on the basis of objective medical expertise; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of continued confinement depends upon the persistence of such a disorder (see, among many other authorities, Ilnseher, cited above, § 127; Rooman v. Belgium [GC], no. 18052/11, § 192, 31 January 2019; and Denis and Irvine v. Belgium [GC], nos. 62819/17 and 63921/17, § 135, 1 June 2021). 37. The “lawfulness” of detention further requires that that there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. In principle, the “detention” of a person as a mental-health patient will be “lawful” for the purposes of Article 5 § 1 (e) only if it takes place in a hospital, clinic or other appropriate institution authorised for that purpose (see Ilnseher, cited above, § 134; Rooman, cited above, §§ 190 and 193; and Stanev v. Bulgaria [GC], no. 36760/06, § 147, ECHR 2012). Furthermore, the Court has had occasion to state that this rule applies even where the illness or condition is not curable or where the person concerned is not amenable to treatment (see Rooman, cited above, § 190). 38. The Court would further recall in that context that a lack of appropriate medical care for persons in custody is even capable of engaging a State’s responsibility under Article 3, notably in the case of detainees with mental disorders who are more vulnerable than ordinary detainees (compare Rooman, cited above, §§ 145-146, with further references). (b) Application of the principles to the present case 39. The Court is called upon to determine, first, whether, in the light of the above principles, the applicant’s subsequent preventive detention at issue was justified under sub-paragraph (a) of Article 5 § 1, as the Government had argued in line with the findings of the Federal Court, as detention “after conviction”. It observes at the outset that only the judgment of the Zurich Jury Court of 1993/1995, as confirmed on appeal, in which it had been established that the applicant was guilty, in particular, of having committed two capital offences, and was sentenced to twenty years’ imprisonment, could provide a basis of the applicant’s preventive detention for the purposes of Article 5 § 1 (a). By contrast, the order made by the Zurich District Court on 15 August 2013, and confirmed on appeal, for the applicant’s subsequent detention, did not itself constitute a “conviction” as required under Article 5 § 1 (a) as it did not involve the establishment of a (new) offence and a finding of guilt thereof. 40. The Court further notes that the sentencing court’s judgment of 1993/1995 and the judgment ordering the applicant’s subsequent preventive detention in 2013 are linked as a result of the application of the rules on the reopening of proceedings (see Article 65 § 2 of the Criminal Code, at paragraph 23 above). According to the Federal Court, the application of these rules led to the order of subsequent preventive detention becoming part of the initial judgment of the sentencing court (see paragraph 16 above). 41. In determining whether, in these circumstances, there had been a sufficient causal connection between the applicant’s “conviction” by the Zurich Jury Court in 1993/1995 and his subsequent preventive detention, the Court recalls that it had been prepared to accept in the case of Kadusic (concerning an order for an institutional measure) that the fact that a measure was ordered in the context of proceedings for the review of a penalty imposed in a previous judgment may constitute a causal link between the initial conviction and the measure in question (see paragraph 37 above). 42. The Court reiterates that the Convention must be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions (see Mihalache v. Romania [GC], no. 54012/10, § 92, 8 July 2019, with further references). It notes that the Convention system accepts that the finality of a criminal court’s judgment can be set aside and the judgment be amended to the convicted person’s detriment in accordance with the national law of a Convention State in exceptional cases, notably if there is evidence of new or newly discovered facts which could affect the outcome of the case (compare Article 4 § 2 of Protocol No. 7 to the Convention). However, where a State relies on such a procedure in order to create a causal link between an initial, final conviction of a person in a judgment which did not impose the deprivation of liberty in question and the subsequent imposition of a new, additional deprivation of liberty, the Court can only accept the existence of such a causal link where the initial criminal proceedings are truly “reopened” following the discovery of new facts or evidence which are so significant as to potentially affect the “outcome of the case”. A “reopening” usually means that the initial judgment of the criminal court is annulled and the criminal charge is determined anew in a fresh decision (compare Nikitin v. Russia, no. 50178/99, §§ 45-46, ECHR 2004 ‑ VIII, and Xheraj v. Albania, no. 37959/02, § 73, 29 July 2008). 43. The Court observes that in the present case, the commission by the applicant of the capital offences he had been found guilty of in 1993/1995 has not been re-assessed or re-established in the reopened proceedings at issue. Nor has the term of 20 years’ imprisonment imposed in 1993/1995 –and which the applicant has fully served – been re-examined. In line with the requirements of Article 65 § 2 of the Criminal Code, the domestic courts only examined whether the requirements for an additional preventive detention of the applicant were met and had already been met at the time of his conviction without this having been known to the sentencing court. 44. The Court considers that in these circumstances, no fresh determination of a criminal charge in a new decision is made in the reopened proceedings at issue. The proceedings de facto amount to the imposition of an additional sanction aimed at protecting society for an offence which the applicant has previously been convicted of, without there being new elements affecting the nature of the offence or the extent of the applicant’s guilt (compare also the facts at issue in the Court’s Grand Chamber judgment in Ilnseher, cited above, § 144). 45. In these circumstances, the preventive detention was incompatible with the aims of the applicant’s initial conviction. The Court therefore cannot accept that the reopening procedure in question created a causal link between the initial conviction and the subsequent preventive detention. As the applicant’s “conviction” in 1993/1995 did not comprise a preventive detention order, there was consequently no causal link between that conviction and the applicant’s subsequent preventive detention, for the purposes of Article 5 § 1 (a) and his detention was thus not justified under that provision. 46. As to whether the applicant’s subsequent preventive detention could be justified under Article 5 § 1 (e), the Court agrees with the Government that the applicant was a person “of unsound mind” for the purposes of that provision. It notes, in particular, that in the proceedings at issue, the domestic courts established that the applicant suffered from a serious personality disorder and psychopathy and that, owing to that condition, there was a very high risk that he would commit further serious violent offences if released (see paragraph 10 above). However, preventive detention is usually executed in a similar manner as a term of imprisonment (compare paragraph 12 above) and the applicant has indeed been detained in an ordinary prison. Therefore, the applicant has not been detained in an institution suitable for the detention of mental health patients. The Court recalls that the placement of a person detained as a mental health patient in an appropriate institution for such patients is required even if the condition of the person concerned proved not to be amenable to treatment (see paragraph 37 above). The applicant’s detention was thus not “lawful” for the purposes of Article 5 § 1 (e). 47. The Court further takes the view – and this is uncontested by the parties – that none of the other sub-paragraphs of Article 5 § 1 can serve to justify the applicant’s detention at issue. 48. There has accordingly been a violation of Article 5 § 1 of the Convention. ALLEGED VIOLATION OF ARTICLE 7 § 1 OF THE CONVENTION 49. The applicant complained that the order for his subsequent preventive detention had breached the prohibition on retrospective punishment laid down in Article 7 § 1 of the Convention, which reads as follows: “1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.” Admissibility 50. The Court, having regard to its case-law, notes that, contrary to the Government’s submission, this complaint is not manifestly ill-founded. Nor is it inadmissible on any of the other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions 51. The applicant argued that the order for his subsequent preventive detention, a penalty, breached the prohibition on retrospective punishment under Article 7 § 1. At the time of the Jury Court’s judgment against him, it had not yet been possible to order preventive detention retrospectively. Under the clear wording of Article 443 of the Canton of Zurich’s Code of Criminal Procedure, as interpreted by the then alone competent Zurich Supreme Court (see paragraph 27 above), a revision of a judgment to the detriment of the accused owing to new facts or evidence was only possible against an acquitted person, not against a convicted person as himself. Therefore, the order for his subsequent detention constituted an additional, and heavier penalty as the penalty he risked incurring at the time of his conviction. 52. The Government submitted that the order for the applicant’s subsequent preventive detention had not breached Article 7 § 1. As the Federal Court had confirmed, that measure was a “penalty” for the purposes of Article 7 § 1 as it was very similar to a penalty and was executed in a similar manner. However, no heavier penalty had been imposed on the applicant than the one applicable at the time of his offence. Under Article 443 § 2 of the Canton of Zurich’s Code of Criminal Procedure, the Jury Court’s judgment could already be revised to the applicant’s detriment at the time of his conviction in 1993/1995, as the Federal Court had found in its first interpretation of this provision in the judgment in the applicant’s case, in line with part of the doctrine. Article 65 § 2 of the Criminal Code equally authorised a revision to the applicant’s detriment. The conditions for the applicant’s preventive detention had been met both under the law in force at the time of the applicant’s conviction (Article 43 § 1, sub ‑ paragraph 2, of the Criminal Code) and under the current Article 65 § 2 of the Criminal Code. The Court’s assessment (a) Relevant principles 53. As for the autonomous concept of “penalty” in Article 7 § 1, the Court refers to the principles summarised, inter alia, in M. v. Germany (cited above, § 120); Del Río Prada (cited above, §§ 81-82); and Ilnseher (cited above, § 203). 54. The Court has pointed out that when speaking of “law” (« droit» ) Article 7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises statutory law as well as case-law and implies qualitative requirements, notably those of accessibility and foreseeability (see Del Río Prada, cited above, § 91, and Vasiliauskas v. Lithuania [GC], no. 35343/05, § 154, ECHR 2015). Those qualitative requirements must be satisfied as regards both the definition of an offence and the penalty the offence carries (see Del Río Prada, cited above, § 91, and Jidic v. Romania, no. 45776/16, § 79, 18 February 2020). 55. As for the imposition of a “heavier” penalty “than the one that was applicable at the time the criminal offence was committed”, the Court found notably in the case of K. v. Germany (no. 61827/09, 7 June 2012) in respect of retrospective, or subsequent, preventive detention under German law that it amounted to such a “heavier” sanction imposed with retrospective effect. It found that at the time of that applicant’s offences, it had not been possible to place the applicant in preventive detention by a retrospective order, made after his conviction by the sentencing court – which, in any event, had not ordered his preventive detention – had become final. The provision on which that applicant’s subsequent preventive detention had been based had only been inserted into the Criminal Code after the applicant’s offences (see ibid., §§ 84-86). 56. In the case of Kadusic (cited above), a case concerning a subsequent order of an institutional therapeutic measure following the reopening of proceedings under Swiss law on the basis of Article 65 of the Criminal Code, which entered into force after the commission of the applicant’s offences, the Court concluded that there had been no retrospective imposition of a heavier penalty. The Court observed that that applicant had not provided any convincing reasons to cast doubt on the Government’s assertion that by ordering an institutional therapeutic measure following the reopening, the domestic courts had not imposed a heavier penalty than the one that would already have been applicable at the time of the criminal courts’ decisions, when Article 43 § 1, sub-paragraph 2, of the Criminal Code, would have permitted the applicant’s preventive detention. Nor had the applicant maintained that a review of the original decision would not have been possible under the former legislation, which at the time was formed by cantonal law ( ibid., §§ 71-76). (b) Application of the principles to the present case 57. The Court agrees that the applicant’s preventive detention, given notably its imposition by the criminal courts by reference to a conviction for a criminal offence, its characterisation as being similar to a penalty under domestic law (see paragraphs 12 and 19 above) and the fact that it entails deprivation of liberty of indefinite duration executed in prison, in which the applicant does not appear to undergo any therapy (see paragraph 18 above), is to be classified as a “penalty” for the purposes of Article 7 § 1. 58. In determining whether the applicant’s subsequent preventive detention at issue constituted a “heavier” penalty “than the one that was applicable at the time the criminal offence was committed”, the Court observes at the outset that at the time of the applicant’s offences, it had not been possible to place him in preventive detention by a retrospective order, made after his conviction by the sentencing court in 1993/1995 – which, in any event, had not ordered his preventive detention – had become final. Article 65 § 2 read in conjunction with Article 64 § 1 (b) of the Criminal Code, on which the applicant’s subsequent preventive detention had been based, had only been inserted into the Criminal Code on 1 January 2007, after the applicant’s offences committed notably in 1983 and 1990. The Court notes in addition that, at the time of the applicant’s offences, preventive detention ordered in a sentencing court’s judgment was executed prior to a term of imprisonment ordered in the same judgment (Article 43 § 2 of the former Criminal Code, see paragraph 20 above). Once preventive detention was terminated as the reasons for such detention no longer prevailed (Article 43 § 4 of the said Code), the execution of the additional term of imprisonment was either equally ended or the duration of preventive detention was at least deducted from the term of imprisonment which was still to be served (Article 43 § 5 of the said Code). In contrast, under the new, amended version of the Criminal Code (Article 64 § 2, see paragraph 21 above), a term of imprisonment was executed prior to a preventive detention order made in the same judgment and the person concerned was thus liable to be detained for a longer period of time. 59. These findings must lead the Court to conclude that a “heavier” penalty was imposed on the applicant retrospectively. 60. Consequently, the subsequent order for the applicant’s preventive detention amounted to a retrospective imposition of a heavier penalty. There has accordingly been a violation of Article 7 § 1 of the Convention. ALLEGED VIOLATION OF ARTICLE 4 of PROTOCOL No. 7 TO THE CONVENTION 61. The applicant complained that the order for his subsequent preventive detention also violated Article 4 of Protocol No. 7 to the Convention, which enshrines the ne bis in idem principle and which, in so far as relevant, reads as follows: “1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. 2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. ...” Admissibility 62. The Court, having regard to its case-law, notes that, contrary to the Government’s submission, this complaint is not manifestly ill-founded. Nor is it inadmissible on any of the other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions 63. The applicant submitted that the order for his subsequent preventive detention had breached his right under Article 4 § 1 of Protocol No. 7 not to be punished twice for an offence for which he had already been finally convicted. The requirements of paragraph 2 of that provision had not been met. There had not been any new facts. At the moment of his conviction, the Jury Court had already been aware of his dangerousness, but had refrained from ordering his preventive detention only because of the practice of its execution at the time. A change in this practice was not, however, a new fact authorising a reopening of the case. Likewise, the findings of expert P. did not constitute new facts for the purposes of Article 4 § 2 of Protocol No. 7. 64. In the Government’s submission, Article 4 of Protocol No. 7 had been complied with. The case against the applicant had been reopened in accordance with paragraph 2 of that provision owing to new facts. The assessment of the applicant’s health and dangerousness in expert P.’s psychiatric report had been based on new scientific knowledge which had not yet existed at the time of the Jury Court’s judgment. The sentencing Jury Court had neither been aware, nor could it have been aware, of the exact nature of the applicant’s mental disorder, a dissocial personality disorder. Furthermore, it had not known, and could not have known, that the applicant was particularly dangerous not as a result of an excessive consumption of alcohol, as expert G. heard by the Jury Court had found, and which he might refrain from, but as a result of a permanent personality disorder. The Court’s assessment (a) Relevant principles 65. Article 4 § 2 of Protocol No. 7 sets a limit on the application of the principle of legal certainty in criminal matters. As the Court has stated on many occasions, the requirements of legal certainty are not absolute, and in criminal cases, they must be assessed in the light of Article 4 § 2 of Protocol No. 7, which expressly permits Contracting States to reopen a case where new facts emerge, or where a fundamental defect is detected in the proceedings (see Mihalache, cited above, § 129). 66. Article 4 of Protocol No. 7 draws a clear distinction between a second prosecution or trial, which is prohibited by the first paragraph of that Article, and the resumption of a trial in exceptional circumstances, which is provided for in its second paragraph. Article 4 § 2 of Protocol No. 7 expressly envisages the possibility that an individual may have to accept prosecution on the same charges, in accordance with domestic law, subject to the following strict conditions: the decision to reopen the case must be justified by the emergence of new or newly discovered facts or the discovery of a fundamental defect in the previous proceedings which could affect the outcome of the case. Those conditions are alternative and not cumulative (ibid., §§ 128 and 130, 8 July 2019, with further references). 67. The Court has accepted that there has been a “reopening”, or resumption of the initial trial in exceptional circumstances, which is provided for in Article 4 § 2 of Prot. No. 7, as opposed to a “second trial”, which is prohibited by Article 4 § 1 of that Protocol, where the procedure in question led to the initial judgment of the criminal court being annulled and the criminal charge being determined anew in a fresh decision (compare Nikitin, cited above, §§ 45-46, and Xheraj, cited above, § 73). 68. According to the Court’s case-law, circumstances relating to the case which exist during the trial, but remain hidden from the judge, and become known only after the trial, are “newly discovered”. Circumstances which concern the case but arise only after the trial are “new”. Moreover, the term “new or newly discovered facts” includes new evidence relating to previously existing facts (ibid., § 131). 69. Lastly, in all cases, the grounds justifying the reopening of proceedings must, according to Article 4 § 2 of Protocol No. 7 in fine, be such as to “affect the outcome of the case” either in favour of the person or to his or her detriment (ibid., § 133 in fine ). (b) Application of the principles to the present case 70. The Court considers that the applicant had been finally convicted, for the purposes of Article 4 § 1 of Prot. No. 7, notably of two capital offences by the Zurich Jury Court in 1993/1995 prior to the proceedings here at issue, in which the Swiss criminal courts imposed another punishment, namely subsequent preventive detention, in relation to the same offences. 71. The Federal Court found, and the Government argued, that this sanction had been imposed following the reopening of the trial in exceptional circumstances, in accordance with the requirements of Article 4 § 2 of Protocol No. 7. The Court observes that this provision accepts a “reopening” of the case owing to new or newly discovered facts which are so significant as to potentially affect the “outcome of the case”. Accordingly, a “reopening”, for the purposes of Article 4 § 2 of Protocol No. 7, usually leads to the initial judgment of the criminal court being annulled and the criminal charge being determined anew in a fresh decision. However, as found above (see paragraphs 42-45), the reopening at issue in the present case did not require any new elements affecting the nature of the offences committed by the applicant or the extent of his guilt and no fresh determination of a criminal charge in a new decision was, or was to, be made. Accordingly, the Court concludes that the applicant’s case was not reopened, for the purposes of Article 4 § 2 of Protocol No. 7. 72. There has accordingly been a violation of Article 4 of Protocol No. 7 to the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 73. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 74. The applicant requested 100,000 Swiss francs (CHF) per year of detention since 18 October 2010, when he should have been released from prison, in respect of non-pecuniary damage suffered as a result of his detention in breach of the Convention. 75. The Government considered that, if the Court found that the applicant had been detained in breach of the Convention, a total sum of 40,000 euros (EUR) would be justified in compensation for non-pecuniary damage. 76. The Court, having regard to the fact that it found violations of Articles 5 § 1 and 7 § 1 of the Convention and Article 4 § 1 of Protocol No. 7 as a result of the proceedings in which the applicant’s subsequent preventive detention had been ordered, and in so far as the applicant’s detention was based on that order (and not on subsequent judicial review decisions regarding that detention), awards the applicant EUR 40,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. Costs and expenses 77. The applicant also claimed a total of CHF 18,525.80 for the costs and expenses incurred in the proceedings before the Court. These comprised CHF 16,435.80 (including value-added tax (VAT)) for lawyer’s costs and expenses and CHF 2,090 for the costs of the translation of his observations into English. 78. The Government considered a sum of EUR 2,700 for lawyer’s costs and expenses incurred in the proceedings before the Court as sufficient, given that the questions before the Court had already been raised and addressed in the proceedings before the domestic courts. 79. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 6,000 covering costs and expenses for the proceedings before the Court, plus any tax that may be chargeable to the applicant. Default interest 80. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 4 of Protocol No. 7. It found in essence that by this detention, ordered in a reopening procedure in which there had not been any new evidence concerning the nature of the offence or the extent of the applicant’s guilt, he had been punished twice for the same offences. |
1,092 | Pensions | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Retirement benefits and disciplinary punishments 40. A public servant ’ s entitlement to retirement benefits is governed by the Pensions Law, Law 97(1)/97, as amended. The relevant sections, as applicable at the time, provide as follows: Section 4 (Granting of retirement benefits) “(1) Any pension, lump sum or gratuity, and other allowances, is granted to state officers of the Cyprus Republic in accordance with the provisions of the present Act. (2) Any pension, lump sum or gratuity granted under this Act shall be calculated in accordance with the provisions in force on the actual date of the state officer ’ s retirement.” Section 5 (charging the Consolidated Fund) “The Consolidated Fund of the Republic shall be charged with every pension, lump sum, gratuity or other allowance/benefit for which the Republic is liable on the basis of the law” Section 7 (exemption from income tax) “ Any gratuity and lump sum granted on the basis of the provisions of the Law are exempted from the imposition of income tax.” 41. Furthermore, section 8 of the Pensions Law provides the computation formula for pensions and lump sum payments. The following are the cases specified in section 9, as applicable at the time, which entitled a state employee to, inter alia, a pension and lump sum payment. These were: (a) on reaching the age of compulsory retirement or at any time thereafter; (b) on reaching the age of fifty-five; (c) on the abolition of his/her post; (d) on his/her retirement, to facilitate the organisational improvement of the service to which he/she belongs, which may thus achieve more effective operation of the service, or savings; (e) in case the employee was unable to perform his/her duties by reason of a mental or physical incapacity which was likely to be permanent; (f) in the event of termination of the employee ’ s services on specialised grounds of public interest in accordance with the relevant applicable law; (g) in the event of his retirement on account of inadequacy or unfitness; (h) in the event of imposition by the competent disciplinary organ of the disciplinary penalty of compulsory retirement; (i) on retirement for reasons of public interest to take some other public office which is incompatible with his/her office or post; (j) on retirement for reasons of public interest to be appointed to a public benefit organisation or local authority; and (k) in the event of voluntary early retirement. 42. Section 45 of the Pensions Law provides for reduction of a pension provided under the provisions of the Law by the equivalent complementary amount which is being paid to a pensioner or in this respect by virtue of the Social Security Laws with regard to insurance payments on which contributions were made after 6 October 1980. For the purposes of sections 5(1) and 88(1) of the Social Security Laws the employee is regarded, with reference to any service other than the service which is taken into consideration in calculating the maximum amount of pension and the amount of gratuity, as not covered by a professional pension scheme. 43. Furthermore, the relevant sections of the Public Service Law (Law 1/1990), as applicable at the time, governing retirement benefits and disciplinary punishment read as follows: Section 56 (retirement benefits) (1) The retirement benefits of permanent and pensionable officers are those prescribed by the Pensions Law or any law amending or substituted for the same and any Regulations made thereunder. (2) The retirement benefits of a monthly-paid officer, who does not belong to the permanent public service and is not serving on contract, shall be prescribed by Regulations made under this Law.” Section 79 (disciplinary punishments) “1. In accordance with the present Law, the following disciplinary penalties may be imposed: (a) reprimand (b) severe reprimand (c) disciplinary transfer (d) interruption of annual salary increase (e) suspension of annual salary increase (f) pecuniary penalty, which may not exceed three months ’ salary (g) reduction in salary scales (h) reduction in rank (i) compulsory retirement (j) dismissal. ... 7. Dismissal entails the loss of all retirement benefits. It is provided that a pension is paid to the wife or dependent children, if any, of a public servant who was dismissed as though he had died on the date of his dismissal and it shall be calculated on the basis of his actual years of service.” 44. It is noted that section 79(1) and (7) of the earlier law, namely, the Public Service Law of 1967 (Law 33/1967), applicable at the time of the applicant ’ s employment, was the same as that contained in Law 1/1990, save for the last paragraph of section 79(7), which provides for payment of a pension to the dismissed public servant ’ s family. This amendment was introduced by Law 1/1990. B. Relevant Constitutional provisions and case-law 45. The relevant Constitutional provisions read as follows: Article 23 “1. Every person, alone or jointly with others, has the right to acquire, own, possess, enjoy or dispose of any movable or immovable property and has the right to respect for such right. The right of the Republic to underground water, mineral and antiquities is reserved. 2. No deprivation or restriction or limitation of any such right shall be made except as provided in this Article. 3. Restrictions or limitations which are absolutely necessary in the interest of public safety, health or morals, or the town and county planning or the development and utilisation of any property to the promotion of the public benefit or for the protection of the rights of others may be imposed by law on the exercise of such right ... .” Article 166 (1) “There shall be charged on the Consolidated Fund, in addition to any grant, remuneration or other moneys charged by any other provision of this Constitution or law - (a) all pensions and gratuities for which the Republic is liable; ...”. Article 169 (3) “Treaties, conventions and agreements concluded in accordance with the foregoing provisions of this Article shall have, as from their publication in the official Gazette of the Republic, superior force to any municipal law on condition that such treaties, conventions and agreements are applied by the other party thereto.” 46. The Supreme Court, in the case of Pavlou v. the Republic (Revisional appeal no. 161/2006, (2009) 3 CLR 1402), which concerned the reduction of the State pension upon receipt of an old-age pension from the Social Insurance Fund, held that a pension constituted property and was consequently an individual right that required legal protection. III. RELEVANT INTERNATIONAL MATERIAL 47. The preamble of the Council of Europe ’ s Criminal Law Convention on Corruption of 27 January 1999 reads, in so far as relevant, as follows: “Preamble The member States of the Council of Europe and the other States signatory hereto, ... Emphasising that corruption threatens the rule of law, democracy and human rights, undermines good governance, fairness and social justice, distorts competition, hinders economic development and endangers the stability of democratic institutions and the moral foundations of society; ... ” THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 48. The applicant complained that the forfeiture of his retirement benefits following his dismissal from the public service breached Article 1 of Protocol No. 1 to the Convention, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. The parties ’ submissions 1. The Government 49. The Government submitted that the determining question in the case, in the light of the Court ’ s case-law concerning similar complaints on forfeiture or loss of pension, was whether a fair balance had been struck between the demands of the general interest of the community and the requirement of the protection of the individual ’ s fundamental rights. They noted that, in line with the Court ’ s case-law, the forfeiture of a retirement pension fell to be considered under the first sentence of the first paragraph of Article 1 of Protocol No. 1, since it acted neither as a control of use nor as a deprivation of property. In the Government ’ s view the required fair balance had not been exceeded. 50. The Government, relying on the Court ’ s decision in the case of Banfield (cited above) pointed out that the State ’ s entitlement to bring disciplinary proceedings against the applicant in addition to criminal proceedings was not in question: the criminal proceedings related to the breaches of criminal law and the disciplinary proceedings to the applicant ’ s breach of the relationship of trust which must exist between all employees and their employer. They observed in this respect that the situation in the present case had been the same as in Banfield : the applicant had benefited from procedural protection, and the penalty imposed on him had been a discretionary one. 51. First of all, the disciplinary procedure had commenced following the conclusion of the criminal proceedings. The PSC had transmitted the Assize Court ’ s judgment to the Attorney-General for an opinion as to whether the offences of which the applicant had been convicted entailed dishonesty and moral turpitude. After receiving the Attorney-General ’ s opinion, the PSC had afforded the applicant the right to be heard before deciding on the disciplinary penalty. 52. Secondly, the PSC ’ s decision to dismiss the applicant had been discretionary. This had been evident from both the Supreme Court ’ s ex tempore decision of 2 April 2007 and its judgment on appeal (see paragraphs 24 and 33 above). The present case was therefore distinguishable from that of Apostolakis (cited above), in which the conviction itself had led to the automatic forfeiture of the pension. Further, unlike in the case of Azinas (cited above), the PSC had taken into account a number of issues when deciding on the penalty, such as the mitigating factors cited by the applicant ’ s lawyer. These had included his difficult financial situation - a socio-economic report by the Department of Social Welfare Services had been submitted by the applicant - and the fact that his co-accused had received the lighter penalty of compulsory retirement. In exercising its discretion, the PSC had taken account of the fact that the applicant had been the main protagonist and the brains behind the offences committed. Soon after he had been entrusted with the task of signing authorisations for the payment of compensation to members of the public for compulsory acquisitions of their property, he had systematically, over a period of two years, used his position to defraud public funds of substantial amounts for his own personal gain. He had planned the whole scheme, and had executed it with the aid of his co-accused. As a result 223 criminal charges had been brought against him, and the offences of which he had been convicted and sentenced had been very serious. The Government considered that it could be assumed that the applicant had caused considerable damage to the public ’ s trust in the proper functioning of the Public Service and the honesty of State employees in administering State funds. The PSC had therefore decided to impose the penalty of dismissal, which was the most severe provided by the Public Service Law, as it carried the loss of all retirement benefits specified in section 56 of that Law, as applicable at the time. The Government stressed in this respect that in the case of Banfield (cited above) the Court had stated that it was not inherently unreasonable for provision to be made even for total forfeiture of a pension in suitable cases. 53. Thirdly, the applicant ’ s retirement pension and lump sum had been entirely publicly funded, the applicant having made no contributions. The forfeiture related to the State ’ s funding of the pension scheme. No issue therefore arose of forfeiture of contributions made by the applicant. Relying on the case of Klein v. Austria (no. 57028/00, § 57, 3 March 2011), the Government submitted that this was an important factor to take into account. The payment by the Republic of a public service retirement pension without any contribution by its civil servants constituted the employee ’ s reward for faithful service. If the applicant had received this reward, or part of it, public confidence would have been further shaken. The Government pointed out in this respect that at the time of his dismissal the applicant had been covered by an occupational pension scheme applicable to all State employees. This scheme provided State employees with benefits upon their retirement or resignation from service. In the event of their death the benefits were given to their dependents. The applicant, upon retirement, would have been entitled to an annual pension and a lump sum payment computable in accordance with the provisions of the Pensions Law, as applicable at the time. That law provided that the Republic was obliged to pay those benefits, which were charged to the account of the Republic ’ s consolidated fund. This was the fund into which, by virtue of the Constitution, all revenues and monies raised or received by the Republic were paid. Had the applicant theoretically retired voluntarily on 13 June 2005, pursuant to section 8 of the Pensions Law (see paragraph 41 above), he would have been entitled to an annual pension amounting to EUR 17,161.65; the lump sum came to EUR 80,087.82. 54. However, in contrast to the Apostolakis case (cited above), the applicant ’ s loss of retirement benefits had not entailed loss of his social insurance rights, nor had he been deprived of all means of subsistence. At all material times the applicant, like all State employees, had also been compulsorily insured under the Republic ’ s general Social Insurance Scheme, which covered all employees and entitled them to the payment of a social security pension from the Social Insurance Fund. This pension was funded by employee contributions as well as employer contributions, and its level depended on the amounts that had been contributed. The right to benefits payable from the Social Insurance Fund was not affected in the event of dismissal. Consequently, since 2012, when the applicant reached the age of sixty-three, he had been receiving a social security pension from the Social Insurance Fund amounting to EUR 1,363.98 per month. Although the Government admitted that this amount was slightly less than what he would have been entitled to under the Pensions Law if he had retired voluntarily on 13 June 2005, unlike the applicant in the case of Apostolakis, at the age of fifty-six the applicant still had employment potential. 2. The applicant 55. The applicant submitted, firstly, that it was clear from the domestic judgments and was also common ground between the parties that his pension amounted to a possession within the meaning of Article 1 of Protocol No. 1 and that its deprivation constituted an interference with his right to the peaceful enjoyment of his possessions. It was the applicant ’ s position that this interference was unjustified. In this respect he argued that a pension constituted an integral part of the employment contract that the Government offered to all of its employees, namely civil servants. This was evident from the schemes of service provided by the Government. Employment in the civil service came with a general undertaking and a corresponding legitimate expectation that a pension was payable as an integral part of the conditions of service. It was part of the overall employment package which the Government undertook to finance and pay at the end of one ’ s employment. Consequently, when the applicant ’ s employment was terminated by the Government he was entitled to his pension. 56. The applicant submitted that the automatic forfeiture of his retirement benefits upon the imposition of the penalty of dismissal had not been in the public interest and could not be considered justified or proportionate. The applicant had pleaded guilty to twenty-four charges in the criminal proceedings and had been sentenced to five years ’ imprisonment. The Assize Court when sentencing the applicant had taken into account the seriousness of the offences and had explained why a custodial sentence was appropriate and why it could not be suspended. Despite the fact that the penalty provided by the domestic law ranged from three years ’ imprisonment to life imprisonment, as part of the arrangement reached with the Government the applicant had received a five year sentence, which he had served. The applicant had also repaid the amount taken as part of the deal. The PSC had then through disciplinary proceedings decided to impose the strictest punishment provided by the law, namely dismissal. In the applicant ’ s view the above had constituted an adequate response to his misconduct and had been commensurate to the damage to public confidence. However, as a result of the dismissal he had also been automatically deprived of all his retirement benefits, including his pension which had been earned during his thirty-three years of employment as a civil servant. This could have been avoided if the PSC had imposed compulsory retirement, which would not have affected his retirement rights. Consequently, even though the applicant had repaid his debt to society having been convicted by a criminal court, served a prison sentence, reimbursed the amount due, and lost his job, all his retirement benefits were forfeited, exposing him to great financial and emotional hardship. The applicant had been subjected to a triple punishment, which was contrary to the principles of international law and the spirit of the Convention, as no one should be punished more than once for the same offence. Furthermore, the punishment was of a continuing nature: the longer the applicant lived the harsher the punishment was, as he remained without a pension. 57. The applicant argued that just as in the case of Apostolakis (cited above ) the imposition of the penalty of forfeiture of his retirement benefits was automatic and therefore sui generis disproportionate. In the above case the Court had also ruled that the fact that domestic law provided for the pension to be transferred to the family was insufficient to compensate Mr Apostolakis for his loss. 58. The applicant pointed out that the Government had not provided full and detailed information about the public service pension scheme. Furthermore, their observations were misleading, for a number of reasons. First of all, during the criminal proceedings the Government had not insisted on the maximum penalty provided by the domestic law, but had agreed to reach an arrangement in the case. How could they now argue before the Court that the imposition of a lesser disciplinary penalty would have been wrong? Secondly, the Government had attempted to create the impression that there was a clear distinction under domestic law between what was designated as the public service retirement pension and the social security pension, but that was not the case, as these pensions were treated as one. This was the reason why when a person reached retirement he was entitled only to one pension, and the pension granted under the Pensions Law was reduced by the corresponding amount granted as a pension from the Social Insurance Fund. The Government had failed to mention this. When the applicant had turned sixty-three and started receiving a social security pension, the pension received by his wife pursuant to section 79(7) of the Public Service Law was reduced by the complementary amount received by him from the Social Insurance Fund. Thirdly, it was misleading to argue that the payment of the non-contributory pension constituted a reward for faithful service. The pension could not be construed as a reward by the Government to the employee, but as part of his/her entitlements. It was therefore not subject to a work performance review. He lastly submitted, relying on the dissenting opinion of Judge Ress in the Grand Chamber judgment in Azinas (cited above), that it would be arbitrary to place the dividing line under the property aspect between those public servants who were working within a system of social security contracts where contributions were formally paid and those whose contributions were from the very beginning indirectly deducted from their salaries and therefore paid by the State. B. The Court ’ s assessment 1. General principles 59. The principles which apply generally in cases under Article 1 of Protocol No. 1 are equally relevant when it comes to pensions (see Stummer v. Austria [GC], no. 37452/02, § 82, 7 July 2011, and Andrejeva v. Latvia [GC], no. 55707/00, § 77, 18 February 2009). Thus, that provision does not guarantee the right to acquire property (ibid.). Nor does it guarantee, as such, any right to a pension of a particular amount (see, among many other authorities, Andrejeva, cited above, and Valkov and Others v. Bulgaria, nos. 2033/04, 19125/04, 19475/04, 19490/04, 19495/04, 19497/04, 24729/04, 171/05 and 2041/05, § 84, 2 5 October 2011 ). However, where a Contracting State has in force legislation providing for the payment as of right of a pension – whether or not conditional on the prior payment of contributions – that legislation has to be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for individuals who satisfy its requirements (see, among other authorities, Pejčić v. Serbia, no. 34799/07, § 55, 8 October 2013; Stummer, cited above, § 82; Carson and Others v. the United Kingdom [GC], no. 42184/05, §§ 64-65, ECHR 2010; and Banfield, and Apostolakis, § 29, both cited above ). The reduction or the discontinuance of a pension may therefore constitute an interference with peaceful enjoyment of possessions that needs to be justified (see, among other authorities, Grudić v. Serbia, no. 31925/08, § 72, 17 April 2012, and Valkov and Others, cited above). 60. The first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful and that it should pursue a legitimate aim “in the public interest” (see, among many authorities, The Former King of Greece and Others v. Greece [GC], no. 25701/94, §§ 79 and 83). Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to decide what is “in the public interest”. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment as to the existence of a problem of public concern warranting measures interfering with the peaceful enjoyment of possessions (see, among other authorities, Stefanetti and Others v. Italy, nos. 21838/10, 21849/10, 21852/10, 21822/10, 21860/10, 21863/10, 21869/10, and 21870/10, § 52, 15 April 2014 ). Here, as in other fields to which the safeguards of the Convention extend, the national authorities accordingly enjoy a certain margin of appreciation (see, among other authorities, The Former King of Greece and Others, cited above, § 87 ). 61. Any interference must also be reasonably proportionate to the aim pursued. In other words, a “fair balance” must be struck between the demands of the general interest of the community and the requirements of the protection of the individual ’ s fundamental rights. The requisite balance will not be found if the person or persons concerned have had to bear an individual and excessive burden (see, among many other authorities, The Former King of Greece and Others, cited above, §§ 89-90 ). 2. Application to the present case (a) Admissibility 62. The Court notes that it was common ground between the parties that the retirement benefits of a civil servant in Cyprus constituted a possession under Article 1 of Protocol No. 1. Indeed, in the light of its case-law (see paragraph 58 above), the Court finds that the applicant, when entering the civil service, acquired a right which amounted to a “possession” and that therefore this provision is applicable in the present case. 63. The Court further notes this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. (b) Merits 64. The parties agreed that the forfeiture of the applicant ’ s retirement benefits amounted to an interference with his right to the peaceful enjoyment of his possessions. Furthermore, it was not in dispute that the interference, which was based on the unambiguous wording of section 79(7) of the Public Service Law, was lawful in terms of both domestic and Convention law. The Court, taking into account its relevant case-law, sees no reason to hold otherwise. 65. The Court notes in this respect that the reduction or forfeiture of a retirement pension acts neither as a control of use nor a deprivation of property, but that it falls to be considered under the first sentence of the first paragraph of Article 1 (see Klein, § 49, and Banfield, both cited above). 66. Accordingly, it is the issue of proportionality which lies at the heart of the case. This being so, the Court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual ’ s fundamental rights. 67. The Court has no doubt that it was appropriate for the national authorities to bring disciplinary proceedings against the applicant in addition to the criminal ones and, given the applicant ’ s reprehensible misconduct and the nature and gravity of the offences, to opt for the most serious penalty, namely dismissal. Indeed, this is acknowledged by the applicant (see paragraph 5 6 above), whose grievance is concentrated rather on the automatic forfeiture of all his retirement rights upon his dismissal. 68. In this connection, the Court reiterates that in the case of Banfield (cited above) it held that, having regard to the margin of appreciation allowed to States in making appropriate provision for its civil servants ’ pensions, it did not consider it inherently unreasonable for provision to be made for reduction or even total forfeiture of pensions in suitable cases. More recently, the Court has observed in general (see Da Silva Carvalho Rico v. Portugal ((dec.), no. 13341/14, 1 September 2015) and Stefanetti and Others, cited above, § 59, 15 April 2014 ), that the deprivation of the entirety of a pension was likely to breach Article 1 of Protocol No. 1 (see, for example, Apostolakis, cited above, and Kjartan Ásmundsson v. Iceland, no. 60669/00, ECHR 2004 ‑ IX ) and that, conversely, the imposition of a reduction which it considers to be reasonable and commensurate would not (see, for example, among many other authorities, Da Silva Carvalho Rico, and Valkov and Others, both cited above; Arras and Others v. Italy, no. 17972/07, 14 February 2012; Poulain v. France (dec.), no. 52273/08, 8 February 2011; and, a contrario, Stefanetti and Others, cited above). It is evident, however, from the relevant case-law, that whether or not the right balance has been struck will very much depend on the circumstances and particular factors of a given case which may tip the scales one way or the other. 69. In the present case, the applicant, after pleading guilty to a number of very serious offences which included obtaining a substantial amount of money by false pretences, forging cheques, concealment and abuse of office (see paragraph 8 above), was sentenced to five years ’ imprisonment (criminal case no. 18115/02). In passing sentence the Nicosia Assize Court took into account another eight similar criminal cases pending against the applicant. A total of 223 criminal charges against the applicant were involved. 70. Following the applicant ’ s conviction in the above case and, after receiving the Attorney-General ’ s advisory opinion that the offences committed involved dishonesty or moral turpitude, the PSC initiated disciplinary proceedings against the applicant. The applicant was able to make representations before the PSC before the decision on the disciplinary penalty was taken. In particular, through his lawyer, the applicant put forward a number of mitigating factors and submitted a report by the Department of Social Welfare Services on his financial situation (see paragraph 13 above). Thereafter, the decision of the PSC was reviewed by the Supreme Court at two levels of jurisdiction. In addition, unlike in the case of Apostolakis (cited above), there were disciplinary proceedings which were separate from the criminal proceedings, and the applicant ’ s personal position was considered in depth before the PSC decided on the penalty to be imposed. The Court finds, and indeed the parties do not contest, that the applicant benefited from extensive procedural guarantees (see Banfield, cited above). 71. The Court observes that it was open to the PSC to impose any of the ten penalties provided for by section 79(1) of the Public Service Law. In the circumstances, it was inevitable that the penalty imposed on the applicant would be at the more severe end of the sliding scale of penalties, and after hearing the applicant ’ s counsel, the PSC chose the most severe penalty, namely dismissal. As a result, section 79(7) of the above Law applied, that is, the applicant forfeited his retirement benefits. 72. In practice, and again differently from the case of Apostolakis, that did not leave the applicant without any means of subsistence. In this respect the Court notes that the forfeiture concerned the applicant ’ s public service retirement benefits, that is, a retirement lump sum and a monthly pension (see paragraph 17 above). He remained eligible to receive, and did receive from August 2012, a social security pension from the Social Insurance Fund to which he and his employer had contributed (see paragraph 39 above). 73. Furthermore, a widow ’ s pension was paid to his wife pursuant to section 79(7) of the Public Service Law (a provision which was not applicable in the case of Azinas; see the Grand Chamber judgment, cited above, §§ 21-22), which ensured that his family immediately received a pension based on the assumption that he had died rather than been dismissed. It is true that the Court found, in the Apostolakis case, that the fact that a pension had been transferred to Mr Apostolakis ’ s family did not suffice to offset the loss of his own pension, as it considered that in future he could lose all means of subsistence and all social cover, for example, if he became a widower or divorced ( see Apostolakis, cited above, § 40). The Court finds, however, that this reasoning cannot be applied in the present case as the applicant has not claimed that during the seven year period between his dismissal and the date when he became eligible and started to receive a social security pension, he was unable to benefit for any reason from the pension paid to his wife and family. Following that, he began to receive his social security pension in full; his public service retirement pension would in any event have been set off against the amount of the social security pension (see paragraph 5 8 above). In addition his wife continued and continues to receive a part of the widow ’ s pension (see paragraphs 39 and 5 8 above). 74. Weighing the seriousness of the offences committed by the applicant against the effect of the disciplinary measures (see, inter alia, paragraph 47 above) and taking all the above factors into consideration, the Court finds that the applicant was not made to bear an individual and excessive burden. 75. It follows that there has been no violation of Article 1 of Protocol No. 1. II. ALLEGED VIOLATIONS OF ARTICLE 1 OF PROTOCOL No. 12 AND ARTICLE 1 OF PROTOCOL No. 1 TAKEN IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION 76. The applicant complained that the deprivation of his retirement benefits, on the ground that his wife and dependents would still benefit from it, had been discriminatory on the basis of his marital status, and therefore contrary to Article 1 of Protocol No. 12 as well as Article 14 of the Convention taken together with Article 1 of Protocol No.1. Article 14 and Article 1 of Protocol No. 12 read as follows: Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article 1 of Protocol No. 12 “1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 77. The Government contested that argument. 78. The Court notes that the applicant ’ s complaint as to discrimination is triggered by the findings made by the Supreme Court, at first instance, and in particular, the weight that the court gave to the payment of a widow ’ s pension to his wife from the day of his dismissal pursuant to section 79(7) of the Public Service Law. 79. The Court notes that the clear aim of section 79(7) of the Public Service Law was to ensure that the effects of deprivation of a pension affected the person against whom disciplinary proceedings had been brought, and not his or her family. This provision benefited the applicant ’ s family and did not adversely affect him in any way. 80. Accordingly, the Court finds that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 81. Lastly, the applicant complained that he had been unable to contest the legality of the decision of the PSC, that the decision had become unassailable, and that he had been deprived of effective access to court. He relied on Article 13 of the Convention. This provision reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 82. The Court notes that the applicant ’ s complaint under this provision is in effect a complaint about right of access to court under Article 6 § 1 of the Convention. The Court observes, however, that the applicant was able to challenge the decision of the PSC before the Supreme Court. The Supreme Court examined the merits of the applicant ’ s arguments at first instance and on appeal, but he was unsuccessful, as it was ruled at both levels that the forfeiture of his retirement benefits resulting from his dismissal had been proportionate. In these circumstances it cannot be said that the applicant was deprived of his right of access to court. The mere fact that the outcome of the proceedings was not favourable to the applicant is not equivalent to depriving him of this right. 83. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. | The Court held that there had been no violation of Article 1 (protection of property) of Protocol No. 1 to the Convention. Weighing the seriousness of the offences committed by the applicant, involving a total of 223 criminal charges of, among other things, dishonesty, obtaining money under false pretences, forging cheques and abuse of office, against the effect of the disciplinary measures, the Court found that he had not been made to bear an individual and excessive burden. |
692 | Incitement to religious intolerance | II. RELEVANT DOMESTIC LAW A. The Constitution of the Republic of Azerbaijan 21. At the material time, the relevant provisions of the Constitution provided as follows: Article 7 Azerbaijani State “I. The Azerbaijani State is a democratic, secular, unitary republic governed by the rule of law. ...” Article 18 Religion and State “I. Religion is separated from the State in the Republic of Azerbaijan. All religious faiths shall be equal before the law. ...” Article 47 Freedom of thought and speech “I. Everyone enjoys the freedom of thought and speech. THE LAW I. PRELIMINARY ISSUE 23. The Court notes at the outset that the first applicant, Mr Rafig Tagiyev, died on 23 November 2011 after lodging the present application and his wife, Ms Maila Tagiyeva, has expressed her wish to continue the proceedings before the Court in his stead (see paragraph 4 above). The Government did not dispute the standing of the first applicant’s wife to pursue the application in the first applicant’s stead. 24. The Court notes that in various cases in which an applicant has died in the course of the Convention proceedings, it has taken into account the statements of the applicant’s heirs or of close family members expressing the wish to pursue the proceedings before the Court (see, among other authorities, Jėčius v. Lithuania, no. 34578/97, § 41, ECHR 2000 ‑ IX; Pisarkiewicz v. Poland, no. 18967/02, §§ 30-33, 22 January 2008; and Ergezen v. Turkey, no. 73359/10, §§ 27-30, 8 April 2014). The Court has accepted that the next-of-kin or heir may in principle pursue the application, provided that he or she has sufficient interest in the case (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 97, ECHR 2014, and Ksenz and Others v. Russia, nos. 45044/06 and 5 others, § 86, 12 December 2017). In view of the above and having regard to the circumstances of the present case, the Court accepts that Ms Maila Tagiyeva has a legitimate interest in pursuing the application in her late husband’s stead. However, for reasons of convenience, the text of this judgment will continue to refer to Mr Rafig Tagiyev as “the first applicant”, even though only Ms Maila Tagiyeva is today to be regarded as having the status of first applicant before the Court (see Gulub Atanasov v. Bulgaria, no. 73281/01, § 42, 6 November 2008, and Isayeva v. Azerbaijan, no. 36229/11, § 62, 25 June 2015). II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 25. The applicants complained under Articles 7, 9 and 10 of the Convention that their criminal conviction for publication of the impugned article had amounted to a violation of their rights protected by the Convention. Having regard to the circumstances of the case, the Court considers that the applicants’ complaints do not raise a separate issue under Articles 7 and 9 of the Convention and fall to be examined under Article 10 of the Convention, albeit questions relating to Article 9 arise in the balancing exercise thereunder. Article 10 reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. Admissibility 26. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 27. The applicants maintained their complaint, submitting that their criminal conviction for the publication of the article “Europe and us” had amounted to an unjustified interference with their right to freedom of expression. They argued that their criminal conviction for inciting religious hatred and hostility had not been justified by the domestic courts which simply relied on a forensic report concluding that there were elements capable of leading to incitement to religious hatred and hostility. In that connection, the applicants noted that the article in question could not be characterised as incitement to religious hatred and hostility and it had only sought to make a comparison between Islam and Christianity in the context of European and Eastern humanist values and human rights concepts. 28. Relying on the Court’s case-law, the applicants submitted that a number of elements should have been taken into account in the assessment of the impugned article. In particular, the article had not targeted any religious group or its believers and there was no intent to incite hatred and hostility between various religious groups. The applicants further pointed out that the context should also be taken into account in the assessment of the case by the Court, as there was neither before nor after the publication of the impugned article any hostility among the religious groups in Azerbaijan, a country with a high degree of religious tolerance and peace. Moreover, the author of the article was a writer without any political affiliation and did not have any authority or influence on any social or religious group in the country. The article had been published in a newspaper which had a circulation of around 800 copies, with a very limited impact on society. Lastly, the applicants drew attention to the severity of the sanctions imposed by the domestic authorities, arguing that they had been totally disproportionate. 29. The Government agreed that the applicants’ criminal conviction had constituted an interference with their right to freedom of expression. That interference had been prescribed by Article 283 of the Criminal Code, and had pursued the legitimate aims of “the protection of the rights of others” and “the prevention of disorder”. 30. The Government submitted that the applicants’ criminal conviction had met a pressing social need, as the impugned article had contained an abusive attack on religion, in particular Islam, and had offended and insulted religious feelings. There had been a strong public reaction to that article. Various religious entities, such as the Juma Mosque Religious Community, the Azerbaijan Islamic Party and the Caucasian Muslims Office, had made public statements condemning the article and several public rallies had been held in the suburbs of Baku. 31. Relying on the Court’s case-law, the Government submitted that the national authorities enjoyed a certain margin of appreciation in assessing the existence and extent of the necessity for such an interference and that in the case of “morals” it was not possible to discern throughout Europe a uniform conception of the significance of religion in society. Taking into account the margin of appreciation left to the Contracting States in such circumstances, the Government considered that the domestic courts had been entitled to interfere with the exercise of the applicants’ right in the present case. Moreover, the domestic courts had struck the right balance between the rights protected under Articles 9 and 10 of the Convention. Furthermore, the Government drew attention to the fact that the applicants had been dispensed from serving the remainder of their sentence in December 2007 by a presidential decree. 2. The Court’s assessment (a) Whether there was interference 32. The Court notes that it is undisputed by the parties that the applicants’ criminal conviction amounted to an interference with the exercise of their right to freedom of expression, as guaranteed by Article 10 of the Convention. The Court shares this view. (b) Whether the interference was justified 33. Such an interference will constitute a breach of Article 10 unless it was “prescribed by law”, pursued one or more legitimate aims under paragraph 2, and was “necessary in a democratic society” for the achievement of such an aim (see Perinçek v. Switzerland [GC], no. 27510/08, § 124, ECHR 2015 (extracts)). (i) Prescribed by law 34. The Court observes that the applicants’ criminal conviction had been based on Article 283 of the Criminal Code, which was accessible and foreseeable and, therefore, that the interference with their right to freedom of expression had been “prescribed by law” within the meaning of Article 10 § 2 of the Convention. (ii) Legitimate aim 35. The Court observes that the Government submitted that the interference had pursued the legitimate aims of “the protection of the rights of others” and “the prevention of disorder”. The Court endorses this assessment (see İ.A. v. Turkey, no. 42571/98, § 22, ECHR 2005 ‑ VIII, and Aydın Tatlav v. Turkey, no. 50692/99, § 21, 2 May 2006). (iii) Necessary in a democratic society (α) General principles 36. The general principles for assessing whether an interference with the exercise of the right to freedom of expression has been “necessary in a democratic society” are well-established in the Court’s case-law and have been reiterated in numerous cases. The Court has stated, in particular, that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to Article 10 § 2, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society” (see, among many other authorities, Pentikäinen v. Finland [GC], no. 11882/10, § 87, ECHR 2015; Perinçek, cited above, § 196; and Bédat v. Switzerland [GC], no. 56925/08, § 48, ECHR 2016). 37. Moreover, there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debates on questions of public interest. The margin of appreciation of States is thus reduced where a debate on a matter of public interest is concerned (see Baka v. Hungary [GC], no. 20261/12, § 159, 23 June 2016, and Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 167, 27 June 2017). As paragraph 2 of Article 10 recognises, however, the exercise of freedom of expression carries with it duties and responsibilities. Amongst them, in the context of religious beliefs, is the general requirement to ensure the peaceful enjoyment of the rights guaranteed under Article 9 to the holders of such beliefs including a duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and profane (see Giniewski v. France, no. 64016/00, § 43, ECHR 2006 ‑ I, and Sekmadienis Ltd. v. Lithuania, no. 69317/14, § 74, 30 January 2018). Where such expressions go beyond the limits of a critical denial of other people’s religious beliefs and are likely to incite religious intolerance, for example in the event of an improper or even abusive attack on an object of religious veneration, a State may legitimately consider them to be incompatible with respect for the freedom of thought, conscience and religion and take proportionate restrictive measures (see for example, mutatis mutandis, Otto ‑ Preminger-Institut v. Austria, 20 September 1994, § 47, Series A no. 295 ‑ A; İ.A., cited above, §§ 29-31; and E.S. v. Austria, no. 38450/12, § 43, 25 October 2018). 38. In addition, with regard, more specifically, to the interference with freedom of expression in cases concerning expressions alleged to stir up or justify violence, hatred or intolerance, the Court reiterates that tolerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society. That being so, as a matter of principle it may be considered necessary in democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify violence or hatred based on intolerance, provided that any “formalities”, “conditions”, “restrictions” or “penalties” imposed are proportionate to the legitimate aim pursued (see, mutatis mutandis, Gündüz v. Turkey, no. 35071/97, § 40, ECHR 2003 ‑ XI). It certainly remains open to the relevant State authorities to adopt, in their capacity as guarantors of public order, measures, even of a criminal-law nature, intended to react appropriately and without excess to such remarks (see Erdoğdu v. Turkey, no. 25723/94, § 62, ECHR 2000 ‑ VI). 39. In examining whether restrictions on the rights and freedoms guaranteed by the Convention can be considered “necessary in a democratic society”, the Court has frequently held that the absence of a uniform European conception of the requirements of the protection of the rights of others in relation to attacks on their religious convictions broadens the Contracting States’ margin of appreciation when regulating freedom of expression in relation to matters liable to offend personal convictions within the sphere of morals or religion (see Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports of Judgments and Decisions 1996 ‑ V; Aydın Tatlav, cited above, § 24; and E.S., cited above, § 44). 40. The adjective “necessary” implies the existence of a “pressing social need”, which must be convincingly established. Admittedly, it is first of all for the national authorities to assess whether there is such a need capable of justifying that interference and, to that end, they enjoy a certain margin of appreciation (see, for instance, Erdoğdu, cited above, § 53). However, in the context of the freedom of press the authorities enjoy only a limited margin of appreciation in assessing whether “a pressing social need” exists (see Görmüş and Others v. Turkey, no. 49085/07, § 42, 19 January 2016). Moreover, the margin of appreciation is coupled with supervision by the Court both of the law and the decisions applying the law, even those given by independent courts. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see, among many other authorities, Karataş v. Turkey [GC], no. 23168/94, § 48, ECHR 1999 ‑ IV, and Perinçek, cited above, § 196). 41. The Court’s supervisory function is not limited to ascertaining whether the national authorities exercised their discretion reasonably, carefully and in good faith. It has rather to examine the interference in the light of the case as a whole and to determine whether the reasons adduced by the national authorities to justify it were “relevant and sufficient” and whether the measure taken was “proportionate” to the legitimate aim pursued. In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10 of the Convention (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004 ‑ VI). In order to determine its proportionality, the Court must consider the impugned interference not only in the light of the content of the statements at issue, but also the context in which they were made. Furthermore, the nature and severity of the penalty imposed are also factors to be taken into account (see, for example, Gündüz, § 42, and Bédat, § 79, both cited above). (β) Application of the above principles to the present case 42. In the present case, the first and second applicants were prosecuted in criminal proceedings and were sentenced to three and four years’ imprisonment, respectively, for the publication of the article “Europe and us” in the Sanat Gazeti newspaper. In particular, relying on a forensic report, the domestic courts found the applicants guilty under Article 283 of the Criminal Code for inciting religious hatred and hostility in using the following four remarks in the above-mentioned article: (a) “Europe has always refused and refuses the deceitful humanist ideas of other religions, including Islam. Morality in Islam is a juggling act; its humanism is not convincing”; (b) “in comparison with Jesus Christ, the father of war fatwas the Prophet Muhammad is simply a frightful creature”; (c) “at best, Islam would advance in Europe with tiny demographic steps. And maybe there would be a country in which Islam would be represented by a few individuals or terrorists living incognito”; and (d) “the European philosopher does not act as a clown like the Eastern philosopher, is not inclined to Sufism, or madness, stupidity. Yes, the Eastern philosopher is a pure actor; all his activities are decorated with imaginations of miniature ornament for the sake of ideology. The Eastern philosopher says something for the sake of saying something. The aim, the way is unknown, or quite abstract”. 43. The Court observes at the outset that the Government did not argue before it that the impugned remarks contained in the above-mentioned article constituted hate speech and that, therefore, the applicants should not benefit from the protection of Article 10 of the Convention by virtue of the application of Article 17 of the Convention (compare Perinçek, cited above, §§ 103-15, and Stern Taulats and Roura Capellera v. Spain, nos. 51168/15 and 51186/15, §§ 25-42, 13 March 2018). Moreover, the Court sees nothing in the case file to suggest that the impugned remarks were directed against the Convention’s underlying values or that by making them the applicants attempted to rely on the Convention to engage in an activity or perform acts aimed at the destruction of the rights and freedoms laid down therein (compare Belkacem v. Belgium (dec.), no. 34367/14, §§ 29 ‑ 37, 27 June 2017, and ROJ TV A/S v. Denmark (dec.), no. 24683/14, §§ 34-42, 17 April 2018). 44. The issue before the Court therefore involves weighing up the conflicting interests of the exercise of two fundamental freedoms, namely the right of the applicants to impart to the public their views on religion in the press on the one hand, and the right of others to respect for their freedom of thought, conscience and religion on the other (see Otto ‑ Preminger ‑ Institut, § 55; İ.A., § 27; and Aydın Tatlav, § 26, all cited above). The Court reiterates that a religious group must tolerate the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith, as long as the statements at issue do not incite to hatred or religious intolerance (see E.S., cited above, § 52). 45. In that connection, the Court notes that, although the article “Europe and us” contained several remarks about Islam and its social and philosophical implications, it is clear from the reading of the whole text that the article mainly dealt with the comparison between Western and Eastern values, expressing the author’s ideas about the role of religion in the formation of those values, as well as the impact of those values in the context of human rights and development in the world and in Azerbaijan. Therefore, the article should not be examined only in the context of a matter relating to religious beliefs, but also in the context of a debate on a matter of public interest, namely the role of a religion in society and its role in the development of society. 46. As regards the content of the impugned remarks characterised by the domestic courts as incitement to religious hatred and hostility, the Court notes that some of these remarks, in particular those concerning the Prophet Muhammad and Muslims living in Europe (see paragraph 42 above), may be seen by certain religious people as an abusive attack on the Prophet of Islam and Muslims living in Europe, capable of causing religious hatred. However, it is first of all for the national authorities to carry out a comprehensive assessment of the impugned remarks, putting forward relevant and sufficient reasons for justifying the interference and carefully balancing the applicants’ right to freedom of expression with the protection of the right of religious people not to be insulted on the grounds of their beliefs. 47. In that connection, the Court notes that it cannot, in the instant case, accept the reasons provided by the domestic courts as relevant and sufficient for the purpose of justifying the interference in question. It observes that the domestic courts confined themselves in their decisions to reiterating the conclusions of a forensic report, without giving any explanation as to why the particular remarks contained in the article constituted incitement to religious hatred and hostility. The domestic courts failed to examine the report and merely endorsed its conclusions. The relevant assessment clearly went far beyond resolving mere language and religious issues, such as, for instance, defining the meaning of particular words and expressions or their religious importance, and provided, in essence, a legal characterisation of the impugned remarks. The Court finds that situation unacceptable and stresses that all legal matters must be resolved exclusively by the courts (see Dmitriyevskiy v. Russia, no. 42168/06, § 113, 3 October 2017, and Maria Alekhina and Others v. Russia, no. 38004/12, § 262, 17 July 2018). 48. The domestic courts also failed to carry out any assessment of the impugned remarks by examining them within the general context of the article. On the contrary, they examined the impugned remarks detached from the general context and content of the article, without assessing the author’s intention, the public interest of the matter discussed and other relevant elements. However, domestic courts in such proceedings are required to consider whether the context of the case, the public interest and the intention of the author of the impugned article justified the possible use of a degree of provocation or exaggeration (compare Paraskevopoulos v. Greece, no. 64184/11, § 40, 28 June 2018). Moreover, the Court cannot accept the Government’s assertion that the domestic courts struck the right balance between the rights protected under Articles 9 and 10 of the Convention, as the domestic courts in their decisions did not even try to balance the applicants’ right to freedom of expression with the protection of the right of religious people not to be insulted on the grounds of their beliefs (see paragraphs 14, 16 and 18 above). 49. The Court further considers it necessary to draw attention to the severity of the penalties imposed on the applicants, who were convicted in criminal proceedings and given sentences of three and four years’ imprisonment, respectively, spending more than one year and one month in detention. The Court reiterates in this connection that a criminal conviction is a serious sanction, having regard to the existence of other means of intervention and rebuttal (see Perinçek, cited above, § 273). Moreover, although sentencing is in principle a matter for the national courts, the Court does not consider that the circumstances of the present case disclosed any justification for the imposition on the applicants of such severe sanctions, which were capable of producing a chilling effect on the exercise of freedom of expression in Azerbaijan and dissuading the press from openly discussing matters relating to religion, its role in society or other matters of public interest (see Aydın Tatlav, cited above, § 30, and Fatullayev v. Azerbaijan, no. 40984/07, § 128, 22 April 2010). 50. The foregoing considerations are sufficient to enable the Court to conclude that the applicants’ criminal conviction was disproportionate to the aims pursued and, accordingly, not “necessary in a democratic society”. There has accordingly been a violation of Article 10 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 51. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1. Pecuniary damage 52. The applicants, without indicating an exact amount, claimed compensation in respect of pecuniary damage, arguing that they had lost earnings over a period of 408 days as a result of their criminal conviction. In that connection, the first applicant submitted that his average monthly salary and earnings amounted to 800-900 Azerbaijani manats (AZN) and the second applicant submitted that his average monthly salary and earnings totalled AZN 650-800. The applicants further claimed that their family had spent approximately 400-500 euros (EUR) per month on sending food to them and regularly visiting them in prison. 53. The Government contested the claims, submitting that the applicants had failed to substantiate them. 54. As regards the applicants’ claim for loss of earnings, the Court reiterates that, under Rule 60 of the Rules of Court, any claim for just satisfaction must be itemised and submitted in writing, together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part. In the present case, even assuming that there is a causal link between the damage claimed and the violation found, the Court observes that the applicants did not submit any documentary evidence in support of their claim (see Hajibeyli and Aliyev v. Azerbaijan, nos. 6477/08 and 10414/08, § 73, 19 April 2018, and Haziyev v. Azerbaijan, no. 19842/15, § 48, 6 December 2018). 55. As to the part of the claim concerning the food and visiting expenses, the Court does not find any causal link between the damage claimed and the violation found (see Fatullayev, cited above, § 186; Efendiyev v. Azerbaijan, no. 27304/07, § 60, 18 December 2014; and Yagublu v. Azerbaijan, no. 31709/13, § 68, 5 November 2015). 56. For the above reasons, the Court rejects the applicants’ claims in respect of pecuniary damage. 2. Non-pecuniary damage 57. The applicants each claimed EUR 50,000 in respect of non ‑ pecuniary damage. 58. The Government submitted that a finding of a violation would constitute sufficient just satisfaction. 59. The Court considers that the applicants have suffered non ‑ pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards each applicant the sum of EUR 12,000 under this head, plus any tax that may be chargeable on this amount. B. Costs and expenses 60. The applicants each claimed EUR 1,450 for costs and expenses incurred before the Court. In support of this claim, they submitted a contract between Ms Maila Tagiyeva and Mr R. Hajili and a contract between the second applicant and his representatives, Mr R. Hajili and Mr K. Agaliyev. The applicants further claimed EUR 5,000 for costs and expenses incurred before the domestic courts and the preparation of the initial application to the Court on the basis of the legal services conducted by Mr I. Ashurov. No contract was submitted in support of that claim. 61. The Government argued that the claims were unsubstantiated. In particular, they pointed out that no relevant documentation was submitted in support of the amount claimed for legal expenses incurred before the domestic courts and the preparation of the initial application to the Court by Mr I. Ashurov. They further asked the Court to reject the part of the claim concerning the applicants’ representation before the Court, disputing the authenticity of the contracts submitted by the applicants and pointing out that it could not be established on the basis of these contracts that the costs had actually been incurred. 62. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court observes that the applicants did not submit any document in support of their claim for legal expenses incurred before the domestic courts and the preparation of the initial application to the Court by Mr I. Ashurov. As to the remaining part of the claim, the Court notes that the applicants made identical submissions before the Court and the amount of work done by their representatives before the Court was limited to the preparation of their observations. Having regard to these facts, as well as to the documents in its possession and the above criteria, the Court considers it reasonable to award to each applicant the sum of EUR 850 covering costs under all heads. C. Default interest 63. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that the applicants’ conviction had been excessive and had breached their freedom of expression. It noted in particular that the national courts had not justified why the applicants’ conviction had been necessary when the article had clearly only been comparing Western and Eastern values, and had contributed to a debate on a matter of public interest, namely the role of religion in society. Indeed, the courts had simply endorsed a report finding that certain remarks had amounted to incitement to religious hatred and hostility, without putting them in context or even trying to balance the applicants’ right to impart to the public their views on religion against the right of religious people to respect for their beliefs. |
324 | Obligation on States to protect the victims of trafficking | RELEVANT LEGAL FRAMEWORK AND PRACTICE Relevant domestic lawConstitution Constitution Constitution 95. The relevant provisions of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske, Official Gazette no. 56/1990, with further amendments) read as follows: Article 23 “No one shall be subjected to any form of ill-treatment ... Forced or compulsory labour is forbidden.” Article 35 “Everyone shall have the right to respect and legal protection of his or her private and family life, dignity, reputation and honour.” Article 134 “International agreements in force which have been concluded and ratified in accordance with the Constitution and made public shall be part of the internal legal order of the Republic of Croatia and shall have precedence over the [domestic] statutes. ...” Criminal Code 96. The relevant part of the Criminal Code ( Kazneni zakon, Official Gazette no. 110/1997, with further amendments), as in force at the relevant time, read as follows: Trafficking in human beings and slavery Article 175 “1. Whoever violates the rules of international law in that he or she by the use of force or of a threat to use force, by means of fraud, by abduction, by abuse of authority or of a position of helplessness or in any other manner recruits, buys, sells, hands over, transports, transfers, incites or acts as intermediary in the purchase or delivery [of a person], or harbours a person for the purposes of slavery or a similar relationship, forced labour, sexual exploitation, prostitution or illegal human-organ transplant, or who keeps a person in slavery or a similar condition, shall be punished by imprisonment for one to ten years. ... 5. The existence of the criminal offence under paragraph 1 ... does not depend on whether the person concerned consented to force labour, servitude, sexual exploitation, slavery or a similar relationship, or illegal transplant of human organs.” Procuring prostitution ( Podvođenje ) Article 195 “... 2. Whoever, for profit, organises or arranges for another person to provide sexual services shall be punished by imprisonment from six months to three years. 3. Whoever, for profit, forces or entices a person to provide sexual services by the use of force or the threat of the use of force or by means of deception shall be punished by imprisonment from one to five years. ... 7. It is irrelevant for the existence of the criminal offence under this Article whether the person who was engaged in prostitution had already practised it.” 97. The relevant provisions of the Criminal Code (Official Gazette nos. 125/2011 and 144/2012) currently in force read as follows: Slavery Article 105 “1. Whoever violates the rules of international law in that he or she places another in slavery or a similar relationship or keeps another in such a position, or buys, sells, transfers or acts as an intermediary in the sale or transfer of a person or entices another to sell his or her freedom or the freedom of a person whom he or she is caring for shall be punished by imprisonment for one to ten years. ...” Trafficking in human beings Article 106 “1. Whoever by the use of force, of threat, of fraud, of deception, of abduction, of the abuse of authority or [abuse] of a difficult situation, or a dependency relationship, or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, or in any other manner recruits, transports, transfers, harbours or receives a person or exchanges or transfers the control over a person for the purpose of exploitation of his or her labour by means of forced labour, servitude, slavery or a similar relationship, or for his or her exploitation for prostitution or other forms of sexual exploitation including pornography, or for the purpose of entering an illegal or forced marriage, for the removal of organs, for his or her participation in armed conflicts, or in order to commit an illegal act shall be punished by imprisonment for one to ten years. ... 7. The consent of the victim of trafficking in persons is irrelevant for the existence of the criminal offence in question.” Prostitution Article 157 “1. Whoever, for profit or other gain lures, recruits or entices another person to provide sexual services or organises or arranges for another person to provide sexual services shall be punished by imprisonment for six month to five years. 2. Whoever, for profit, by the use of force or threat, deception, fraud, abuse of power or abuse of a difficult situation or a dependency relationship, forces or entices another person to provide sexual services, or uses sexual services of such a person for payment and knew or ought to have known of the above-mentioned circumstances, shall be punished by imprisonment for one to ten years. ... 3. It is irrelevant for the existence of the criminal offence whether the person who was lured, recruited, enticed or used for prostitution gave his or her consent or had already engaged in prostitution.” Code of Criminal Procedure 98. The relevant provisions of the Code of Criminal Procedure ( Zakon o kaznenom postupku, Official Gazette no. 152/2008, with further amendments), as applicable at the relevant time when a particular procedural action was taken, read as follows: Article 2 “1. Criminal proceedings shall be instituted and conducted only at the request of a competent prosecutor. ... 2. In respect of criminal offences subject to public prosecution, the competent prosecutor shall be the State Attorney ... 3. Unless otherwise provided for by law, the State Attorney shall undertake a criminal prosecution where there is a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution and where there are no legal impediments to the prosecution of that person.” Article 16 “1. In criminal proceedings the victim and injured party shall have the rights provided for in this Code. 2. The police, investigators, State attorney and court shall act with special care with the victim of the criminal offence [concerned]. These authorities shall instruct the victim [of his or her rights] under paragraph 3 of this Article and under Articles 43-46 of this Code and care for the victim’s interests when adopting their decisions concerning the prosecution of the accused or when taking actions within the criminal proceedings in which the victim has to participate personally. 3. A victim suffering serious psycho-physical damage or serious consequences of a criminal offence has the right to the free professional aid of a counsellor in accordance with the law.” Article 38 “1. The basic power and the main duty of a State attorney shall be the prosecution of the perpetrators of criminal offences liable to State prosecution.” Victim Article 43 “1. The victim of a criminal offence shall have: (1) the right to effective psychological and other professional help and to the support of a body or organisation providing support to the victims of criminal offences in accordance with the law; (2) the right to participate in the criminal proceedings as an injured party; (3) other rights provided for by law. 2. In accordance with special legislation, the victim of an offence punishable by five or more years’ imprisonment shall have the right: (1) to a legal aid counsellor before being heard in the criminal proceedings and when making a compensation claim, if he or she suffers serious psycho-physical damage or other serious consequences of the offence; (2) to compensation for pecuniary and non-pecuniary damage from the State fund as provided for in a special law ... 3. When taking the first action in which the victim participates, the court [conducting the proceedings], a State Attorney, an investigator and the police shall inform the victim of: (1) his or her rights under paragraphs 1 and 2 of this Article ... (2) of his or her rights [in the proceedings] as an injured party.” Article 45 “1. The victim of a criminal offence against his or her sexual freedom and morals shall have, in addition to those under Articles 43 and 44 of this Code, the following rights: (1) to free consultation with a counsellor before giving his or her evidence; (2) to be interviewed by an officer of his or her own gender when interviewed by the police; (3) not to answer a question concerning his or her strictly private life; (4) to ask to give his or her evidence by means of audio-visual equipment as provided for under Article 292(4) of this Code. (5) to confidentiality of personal data; (6) to request the exclusion of the public from a hearing. 2. Before the victim gives his or her evidence for the first time, the court [conducting the proceedings], a State attorney, an investigator and the police shall inform the victim of the criminal offence under paragraph 1 of this Article of his or her rights under this Article.” Article 52 “1. The victim shall have the right to point to the relevant facts and to propose evidence necessary for the establishment of the criminal offence, identification of the perpetrator and establishment of the victim’s civil claim. 2. At the hearing the victim shall have the right to propose evidence, question the accused, witnesses and experts and make objections and give explanations concerning their evidence, as well as to give other statements and requests. 3. The victim shall have the right to inspect files and examine objects used as evidence ... 4. The State Attorney and the court shall inform the victim of the rights set out in [this Article].” Main hearing Article 419 “1. The parties shall have the right to propose the questioning of witnesses and experts and the taking and examination of other evidence. The trial panel can take and examine evidence which the parties have not proposed, or in respect of which they have withdrawn their proposal, if it considers it to be important for the establishment of circumstances relating to the exclusion of unlawfulness or guilt or it concerns [the issues of sanctioning]. 2. ... The President of the trial panel shall inform the parties and the injured party that [the court] shall not take and examine evidence of which the parties were aware before the start of the hearing but for which they have failed, without justified reason, to make a timely request for examination.” Article 441 “1. If during the hearing the prosecutor finds that the evidence taken and examined in the proceedings suggests that the factual circumstances set out in the indictment have changed, he or she can [orally or in writing] amend the indictment until the end of the proceedings for the taking and examination of evidence. 2. In order to prepare the amendments to the indictment or to prepare the defence [as appropriate] the parties may seek adjournment of the trial.” Article 449 “1. A judgment may refer only to a person who has been indicted and only to the criminal offence which is the subject of the charges in the [initially lodged] indictment or the indictment amended or extended at a hearing. 2. The court is not bound by the prosecutor’s legal classification of the offence but the accused cannot be held guilty of a more serious offence than the one he or she has been indicted for.” Minor offences legislation 99. The Minor Offences against Public Order and Peace Act ( Zakon o prekršajima protiv javnog reda i mira, Official Gazette no. 5/1990 with further amendments) proscribes acts facilitating prostitution (section 7) and prostitution itself (section 12). Both offences are punishable by a fine or thirty days’ imprisonment. Compensation for damage 100. A claim for the compensation in respect of damage resulting from an infringement of rights of personality can be made under the Civil Obligations Act ( Zakon o obveznim odnosima, Official Gazette nos. 35/2005, with further amendments). Rights of personality within the meaning of that Act are, amongst other, the right to physical and mental health, reputation, honour, dignity, privacy of personal and family life, liberty (section 19). 101. On 1 July 2013 the Act on Compensation for Damage to Victims of Criminal Offences came into force ( Zakon o novčanoj naknadi žrtvama kaznenih djela, Official Gazette, no. 80/2008, with further amendments). It provides for the possibility for the victims of violent offences and offences against sexual integrity to obtain compensation from the State of some forms of damage under certain conditions. Policy documents and activities concerning human trafficking 102. In May 2002 the Government of Croatia established the National Board for the Suppression of Human Trafficking as a multidisciplinary inter-departmental body composed of representatives of the relevant authorities and non-governmental organisations working in the field of human trafficking. The Board is in charge of preparing programmes, plans and policy guidelines in this field. Within the Board, there is also an Operative Team for the Suppression of Human Trafficking which ensures the effective functioning and performance of the Board’s tasks. 103. Since 2002 the Government have also adopted several National Plans for the Suppression of Human Trafficking. They are aimed at establishing guidelines and defining policies in particular in relation to the improvement of the normative framework of human trafficking; ensuring a proactive approach to the identification of victims of human trafficking; achieving effective coordination between the prosecuting authorities, other State bodies and civil society; processing of data on cases of human trafficking; raising awareness of and working on the prevention of human trafficking; and ensuring sufficient financial means for these activities. Under the National Plan, the Human Rights Office coordinates the activities in the field of human trafficking. 104. In addition, the activities and coordination of the work of the national authorities in the suppression of human trafficking is based on three specialised protocols: the Protocol on the identification, assistance and protection of victims of human trafficking (2008); the Protocol on procedures during the voluntary return of victims of human trafficking (2009); and the Protocol on the integration/reintegration of the victims of human trafficking (2011). 105. The Protocol on the identification, assistance and protection of victims of human trafficking regulates the procedure for recognition of the status of victim of human trafficking. The identification is carried out by specialised bodies of the Ministry of the Interior in cooperation with the Red Cross and representatives of civil society. The decision on identification can be taken by the Ministry of the Interior or the Operative team of the National Board for the Suppression of Human Trafficking. The Human Rights Office formally certifies the decision on identification. The purpose of the procedure is to ensure various rights of assistance and protection to the victim. 106. The domestic authorities also cooperate actively with civil society and in particular with the “Petra” network of non-governmental organisations dealing with the issues of human trafficking and sexual exploitation of women and children, which is financed by the Human Rights Office. The Rosa Centre is a member of the “Petra” network. INTERNATIONAL LAW AND PRACTICEUnited Nations instrumentsThe 1949 Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others (“the 1949 Convention”) United Nations instrumentsThe 1949 Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others (“the 1949 Convention”) The 1949 Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others (“the 1949 Convention”) United Nations instrumentsThe 1949 Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others (“the 1949 Convention”) The 1949 Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others (“the 1949 Convention”) The 1949 Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others (“the 1949 Convention”) 107. The 1949 Convention consolidated several treaties adopted between 1904 and 1933. It came into force on 25 July 1951 and was ratified by Croatia on 12 October 1992. In addition to Croatia, it has been ratified by twenty-five other Council of Europe member States. 108. The relevant parts of the 1949 Convention read as follows: Preamble “Whereas prostitution and the accompanying evil of the traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person and endanger the welfare of the individual, the family and the community, ...” Article 1 “The Parties to the present Convention agree to punish any person who, to gratify the passions of another: (1) Procures, entices or leads away, for purposes of prostitution, another person, even with the consent of that person; (2) Exploits the prostitution of another person, even with the consent of that person.” Article 2 “The Parties to the present Convention further agree to punish any person who: (1) Keeps or manages, or knowingly finances or takes part in the financing of a brothel; (2) Knowingly lets or rents a building or other place or any part thereof for the purpose of the prostitution of others.” Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (“the Palermo Protocol”) 109. The United Nations Convention against Transnational Organized Crime (“UNCTOC”) forms part of the central legal framework concerning trafficking in persons under international law. It represents the “parent instrument” to a specialised protocol on the matter, namely the Palermo Protocol. 110. UNCTOC was signed on 12-15 December 2000 and entered into force on 29 September 2003. 189 States are parties to this Convention. The Palermo Protocol was signed on 15 November 2000 and entered into force on 25 December 2003. 173 States are parties to this Protocol. Both instruments were ratified by Croatia on 24 January 2003. 111. The purpose of UNCTOC is to promote cooperation with a view to preventing and combating transnational organised crime more efficiently (Article 1). The scope of this Convention is subject to three prerequisites: firstly, the offence in question must have a transnational aspect, secondly, it must involve an “organized criminal group” and thirdly, the offence must constitute a “serious crime” (Article 3). However, Article 34 § 2 of UNCTOC provides the following: “The offences established in accordance with articles 5, 6, 8 and 23 of this Convention shall be established in the domestic law of each State Party independently of the translational nature or the involvement of an organized criminal group as described in article 3, paragraph 1, of this Convention, except to the extent that article 5 of this Convention would require the involvement of an organized criminal group.” 112. For its part, the Palermo Protocol aims to: (i) prevent and combat trafficking in persons, paying particular attention to women and children; (ii) protect and assist the victims of such trafficking, with full respect for their human rights; (iii) promote cooperation among States Parties in order to meet those objectives (Article 2). The provisions of UNCTOC apply, mutatis mutandis, to the Palermo Protocol unless provided otherwise (Article 1 § 2). (a) Definition of trafficking in human beings 113. Trafficking in human beings has been defined for the first time under international law in the Palermo Protocol as follows (Article 3 (a)): ‘Trafficking’ in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs ...” 114. The crime of trafficking in persons has three constituent elements: (i) an action (what is done: the recruitment, transportation, transfer, harbouring or receipt of persons); (ii) the means (how it is done: by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person); (iii) an exploitative purpose (why it is done: this includes at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs). A combination of the three constituent elements is necessary in order for the crime of trafficking to be established as regards adult victims (UNODC, Combating Trafficking in Persons: A Handbook for Parliamentarians, March 2009, No. 16-2009, pp. 13-14). 115. Article 3 (b) clarifies that if one of the means set forth in Article 3 (a) is used, it is irrelevant whether the person expressed his/her consent or not. In its Issue Paper The Role of ‘Consent’ in the Trafficking in Persons Protocol (2014), the United Nations Office on Drugs and Crime (“UNODC”) found that the requirement to show “means” affirms that, at least within the Protocol, exploitative conditions alone are insufficient to establish trafficking of adults. 116. The terms “exploitation of the prostitution of others” and “sexual exploitation” have been intentionally left undefined in the Palermo Protocol to allow States, irrespective of their domestic policies on prostitution, to ratify the Protocol. This was highlighted in the Interpretative notes for the official records ( travaux préparatoires ) of the negotiation of the Palermo Protocol in the following manner (paragraph 64, p. 12): “[T]he Protocol addresses the exploitation of the prostitution of others and other forms of sexual exploitation only in the context of trafficking in persons and ... the terms ‘exploitation of prostitution of others’ or ‘other forms of sexual exploitation’ are not defined in the Protocol, which is therefore without prejudice to how States Parties address prostitution in their respective domestic laws.” 117. However, in the Model Law against Trafficking in Persons (pp. 13 ‑ 15 and 19), UNODC defined “exploitation of prostitution of others” as the unlawful obtaining of financial or other material benefit from the prostitution of another person. It also defined “sexual exploitation” as the obtaining of financial or other benefits through the involvement of another person in prostitution, sexual servitude or other kinds of sexual services, including pornographic acts or the production of pornographic materials. It should also be noted that as regards “forced labour or services”, the UNODC explained that “initial recruitment can be voluntary and the coercive mechanisms to keep a person in an exploitative situation may come into play later.” 118. Furthermore, in a document entitled “Joint UN Commentary on the EU Directive – A Human Rights-Based Approach” (2011), issued by the relevant United Nations bodies (the Office of the High Commissioner for Human Rights (OHCHR); the UN Refugee Agency (UNHCR); UNICEF; UNODC; UN Women; and the International Labour Organisation), the following was noted (p. 104): “Exploitation of prostitution of others and sexual exploitation are not defined in international law. The terms have been intentionally left undefined in the Protocol in order to allow all States, independent of their domestic policies on prostitution, to ratify the Protocol. While the Protocol draws a distinction between exploitation for forced labour or services and sexual exploitation, this should not lead to the conclusion that coercive sexual exploitation does not amount to forced labour or services, particularly in the context of trafficking. Coercive sexual exploitation and forced prostitution fall within the scope of the definition of forced labour ...” (b) Scope of the Palermo Protocol 119. According to Article 4, the scope of the Palermo Protocol is as follows: “This Protocol shall apply, except as otherwise stated herein, to the prevention, investigation and prosecution of the offences established in accordance with article 5 of this Protocol, where those offences are transnational in nature and involve an organized criminal group, as well as to the protection of victims of such offences.” 120. According to the Model Law against Trafficking in Persons prepared by UNODC (p. 8), although Article 4 limits its applicability to offences that are transnational in nature and involve an organised criminal group, these requirements are not part of the definition of the offence and therefore national laws should establish trafficking in persons as a criminal offence, independently of the transnational nature or the involvement of an organised criminal group. In this connection, reference is made to Article 34 § 2 of UNCTOC (see paragraph 111 above). (c) Relevant State obligations 121. Article 5 of the Palermo Protocol provides as follows: “1. Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct set forth in article 3 of this Protocol, when committed intentionally. 2. Each State Party shall also adopt such legislative and other measures as may be necessary to establish as criminal offences: (a) Subject to the basic concepts of its legal system, attempting to commit an offence established in accordance with paragraph 1 of this article; (b) Participating as an accomplice in an offence established in accordance with paragraph 1 of this article; and (c) Organizing or directing other persons to commit an offence established in accordance with paragraph 1 of this article.” 122. Article 6 provides for various measures of assistance to and protection of victims of trafficking in persons. In so far as relevant for the present case, it reads as follows: “... 2. Each State Party shall ensure that its domestic legal or administrative system contains measures that provide to victims of trafficking in persons, in appropriate cases: (a) Information on relevant court and administrative proceedings; (b) Assistance to enable their views and concerns to be presented and considered at appropriate stages of criminal proceedings against offenders, in a manner not prejudicial to the rights of the defence. 3. Each State Party shall consider implementing measures to provide for the physical, psychological and social recovery of victims of trafficking in persons, including, in appropriate cases, in cooperation with non-governmental organizations, other relevant organizations and other elements of civil society, and, in particular, the provision of: (a) Appropriate housing; (b) Counselling and information, in particular as regards their legal rights, in a language that the victims of trafficking in persons can understand; (c) Medical, psychological and material assistance; and (d) Employment, educational and training opportunities. ... 5. Each State Party shall endeavour to provide for the physical safety of victims of trafficking in persons while they are within its territory. 6. Each State Party shall ensure that its domestic legal system contains measures that offer victims of trafficking in persons the possibility of obtaining compensation for damage suffered.” Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”) 123. CEDAW was adopted in 1979 by the UN General Assembly and ratified by Croatia on 9 September 1992. Article 6 reads: “States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.” 124. The CEDAW Committee, in its General recommendation No. 19 on violence against women (1992), held as follows: “13. States parties are required by article 6 to take measures to suppress all forms of traffic in women and exploitation of the prostitution of women. 14. Poverty and unemployment increase opportunities for trafficking in women. In addition to established forms of trafficking there are new forms of sexual exploitation ... [which are] incompatible with the equal enjoyment of rights by women and with respect for their rights and dignity. They put women at special risk of violence and abuse. 15. Poverty and unemployment force many women, including young girls, into prostitution. Prostitutes are especially vulnerable to violence because their status, which may be unlawful, tends to marginalize them. They need the equal protection of laws against rape and other forms of violence.” 125. In its General recommendation No. 35, which complements and updates its General recommendation No. 19, the CEDAW Committee held, inter alia, as follows: “10. The Committee considers that gender-based violence against women is one of the fundamental social, political and economic means by which the subordinate position of women with respect to men and their stereotyped roles are perpetuated ... 12. In general recommendation No. 28 and general recommendation No. 33, the Committee confirmed that discrimination against women was inextricably linked to other factors that affected their lives. The Committee, in its jurisprudence, has highlighted the fact that such factors include women’s ... being in prostitution, as well as trafficking in women. ... 32. The Committee recommends that States parties implement the following measures with regard to prosecution and punishment for gender-based violence against women: (a) Ensure effective access for victims to courts and tribunals and that the authorities adequately respond to all cases of gender-based violence against women, including by applying criminal law and, as appropriate, ex officio prosecution to bring alleged perpetrators to trial in a fair, impartial, timely and expeditious manner and imposing adequate penalties ...” 126. The CEDAW Committee, in its background paper concerning Article 6 summarising the travaux préparatoires and the jurisprudence of the Committee (CEDAW/2003/II/WP.2), concluded as follows: “The Committee consistently addressed the issue of prostitution and trafficking in women and girls when considering the initial and periodic reports of the States parties. In general, the approach taken by the Committee focused on the need to adopt a comprehensive strategy against the exploitation of prostitution and trafficking which would include: adoption or review of legislation to de-criminalize prostitutes and impose severe sanctions to pimps, procurers and traffickers; implementation of measures aimed at improving the economic situation of women and girls so as to eliminate their vulnerability to prostitution and trafficking; provision of social support and health-care services to prostitutes; implementation of rehabilitation and reintegration measures for women and girls who had been victims of trafficking; and training of border police and law enforcement officials in order that they might recognize and provide support for victims of trafficking. In its approach, the Committee laid particular emphasis on the need to respect the human rights of prostitutes and victims of trafficking.” 127. On 28 July 2015 the CEDAW Committee published its concluding observations on the combined fourth and fifth periodic reports of Croatia (CEDAW/C/HRV/CO/4-5). As regards trafficking and exploitation of prostitution, it noted as follows: “20. While the Committee notes with appreciation the legislative and policy measures and programmes aimed at protecting women and girls who are victims of trafficking, it is concerned: (a) That perpetrators of trafficking are often charged with offences of pimping rather than the more serious offence of human trafficking, resulting in a disturbingly low rate of conviction for human trafficking; (b) That victims of exploitation of prostitution are sometimes prosecuted rather than provided with appropriate support measures, while persons purchasing sex from victims of forced prostitution and/or victims of trafficking are not consistently prosecuted and commensurately punished; (c) That there are inadequate mechanisms for identifying victims of trafficking in situations of heightened risk; (d) That there are inadequate systems for the collection of disaggregated data on victims of trafficking, including by sex, age, ethnicity and nationality; (e) That there are inadequate shelter and training of personnel therein, for victims of trafficking; (f) That there are inadequate measures to address the specific vulnerabilities and needs of non-national victims of trafficking.” 128. It therefore recommended, inter alia, that Croatia: “(a) Ensure that perpetrators of trafficking receive sentences commensurate with the gravity of the offence; ... (c) Strengthen measures to identify and provide support to women at risk of trafficking ...” 129. In 1993 the UN General Assembly adopted, by consensus, the Declaration on the Elimination of Violence against Women (A/RES/48/104) to complement CEDAW. Article 2 (b) of this Declaration emphasises that violence against women shall be understood to encompass, but not be limited to the following: “ Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution.” International Covenant on Civil and Political Rights (“the ICCPR”) 130. The ICCPR was adopted in 1966 by the UN General Assembly and ratified by Croatia in 1992. Article 8 of the ICCPR reads, in so far as relevant, as follows: “1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited. 2. No one shall be held in servitude. 3. (a) No one shall be required to perform forced or compulsory labour.” 131. In its General Comment no. 28 on Equality of rights between men and women (CCPR/C/21/Rev.1/Add.10), the Human Rights Committee (“the HRC”) held that States parties should inform the Committee of measures taken to eliminate trafficking of women and children, within the country or across borders, and forced prostitution. 132. On 30 April 2015 the HRC published its concluding observations on the third periodic report of Croatia (CCPR/C/HRV/CO/3). As regards trafficking, it held as follows: “The Committee takes note of reports indicating retrogression with regard to measures taken to combat trafficking in persons. The Committee is also concerned that trafficking in persons persists in the State party. The Committee is further concerned about the small number of prosecutions and the leniency of the sentences imposed on traffickers (art. 8). The State party should vigorously pursue its public policy to combat trafficking. It should continue its efforts to raise awareness of and combat trafficking in persons, including at the regional level and in cooperation with neighbouring countries. The State party should train its police officers, border control personnel, judges, lawyers and other relevant personnel in order to raise awareness of the matter and of the rights of victims. It should ensure that all individuals responsible for trafficking in persons are prosecuted and punished commensurately with the crimes committed, and that victims of trafficking are compensated and rehabilitated. Furthermore, the State party should step up its efforts to identify victims of trafficking and ensure the systematic collection of data on trafficking, which should be disaggregated by age, sex and ethnic origin and should also be focused on trafficking flows from, to and through its territory.” Recommended Principles and Guidelines on Human Rights and Human Trafficking 133. In 2002 the High Commissioner for Human Rights issued Recommended Principles and Guidelines on Human Rights and Human Trafficking (E/2002/68/Add.1), which adopted a rights-based approach to human trafficking. 134. As regards the primacy of human rights, the Recommended Principles emphasise that States have a responsibility under international law to act with due diligence to prevent trafficking, to investigate and prosecute traffickers and to assist and protect trafficked persons (Principle 2). 135. As to protection and assistance, Principle 9 requires that legal and other assistance be provided to trafficked persons for the duration of any criminal, civil or other actions against suspected traffickers. 136. In so far as criminalisation and punishment are concerned, Principle 13 provides that States must “effectively investigate, prosecute and adjudicate trafficking, including its component acts and related conduct”. Special Rapporteur on trafficking in persons, especially women and children 137. In her annual report to the Human Rights Council, in 2006, the Special Rapporteur Sigma Huda focused on demand for commercial sexual exploitation and trafficking. In particular, she noted as follows: “41. The Protocol [Palermo] does not necessarily require States to abolish all possible forms of prostitution. It does, however, require States to act in good faith towards the abolition of all forms of child prostitution and all forms of adult prostitution in which people are recruited, transported, harboured, or received by means of the threat or use of force, or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of one person having control over another, for the purpose of exploiting that person’s prostitution. 42. For the most part, prostitution as actually practiced in the world usually does satisfy the elements of trafficking. It is rare that one finds a case in which the paths to prostitution and/or a person’s experience within prostitution do not involve, at the very least, an abuse of power and/or an abuse of vulnerability. Power and vulnerability in this context must be understood to include power disparities based on gender, race, ethnicity and poverty. Put simply, the road to prostitution and life within “the life” is rarely one marked by empowerment or adequate options. 43. Thus, State parties with legalized prostitution industries have a heavy responsibility to ensure that the conditions which actually pertain to the practice of prostitution within their borders are free from the illicit means delineated in subparagraph (a) of the Protocol definition, so as to ensure that their legalized prostitution regimes are not simply perpetuating widespread and systematic trafficking. As current conditions throughout the world attest, States parties that maintain legalized prostitution are far from satisfying this obligation.” 138. In her annual report to the Human Rights Council, in 2012, the Special Rapporteur Joy Ngozi Ezeilo focused on integration of a human rights-based approach in the prosecution of cases of human trafficking. In particular, she noted as follows: “31. Timely and efficient identification of victims is central to the criminalization of trafficking, as it affects the ability of law enforcement officials to prosecute traffickers effectively and is fundamental in terms of being able to provide trafficked persons with the necessary support services. The Special Rapporteur observes, however, that the issue of identification raises a number of complex pragmatic questions, in particular concerning how, where and by whom identification should be performed. ... 34. Police are often at the forefront when identifying victims, and thus play a critical role in this process. While they may be experienced in law enforcement in general, they may not have specific expertise in trafficking in persons; for this reason, the Special Rapporteur highlights the importance of ensuring that they are given appropriate training to identify victims of trafficking accurately and with sensitivity. ... 57. Proactive investigations that seek to collect evidence to obviate or support victim testimony are another way for States to realize their due diligence obligation to prosecute trafficking without unduly burdening victims. The Special Rapporteur notes that alternative or corroborative evidence may be difficult to collect in trafficking cases because of limited resources and a lack of trained officials, particularly in States most affected by trafficking. The situation may also be compounded by the hidden nature of the crime and the lack of concrete records or indicators of criminal activity. It is important to acknowledge that substituting victim testimony with alternative evidence may not allow for full and effective prosecution. Nevertheless, the added value of such evidence merits attention, not least because the discovery of additional or corroborative evidence may alleviate some of the pressure put on victims during the prosecution process.” International Labour Organisation (“the ILO”) 139. The ILO has adopted two conventions on forced labour, namely the 1930 Forced Labour Convention (“Convention No. 29”) and the 1957 Abolition of Forced Labour Convention (“Convention No. 105”), which were ratified by Croatia on 8 October 1991 and 5 March 1997 respectively. 140. In 2014 two new instruments were adopted by the ILO with a view to providing a comprehensive strategy against all forms of forced labour, including trafficking in persons, namely the Protocol to Convention No. 29 and Recommendation 203 on Supplementary Measures for the Effective Suppression of Forced Labour. Forced or compulsory labour according to Convention No. 29 141. Convention No. 29 requires ratifying States to suppress all forms of forced or compulsory labour. Article 2 § 1 reads as follows: “For the purposes of this Convention the term forced or compulsory labour shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily .” 142. The definition consists of three elements: (i) work or service – this refers to all types of work, service and employment, occurring in any activity, industry or sector, including in the informal economy. Forced labour can occur in both the public and private sectors; (ii) menace of a penalty – this refers to a wide range of penalties used to compel someone to perform work or service, including penal sanctions and various forms of direct or indirect coercion such as physical violence, psychological threats or the non-payment of wages. The “penalty” may also consist of a loss of rights or privileges; and (iii) involuntariness – the term “offered voluntarily” refer to the free and informed consent of a worker to enter into an employment relationship and his or her freedom to leave the employment at any time. For example, an employer or recruiter could interfere with this freedom by making false promises to induce a worker to take a job that he or she would not otherwise have accepted (ILO, Standards on Forced Labour: the New Protocol and Recommendation at a glance (2016), p. 5). 143. The ILO’s Special Action Programme to Combat Forced Labour has devised eleven indicators of forced labour. They are: (i) abuse of vulnerability, (ii) deception, (iii) restriction of movement, (iv) isolation, (v) physical and sexual violence, (vi) intimidation and threats, (vii) retention of identity documents, (viii) withholding of wages, (ix) debt bondage, (x) abusive working and living conditions, and (xi) excessive overtime. It has been suggested that the presence of a single indicator in a given situation may in some cases imply the existence of forced labour but that in others it may be several indicators, which, taken together, point to a forced labour practice. 144. However, the ILO has stressed that “forced labour” encompasses activities which are more serious than the mere failure to respect labour laws and working conditions. For example, the failure to pay a worker the statutory minimum wage does not in itself constitute forced labour (ILO, Human Trafficking and Forced Labour Exploitation: Guidance for Legislation and Law Enforcement (2005), pp. 19-21). 145. The Committee of Experts which monitors the implementation of the ILO Conventions has considered the following concerning the link between human trafficking and trafficking-related conduct and forced or compulsory labour (ILO, Report of the ILO Committee of Experts on the Application of Conventions and Recommendations, Report III (Part IB), p. 41): “77. A crucial element of the definition of trafficking is its purpose, namely, exploitation, which is specifically defined to include forced labour or services, slavery or similar practices, servitude and various forms of sexual exploitation. The notion of exploitation of labour inherent in this definition allows for a link to be established between the Palermo Protocol and Convention No. 29 and makes clear that trafficking in persons for the purpose of exploitation is encompassed by the definition of forced or compulsory labour provided under Article 2, paragraph 1, of the Convention. 78. While a certain distinction has been drawn in the above definition between trafficking for forced labour or services and trafficking for sexual exploitation, this should not lead to a conclusion that coercive sexual exploitation does not amount to forced labour or services, particularly in the context of human trafficking. The inclusion of ‘exploitation for the prostitution of others’ may create difficulties in this since, since there is no duty to criminalize prostitution, either under the Palermo Protocol, or under Convention No. 29, and consequently prostitution and related matters falling outside the scope of trafficking in persons should be dealt with by individual countries in accordance with their national laws and policies. Nonetheless, it seems clear that coercive sexual exploitation and forced prostitution do come within the scope of the definition of forced or compulsory labour in Article 2, paragraph 1, of the Convention.” 146. In this connection, it is also worth mentioning that the European Commission, together with the ILO, developed the Operational Indicators of Trafficking in Human Beings, which provide for three different indicators (strong, medium and weak) applied to each of the elements of the trafficking definition (act, means and purpose). 147. In its Direct request to Croatia on the application of Convention No. 29, adopted in 2018, the Committee of Experts held, inter alia, as follows: “The Committee ... requests the Government to take the necessary measures to ensure that investigations and prosecutions are carried out against perpetrators of trafficking in persons. ... The Committee ... requests the Government to strengthen its efforts with regard to the identification of victims of trafficking for purposes of both sexual and labour exploitation, and to take the necessary measures to ensure that appropriate protection and assistance is provided to such victims. The Committee also requests the Government to provide information on the measures taken and the results achieved in this regard.” Protocol to Convention No. 29 148. The Protocol to Convention No. 29 aims to address various gaps in the implementation of that Convention by reaffirming that measures of prevention, protection and remedies are necessary to achieve the effective and sustained suppression of forced or compulsory labour. Croatia has not yet ratified this Protocol. 149. In particular, the preamble to the Protocol recognises the following: “[T]he context and forms of forced or compulsory labour have changed and trafficking in persons for the purposes of forced or compulsory labour, which may involve sexual exploitation, is the subject of growing international concern and requires urgent action for its effective elimination ...” 150. Article 1 reads, in so far as relevant, as follows: “1. In giving effect to its obligations under the Convention to suppress forced or compulsory labour, each Member shall take effective measures to prevent and eliminate its use, to provide to victims protection and access to appropriate and effective remedies, such as compensation, and to sanction the perpetrators of forced or compulsory labour. ... 3. The definition of forced or compulsory labour contained in the Convention is reaffirmed, and therefore the measures referred to in this Protocol shall include specific action against trafficking in persons for the purposes of forced or compulsory labour.” 151. Article 3 reads: “Each Member shall take effective measures for the identification, release, protection, recovery and rehabilitation of all victims of forced or compulsory labour, as well as the provisions of other forms of assistance and support.” Council of EuropeConvention on Action against Trafficking in Human Beings (“the Anti ‑ Trafficking Convention”) Convention on Action against Trafficking in Human Beings (“the Anti ‑ Trafficking Convention”) Convention on Action against Trafficking in Human Beings (“the Anti ‑ Trafficking Convention”) 152. The Anti-Trafficking Convention entered into force on 1 February 2008. It was ratified by Croatia on 5 September 2007. 153. The Anti-Trafficking Convention is a comprehensive treaty which aims to prevent and combat trafficking in human beings, while guaranteeing gender equality; to protect the human rights of the victims of trafficking, design a comprehensive framework for the protection and assistance of victims and witnesses, while guaranteeing gender equality, as well as to ensure effective investigation and prosecution; and to promote international cooperation on action against trafficking in human beings (Article 1). 154. Article 39 of the Anti-trafficking Convention states that it does not affect the rights and obligations deriving from the Palermo Protocol, that it was intended to enhance the protections afforded by the Protocol and to develop the standards contained therein. (a) Definition of trafficking in human beings 155. The definition of trafficking in human beings under Article 4 (a) is identical to Article 3 (a) of the Palermo Protocol and consists of the same three components (see paragraph 113 above). 156. In the Explanatory report to the Anti-Trafficking Convention it is pointed out that trafficking in human beings is a combination of these constituents and not the constituents taken in isolation. Thus, as in the Palermo Protocol, for there to be trafficking in adult human beings, ingredients from each of the three categories must be present together. 157. As regards terminology, the Explanatory report clarifies that “recruitment” includes recruitment by using new information technologies like the Internet (see further, the Council of Europe publication “Trafficking in human beings: Internet recruitment Misuse of the Internet for the recruitment of victims of trafficking in human beings” EG-THB-INT (2007) 1), and that “transport” does not need to be across a border to be a constituent of trafficking in human beings. 158. It also highlights the fact that fraud and deception are frequently used by the traffickers, as when victims are led to believe that an attractive job awaits them rather than the intended exploitation. The term “abuse of vulnerability” means “abuse of any situation in which the person involved has no real and acceptable alternative to submitting to the abuse”. It this connection it is further held as follows: “The vulnerability may be of any kind, whether physical, psychological, emotional, family-related, social and economic. The situation might, for example, involve insecurity or illegality of the victim’s administrative status, economic dependence or fragile health. In short, the situation can be any hardship in which a human being is impelled to accept being exploited.” 159. The terms “exploitation of the prostitution of others” and “other forms of sexual exploitation” are not defined in the Anti-Trafficking Convention. The Explanatory report states that this is so as not to prejudice how State parties deal with prostitution in domestic law. 160. Article 4 (b) reads as follows: “The consent of a victim of ‘trafficking in human beings’ to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used.” 161. According to the Explanatory report the approach adopted in Article 4 (b) is in line with the approach to consent in the Court’s case-law. 162. The scope of the Anti-Trafficking Convention is clearly meant to include “all forms of trafficking in human beings, whether national or transnational, whether or not connected with organized crime” (Article 2). (b) Identification of and assistance to victims 163. Chapter III concerns measures to protect and promote the rights of victims. In particular, Article 10 § 1 on identification of the victims reads as follows: “Each Party shall provide its competent authorities with persons who are trained and qualified in preventing and combating trafficking in human beings, in identifying and helping victims, including children, and shall ensure that the different authorities collaborate with each other as well as with relevant support organisations, so that victims can be identified in a procedure duly taking into account the special situation of women and child victims and, in appropriate cases, issued with residence permits under the conditions provided for in Article 14 of the present Convention.” 164. The Explanatory report to the Anti-Trafficking Convention clarifies that the competent authorities involved in the identification process need not be specialists in human-trafficking matters but that they must have the necessary training and qualifications to be able to identify victims. 165. Further, Articles 11 to 16 of the Anti-Trafficking Convention provide for further measures of assistance and protection of victims: protection of their private life; psychological, social and legal assistance to victims; recognition of a recovery and reflection period for the victim to recover and escape the influence of traffickers and/or to take an informed decision on cooperating with the authorities; granting of residence permits in some instances; providing for the possibility of compensation and legal redress; and measures to facilitate the repatriation and return of victims. (c) Provisions related to substantive criminal law, investigation, prosecution and procedural law 166. Chapters IV and V of the Anti-Trafficking Convention contain a series of obligations on States with a view to enabling the effective investigation and prosecution of traffickers, including the attribution of proportionate and dissuasive sanctions. 167. Article 18 is identical to Article 5 of the Palermo Protocol and provides that States shall adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct contained in Article 4 of this Convention, when committed intentionally. Article 23 provides for the necessity of introducing effective, proportionate and dissuasive sanctions and measures. 168. Article 27 § 1, concerning prosecution, reads as follows: “Each Party shall ensure that investigations into or prosecution of offences established in accordance with this Convention shall not be dependent upon the report or accusation made by a victim, at least when the offence was committed in whole or in part on its territory.” 169. Other relevant procedural issues are regulated in Articles 28 and 30, and concern the protection of victims, witnesses and collaborators with the judicial authorities and the protection of victims during court proceedings. (d) Monitoring 170. Chapter VII of the Anti-Trafficking Convention provides for the establishment of a monitoring mechanism that will supervise its implementation by the member States. It consists of two pillars: (i) the Group of Experts on Action against Trafficking in Human Beings (“GRETA”) – a group of independent experts, and (ii) the Committee of the Parties – a political body composed of the representatives of all States parties to the Convention. 171. Following the first evaluation round of the Convention, GRETA devoted a part, in its 4th General Report (2015), to stock-taking. It noted, inter alia, as regards investigation, prosecutions and sanctions on human-trafficking cases, as follows: “One of the purposes of the Convention is to ensure the effective investigation and prosecution of trafficking offences. GRETA’s evaluation of 35 parties to the Convention reveals that there is an important gap between the number of identified victims of trafficking and the number of convictions. GRETA’s reports refer to a variety of reasons for this gap: over-reliance of victims’ statements, issues around credibility of witnesses who may change their statements over time, or difficulties in relation to the sufficiency of evidence ... Investigators, prosecutors and judges who are not specialized and trained to deal with trafficking cases may be prejudiced vis-à-vis victims of trafficking and insensitive to the problems experienced by them. ... GRETA has urged 17 countries to address gaps in the investigation and the presentation of trafficking in human being cases in court with a view to improving the conviction rate and securing sentences proportionate to the seriousness of the crime. In this context, GRETA has stressed the need to improve the training and specialization of judges, prosecutors, police investigators and lawyers regarding trafficking in human beings and the rights of victims of trafficking, stressing the severe impact of exploitation on victims and the importance of ensuring that victims are prepared psychologically before they give statements.” 172. Croatia has been subject to two rounds of evaluations by GRETA. In its second evaluation report published on 4 February 2016 GRETA considered that since the adoption of its first report on Croatia in 2011, progress had been made in a number of areas but that there remained some issues which gave rise to concern. It therefore urged the Croatian authorities, inter alia, as follows: “[T]ake additional steps to ensure that all victims of trafficking are identified as such and can benefit from the assistance and protection measures contained in the Convention, in particular by: - taking steps so that law enforcement officials, social workers, NGOs and other relevant actors adopt a more proactive approach and increase their outreach work to identify victims of human trafficking for the purpose of sexual exploitation; - to take additional legislative and practical measures to ensure that: - trafficking in human beings cases are investigated proactively, prosecuted successfully and lead to effective, proportionate and dissuasive sanctions; - the offence of trafficking in human beings is excluded from the plea bargaining procedure.” Relevant material of the Committee of Ministers and the Parliamentary Assembly 173. In Recommendation 1325 (1997) on traffic in women and forced prostitution in Council of Europe member States, the Parliamentary Assembly, defined traffic in women and forced prostitution as follows: “2. ... [A]ny legal or illegal transporting of women and/or trade in them, with or without their initial consent, for economic gain, with the purpose of subsequent forced prostitution, forced marriage, or other forms of forced sexual exploitation. The use of force may be physical, sexual and/or psychological, and includes intimidation, rape, abuse of authority or a situation of dependence.” 174. Considering trafficking in women and forced prostitution to be a form of inhuman and degrading treatment and a flagrant violation of human rights, it recommended that the Committee of Ministers elaborate a convention on traffic in women and forced prostitution. 175. The Committee of Ministers in its Recommendation No. R (2000) 11 on action against trafficking in human beings for the purpose of sexual exploitation, noted that trafficking in human beings for the purpose of sexual exploitation, which mainly concerned women and young persons, might result in slavery for the victim and recommended, inter alia, that member States review their legislation and practice in line with the measures described in the appendix to the recommendation. 176. In Recommendation Rec (2002) 5 on the protection of women against violence, the Committee of Ministers reminded States, inter alia, of their obligation to exercise due diligence to prevent, investigate and punish acts of violence, whether those acts were perpetrated by the State or private persons, and provide protection to victims. In its appendix, it is stated that the term “violence against women” encompasses, amongst other things, instances of trafficking in women for the purposes of sexual exploitation. 177. The Parliamentary Assembly in its Recommendation 1545 (2002) on a campaign against trafficking in women noted that “in European societies trafficking is a very complex subject which is closely linked to prostitution and hidden forms of exploitation, such as domestic slavery, catalogue marriages and sex tourism”. It therefore called on all European countries to develop common policies and actions covering all aspects of this problem, such as introducing effective punishment of traffickers. 178. In its Recommendation 1815 (2007) entitled “Prostitution – which stance to take?”, the Parliamentary Assembly stated that all necessary measures must be taken to combat forced prostitution and trafficking in human beings. It further noted as follows: “Regarding adult voluntary prostitution, the Assembly encourages the Committee of Ministers to recommend that Council of Europe member states formulate an explicit policy on prostitution. In particular, they must avoid double standards and policies which criminalise and penalise prostitutes.” 179. On 11 June 2008, in its reply to the Parliamentary Assembly Recommendation 1815 (2007), the Committee of Ministers noted as follows: “[T]he approaches adopted in the 47 member states of the Council of Europe vary widely in this field. For this reason, a common policy on prostitution can only be formulated with great difficulty at this stage ...” 180. Finally, in its Resolution 1983 (2014) on prostitution, trafficking and modern slavery, the Parliamentary Assembly expressed, inter alia, the following views: “3. Although they are distinct phenomena, trafficking in human beings and prostitution are closely linked. It is estimated that 84% of trafficking victims in Europe are forced into prostitution; similarly, victims of trafficking represent a large share of sex workers ... [C]onsidering the significant overlap between the two phenomena, the Assembly believes that legislation and policies on prostitution are indispensable anti-trafficking tools. ... 5. Legislation and policies with regard to prostitution vary across Europe, ranging from legalisation to criminalisation of prostitution-related activities. ... 6. Forced prostitution and sexual exploitation should be considered as violations of human dignity and, as women are disproportionately represented among victims, as an obstacle to gender equality. ... 8. The Assembly acknowledges that different legal approaches and cultural sensitivities make it difficult to propose a single model of prostitution regulations that would fit all member States. It believes, however, that human rights should be the main criteria in designing and implementing policies on prostitution and trafficking. 9. Irrespective of the model chosen, legislators and law-enforcement officials should be aware of their responsibility to ensure that sex workers, where prostitution is legalised or tolerated, may carry out their activity in dignified conditions, free from coercion and exploitation, and that the protection needs of those who are victims of trafficking can be adequately identified and addressed. 11. Furthermore, in all cases, the authorities should refrain from considering prostitution regulations as a substitute for comprehensive action aimed specifically at human trafficking, based on a sound legal and policy framework and implemented effectively ... 12. In the light of these considerations, the Assembly calls on Council of Europe member ... States ... to: ... 12.1.3. criminalise pimping, if they have not already done so;” Other international instrumentsInternational humanitarian law International humanitarian law International humanitarian law 181. Article 27 of the Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, 12 August 1949, reads, inter alia, as follows: “Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.” 182. In its commentary, “enforced prostitution” is defined as “the forcing of a woman into immorality by violence or threats”. 183. Likewise, Article 75 § 2 (b) of Protocol Additional (I) to the Geneva Conventions relating to the Protection of Victims of International Armed Conflicts and Article 4 § 2 (e) of Protocol Additional (II) to the Geneva Conventions relating to the Protection of Victims of Non ‑ International Armed Conflicts (8 June 1977), prohibit enforced prostitution at any time and in any place whatsoever. 184. Article 7 § 1 (g) of the Rome Statute of the International Criminal Court of 17 July 1998 included “enforced prostitution” as a crime against humanity. The Rome Statute Elements of Crimes define this concept in the following manner: “1. The perpetrator caused one or more persons to engage in one or more acts of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent. 2. The perpetrator or another person obtained or expected to obtain pecuniary or other advantage in exchange for or in connection with the acts of a sexual nature. 3. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 4. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.” The Organisation for Security and Co-operation in Europe (“the OSCE”) 185. On 3 December 2003 the OSCE’s Ministerial Council adopted Decision No. 2/03 on Combatting Trafficking in Human Beings in which it endorsed the OSCE Action Plan to Combat Trafficking in Human Beings and decided to establish an OSCE mechanism to provide assistance to participating States to combat trafficking in human beings. As a result, a Special Representative and Co-ordinator for Combating Trafficking in Human Beings was established. 186. The Action Plan, which is based on the Palermo Protocol definition of trafficking in persons, intends to provide participating States with a comprehensive toolkit to help them implement their commitments to combating trafficking in human beings. In this respect, it requires at the national level, for example, the following: “2.7 Encouraging investigators and prosecutors to carry out investigations and prosecutions without relying solely and exclusively on witness testimony. Exploring alternative investigative strategies to preclude the need for victims to be required to testify in court.” 187. In 2013 an Addendum to the OSCE Action Plan was adopted by the Ministerial Council Decision No. 7/13. The Addendum aimed to address the current and emerging trends and patterns in trafficking in human beings, as well as the most pressing challenges relating to the prosecution of the crime, its prevention, and the protection of trafficked persons. In this connection, it held, in particular, that recommended action at the national level included: “1.2 Enhancing the criminal justice responses to human trafficking, including the prosecution of traffickers and their accomplices, while ensuring that victims are treated in a manner that respects their human rights and fundamental freedoms and that they are provided with access to justice, to legal assistance and to effective remedies and other services as applicable. ... 1.1. ... [R]elevant State authorities identify individuals as trafficked persons, who have suffered human rights abuses, as soon as there are reasonable grounds to believe that they have been trafficked, and, in accordance with national law, ensure that victims of trafficking in human beings are provided with assistance even before the investigation is initiated ...” Relevant regional instrumentsInter-American system Inter-American system Inter-American system 188. Article 6 of the American Convention on Human Rights (“the ACHR”) guarantees “Freedom from Slavery” and reads, insofar as relevant, as follows: “1. No one shall be subject to slavery or to involuntary servitude, which are prohibited in all their forms, as are the slave trade and traffic in women. 2. No one shall be required to perform forced or compulsory labor ...” 189. Another key instrument is the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (“Convention of Belem Do Para”). Article 2 of this Convention states that: “Violence against women shall be understood to include physical, sexual and psychological violence: ... b. that occurs in the community and is perpetrated by any person, including, among others, rape, sexual abuse, torture, trafficking in persons, forced prostitution, kidnapping and sexual harassment in the workplace, as well as in educational institutions, health facilities or any other place ...” 190. On 20 October 2016 the Inter-American Court of Human Rights (“the Inter-American Court”) adopted a judgment on Article 6 of the ACHR in the case of Trabjadores de la hacienda Brasil verde v. Brasil, which concerned a group of workers allegedly subjected to trafficking in human beings, forced labour, debt bondage and slavery in a privately-owned cattle ranch. The Inter-American Court expanded on the content and scope of the concepts of slavery, servitude, slave trade and traffic in women, as well as forced labour. It recalled, in particular, that the ACHR used the expression “slave trade and traffic in women”. However, it stressed that, considering the evolution of international law, the most favourable interpretation and the pro persona principle, that expression was to be understood as “trafficking in persons”, which would also bring its current definition into line with the Palermo Protocol. 191. On 26 September 2018, in the case of López Soto y otros v. Venezuela, the Inter-American Court found, inter alia, a violation of Article 6 of the ACHR in relation to the deprivation of liberty of a woman by a private individual who had subjected her to various acts of physical and psychological violence, notably, of a sexual nature. For the Inter-American Court, this conduct amounted to sexual slavery. African system 192. Article 5 of the African Charter on Human and Peoples’ Rights reads: “Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.” 193. In its General Comment No. 4 on the African Charter on Human and Peoples’ Rights: The Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment, the African Commission on Human and Peoples’ Rights held, inter alia, that: “57. Acts of sexual and gender based violence, or the failure by States to prevent and respond to such acts, may amount to torture and other ill-treatment in violation of Article 5 of the African Charter... 58. These include physical and psychological acts committed against victims without their consent or under coercive circumstances, such as ... trafficking for sexual exploitation, enforced prostitution, sexual slavery, sexual exploitation ... These acts may occur in public or private and include force or coercion caused by fear of violence, duress, detention, psychological oppression or abuse of power.” 194. Article 4 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa requires States to prevent and condemn trafficking in women, prosecute the perpetrators of such trafficking and protect those women most at risk. EUROPEAN UNION LAWPrimary law Primary law Primary law 195. Article 83 § 1 of the Treaty on the Functioning of the European Union (“the TFEU”) reads, inter alia, as follows: “The European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them of a common basis. These areas of crime are the following: ... trafficking in human beings and sexual exploitation of women and children ...” 196. In addition, Article 79 § 1 of the TFEU requires the Union to develop a common immigration policy aimed at the prevention of, and enhanced measures to combat illegal immigration and trafficking in human beings. 197. Article 5 of the Charter of Fundamental Rights of the European Union is worded as follows: “1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. 3. Trafficking in human beings is prohibited.” 198. According to the Explanations relating to the Charter, the right in paragraphs 1 and 2 of Article 5 corresponds to paragraphs 1 and 2 of Article 4 of the Convention and that therefore it has the same meaning and scope as set out therein. As regards paragraph 3 of Article 5 it states as follows: “Paragraph 3 stems directly from human dignity and takes account of recent developments in organized crime, such as the organisation of lucrative illegal immigration or sexual exploitation networks. The Annex to the Europol Convention contains the following definition which refers to trafficking for the purpose of sexual exploitation: ‘traffic in human beings: means subjection of a person to the real and illegal sway of other persons by using violence or menaces or by abuse of authority or intrigue with a view to the exploitation of prostitution, forms of sexual exploitation and assault of minors or trade in abandoned children’. ... On 19 July 2002, the Council adopted a framework decision on combating trafficking in human beings (OJ L 203, 1.8.2002, p. 1) whose Article 1 defines in detail the offences concerning trafficking in human beings for the purposes of labour exploitation or sexual exploitation, which the Member States must make punishable by virtue of that framework decision.” Secondary legislationDirective 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims (“the Anti ‑ trafficking Directive”) Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims (“the Anti ‑ trafficking Directive”) Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims (“the Anti ‑ trafficking Directive”) 199. The Anti ‑ Trafficking Directive aims to prevent trafficking, to effectively prosecute criminals and to protect the victims. In this regard, the recitals to the Anti-Trafficking Directive state the following: “(1) Trafficking in human beings is a serious crime, often committed within the framework of organised crime, a gross violation of fundamental rights and explicitly prohibited by the Charter of Fundamental Rights of the European Union. Preventing and combating trafficking in human beings is a priority for the Union and the Member States. ... (18) It is necessary for victims of trafficking in human beings to be able to exercise their rights effectively. Therefore assistance and support should be available to them before, during and for an appropriate time after criminal proceedings. Member States should provide for resources to support victim assistance, support and protection.” 200. As regards the definition of trafficking in human beings, Article 2 of the Directive, in so far as relevant, reads as follows: “1. Member States shall take the necessary measures to ensure that the following intentional acts are punishable: The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. 2. A position of vulnerability means a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved. 3. Exploitation shall include, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs. 4. The consent of a victim of trafficking in human beings to the exploitation, whether intended or actual, shall be irrelevant where any of the means set forth in paragraph 1 has been used.” 201. Article 4 of the Anti-Trafficking Directive stipulates, in so far as relevant, that the relevant offence under Article 2 is punishable by a maximum penalty of at least five years, or in some instances ten years, of imprisonment. 202. As regards the investigation and prosecution of the crime of trafficking in human beings, Article 9 of the Anti-Trafficking Directive reads: “1. Member States shall ensure that investigation into or prosecution of offences referred to in Articles 2 and 3 is not dependent on reporting or accusation by a victim and that criminal proceedings may continue even if the victim has withdrawn his or her statement.” 203. In addition, Articles 11 and 12 provides for various measures of assistance and support to be provided to victims of trafficking in human beings and their protection in criminal investigations and proceedings. 204. Article 18 of the Anti-Trafficking Directive requires that Member States promote regular training for officials likely to come into contact with victims or potential victims of trafficking in human beings so that they can identify and deal with such victims and potential victims. 205. In accordance with the requirements of the Anti-Trafficking Directive (Article 20 and 23 §§ 1 and 2), the European Commission, following the adoption of the Directive, has provided the European Parliament and the Council with a number of reports. 206. In its first report on the progress made in the fight against trafficking in human beings dated 19 May 2016, the Commission noted, inter alia, the following: “Increasing the number of investigations and prosecutions is one of the key priorities of the EU legal and policy framework addressing trafficking in human beings. However, it is also one of the key challenges reported by the Member States. In fact, trafficking in human beings is a crime often difficult and costly to detect and investigate. The investigations in this field require a substantial body of evidence in order to reach a conviction. In particular, practitioners note that excessive burden is placed on victims and their testimonies both before and during criminal proceedings for evidence gathering, while, according to the Anti-trafficking Directive, investigative tools and approaches should ensure that victims, either acting as witness or not, are not burdened excessively during procedures that can cause secondary trauma to them ... Based on the previous Eurostat data and the latest data transmitted by the Member States for the Report, the level of prosecutions and convictions remains worryingly low, especially when compared to the number of victims identified. This trend has been also confirmed by the GRETA reports, concluding that there is an important gap between the number of identified victims of trafficking and the number of convictions, and referring to several factors such as over-reliance on victims’ statements, issues around the credibility of witnesses who may change their statements over time, difficulties in relation to the sufficiency of evidence, or non-specialised and prejudiced investigators, prosecutors and judges ... One of the main factors reported by Member States [contributing to the low level of prosecution] is related to the high evidentiary threshold applied by national courts, which leads to qualify cases of trafficking in human beings as crimes of lesser degree – such as procuring or pandering instead of trafficking for the purpose of sexual exploitation, or breach of labour laws or fraud instead of trafficking for the purpose of labour exploitation – resulting in minor convictions.” 207. In its second report on the progress made in the fight against trafficking in human beings dated 3 December 2018, the Commission noted, inter alia, the following: “Trafficking in human beings for the purpose of sexual exploitation continues to be the most reported form. In 2015-2016, there were 9 759 registered victims of sexual exploitation. i.e. over half (56%) of the registered victims who had a recorded form of exploitation, predominantly women and girls (95% of registered victims of sexual exploitation). ... Internal trafficking, within the territory of a Member State, is reported to be on the increase. Member States report that traffickers are constantly changing the ways they work, using less physical force but more psychological and emotional violence. ... In view of the ever-adjusting methods used by traffickers, Member States should ensure specialised training for professionals likely to come in contact with victims, which is adapted to the role of new information technologies, and initiatives to prevent trafficking in human beings. ... Nevertheless, trafficking in human beings remains a crime characterised by impunity for the perpetrators and those who exploit the victims. The findings of this report do not indicate that trafficking has decreased. Further, the analysis of the data reveals a tendency to identify victims of prioritised forms of exploitation, with certain categories of victims placed at the forefront of action, while others receive less attention. Information from the Member States reveals persisting complexities and a lack of progress in key areas. The Member States must therefore make it a priority to take all the necessary measures.” Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA (“The Victims’ Rights Directive”) 208. The Victims’ Rights Directive establishes minimum standards on the rights, support and protection of victims of crime. According to recital 57 of that Directive, there should be a strong presumption that victims of human trafficking within the meaning of the Anti-trafficking Directive will benefit from special protection measures. Other European Union material 209. The relevant parts of the European Parliament’s Resolution of 26 February 2014 on sexual exploitation and prostitution and its impact on gender equality (2013/2103(INI)) read as follows: “B. whereas prostitution and forced prostitution are forms of slavery incompatible with human dignity and fundamental human rights; C. whereas trafficking of persons, particularly women and children, for sexual as well as other forms of exploitation is one of the most egregious violations of human rights; whereas trafficking in human beings is growing globally, led by the increase in organised crime and its profitability; ... 1. Recognises that prostitution, forced prostitution and sexual exploitation are highly gendered issues and violations of human dignity, contrary to human rights principles, among which gender equality, and therefore contrary to the principles of the Charter of Fundamental Rights of the European Union, including the goal and the principle of gender equality; ... 10. Recognises that prostitution and forced prostitution can have an impact on violence against women in general, as research on sex buyers shows that men who buy sex have a degrading image of women ... 11. Stresses that prostituted persons are particularly vulnerable socially, economically, physically, psychologically, emotionally and in family terms, and are more at risk of violence and harm than persons engaged in any other activity ... ... 34. Believes that looking upon prostitution as legal ‘sex work’, decriminalising the sex industry in general and making procuring legal is not a solution to keeping vulnerable women and under-age females safe from violence and exploitation, but has the opposite effect and puts them in danger of a higher level of violence, while at the same time encouraging prostitution markets – and thus the number of women and under-age females suffering abuse – to grow ...” COMPARATIVE LAW 210. According to the information available to the Court concerning the legislation of thirty-nine Council of Europe member States (Albania, Armenia, Austria, Azerbaijan, Bosnia and Herzegovina, the Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Hungary, Iceland, Ireland, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Montenegro, the Netherlands, North Macedonia, Norway, Poland, Portugal, Romania, the Russian Federation, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine, and the United Kingdom) across Europe there is a universal recognition that human trafficking involving sexual exploitation is a serious crime. In all thirty-nine member States human trafficking is criminalised. Similarly, all member States criminalise compelling another person to provide sexual services (forced prostitution). 211. The majority of member States surveyed criminalise the involvement in the provision by another person of sexual services even where there is no coercion on the person providing the services. The exceptions are Germany, the Netherlands, Slovenia, Spain and Switzerland. 212. The member States have different approaches to identifying the existence of coercion; the constitutive elements of compulsion in national legislation are not uniform. The threat of physical violence is the most commonly identified indicator of coercion. Some other indicators are, for instance, blackmail, deceit, fraud, false promises, taking advantage of the victim’s vulnerability, restriction of movement, abduction, and abusing a position of power. THE LAW THE GOVERNMENT’S PRELIMINARY OBJECTIONS 213. The Government raised preliminary objections concerning in part the scope of the case before the Court, and in part the admissibility of the applicant’s complaint. Scope of the caseThe parties’ submissions The parties’ submissions The parties’ submissions (a) The Government 214. The Government pointed out that in her application to the Court, in so far as it was declared admissible, the applicant, who was legally represented, relied on Articles 3 and 8 but not on Article 4 of the Convention. Although the Government accepted that the Court could reclassify a complaint under a different Article than the one relied on by an applicant, they did not consider that such a possibility existed in the present case. Moreover, the Government considered that the applicant’s complaint concerned only the outcome of the criminal proceedings. It did not involve any other procedural aspect as the applicant’s arguments in that respect were very general and abstract. (b) The applicant 215. The applicant stressed that she had been identified as a victim of human trafficking by the Human Rights Office (see paragraph 85 above) and that she had pointed to that fact in her application form. She also argued that she had complained before the Court of a failure of the domestic authorities to comply with their procedural obligation and to investigate the case properly. In the applicant’s view, her complaints undoubtedly raised an issue under Article 4 of the Convention and gave an opportunity to the Court to assess whether the domestic authorities had complied with their procedural obligation under that provision. The Court’s assessment 216. At the outset, the Court reiterates that the “case” referred to the Grand Chamber necessarily embraces all aspects of the application previously examined by the Chamber in its judgment. The “case” referred to the Grand Chamber is the application as it has been declared admissible, as well as the complaints that have not been declared inadmissible (see Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, § 58, 15 November 2018, and Ilias and Ahmed v. Hungary [GC], no. 47287/15, § 177, 21 November 2019). 217. Furthermore, for the purpose of Article 32 of the Convention the scope of a case “referred to” the Court in the exercise of the right of individual application is determined by the applicant’s complaint. A complaint consists of two elements: factual allegations and legal arguments (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018). 218. By virtue of the jura novit curia principle the Court is not bound by the legal grounds adduced by the applicant under the Convention and the Protocols thereto and has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles or provisions of the Convention that are different from those relied upon by the applicant (see, for instance, ibid.; Navalnyy, cited above, § 65; and, most recently, Molla Sali v. Greece [GC], no.. 20452/14, § 85, 19 December 2018). 219. The Court cannot, however, base its decision on facts that are not covered by the complaint, it being understood that, even if the Court has jurisdiction to review circumstances complained of in the light of the entirety of the Convention or to “view the facts in a different manner”, it is nevertheless limited by the facts presented by the applicants in the light of national law. However, this does not prevent an applicant from clarifying or elaborating upon his or her initial submissions during the Convention proceedings. The Court has to take account not only of the original application but also of the additional documents intended to complete the latter by eliminating any initial omissions or obscurities. Likewise, the Court may clarify those facts ex officio (see Radomilja and Others, cited above, §§ 121-22 and 126). 220. In the case at hand in her initial application to the Court the applicant pointed to the fact that she had been identified as a victim of human trafficking (see paragraph 215 above) and that T.M. had been prosecuted for forced exploitation of prostitution against her. The applicant also briefly explained the course of the domestic proceedings, which had eventually led to T.M.’s acquittal due to the fact that the domestic courts had not found that he had forced her into prostitution. In the light of these facts – albeit not set out in a completely coherent manner – the applicant raised an issue of the State’s procedural obligation complaining, in particular, of impunity for the acts of abuse to which T.M. had allegedly subjected her. She stressed that it was the State’s responsibility to investigate criminal acts and subsequently to conduct proceedings against the relevant individuals and, if they were found guilty, to punish them in accordance with the law. In her view, this meant that the State must put in place an effective criminal justice system. The applicant further argued that if the domestic courts had considered that T.M. had not forced her into prostitution, they should have convicted him at least of the procuring of prostitution under the relevant domestic law. The applicant also complained of a lack of appropriate assistance provided to her as a victim during the proceedings. Lastly, the applicant argued that procuring prostitution, as a form of gender-based violence, should not go unpunished. The applicant relied on Articles 3, 6, 8 and 14 of the Convention and Article 1 of Protocol No. 12. 221. On 9 February 2015 the Government were given notice of the applicant’s complaints, in so far as relevant and admissible, under Articles 3, 4 and 8 of the Convention. 222. In her further submissions before the Chamber, the applicant stressed the authorities’ procedural obligation under the Convention. She also argued that her allegations of forced prostitution before the domestic authorities had been justified. Also, in reply to the Government’s submission, she elaborated on the domestic legal framework and argued that it was inadequate to address the problem of human trafficking. Moreover, in her view, the relevant domestic authorities had failed to recognise her case as human trafficking and had erroneously subsumed her allegations under a provision relating to forced prostitution. In particular, she argued that T.M. should have been prosecuted and convicted for human trafficking under Article 175 of the Criminal Code. In any event, in her view, even if he had been erroneously prosecuted for procuring prostitution using coercion under Article 195 § 3 of the Criminal Code (and not human trafficking), after the domestic courts had found the element of coercion not to be established they should have convicted him at least under Article 195 § 2 of the Criminal Code (procuring of prostitution). The fact that T.M. had eventually been acquitted showed, in the applicant’s view, the lack of an effective application of the criminal-law mechanisms in her case. The applicant also insisted that she had not been provided with adequate assistance or with the possibility of participating effectively in the proceedings as a victim of human trafficking. 223. On the basis of the above submissions, the Chamber declared the communicated complaints (Articles 3, 4 and 8) admissible but examined the case under Article 4 of the Convention only (see paragraph 36 and the first operative provision of the Chamber judgment; see also paragraphs 244-49 below). 224. Having regard to the above circumstances, the Court is of the view that there is no reason for it to decline jurisdiction in respect of the complaints declared admissible by the Chamber. The applicant expressly relied, and elaborated, on Articles 3 and 8 of the Convention. Her complaints (see paragraphs 220 and 222 above) undoubtedly raised an issue which the Court, by virtue of the jura novit curia principle and in view of its case-law (see paragraph 218 above; see also, for instance, V.T. v. France, no. 37194/02, § 35, 11 September 2007; Rantsev v. Cyprus and Russia, no. 25965/04, §§ 272-82, ECHR 2010 (extracts); and L.E. v. Greece, no. 71545/12, § 58, 21 January 2016), could seek to determine whether it fell to be characterised under Article 4 of the Convention. This is, of course, without prejudice to the discussion on the actual applicability and scope of protection guaranteed under that provision. 225. Further, the Court is not persuaded by the Government’s argument that the applicant’s complaint concerned only the outcome of the proceedings. Having regard to the case taken as a whole, the Court finds that the factual elements of the applicant’s initial complaint and their elaboration in the applicant’s further submissions (see paragraphs 220 and 222 above) are sufficiently broad to cover different aspects of the domestic authorities’ procedural obligation to apply the relevant criminal-law mechanisms effectively. 226. Indeed, according to the Court’s case-law, impunity may derive from different causes. In particular, in so far as relevant for the present case, it may result from the failures of the relevant prosecuting authorities and criminal courts effectively to elucidate and address all the (often subtle) elements of conduct contrary to the Convention (see, for instance, Chowdury and Others v. Greece, no. 21884/15, §§ 117-27, 30 March 2017). 227. Moreover, reference may be made to the Court’s case-law which shows that it is prepared to take into account any particular investigative omissions it considers relevant in the context of its overall assessment of an applicant’s procedural complaint concerning the ineffective application of criminal-law mechanisms (see, for instance, C.N. v. the United Kingdom, no. 4239/08, §§ 47-52 and 80, 13 November 2012, where the Court found fault with the domestic authorities’ failure to question one of the central witnesses in the case although the applicant had not raised that issue in her arguments before the Court; see also M. and Others v. Italy and Bulgaria, no. 40020/03, §§ 86 and 104, 31 July 2012, where the Court identified certain witnesses who needed to be questioned in order for the domestic authorities to meet their procedural obligation under the Convention). 228. Having regard to the above, and in so far as the applicant’s submissions relate to a deficiency in the application of the relevant criminal-law mechanisms, which eventually allegedly led to impunity, the Court is of the view that such claims are sufficiently broad to allow it to examine whether, on the whole and on the basis of the particular aspects of the case it considers relevant, there has been a breach of the domestic authorities’ procedural obligation under the Convention. 229. In sum, the Court dismisses the Government’s objection concerning the scope of the case. It finds that the “scope” of the case before it, in terms of its legal characterisation, raises legal issues under Articles 3, 4 and 8 of the Convention. As to the factual scope of the case, the Court notes that the applicant’s complaint raises issues of alleged impunity for human trafficking, forced or alternatively non-forced prostitution relating to a deficient application of the relevant criminal-law mechanisms. It is thus essentially of a procedural nature. This finding, as already stressed above, is without prejudice to the further assessment and conclusion as to the actual applicability and scope of protection guaranteed under the Convention for the acts complained of by the applicant. Preliminary objections on admissibilityThe parties’ submissions The parties’ submissions The parties’ submissions (a) The Government 230. The Government argued that the application was inadmissible under Article 35 of the Convention. They contended that Article 4 was inapplicable in the present case and that, in any event, the applicant’s complaint should be declared inadmissible as it concerned an issue of outcome, where the Court’s power of review was limited. 231. As regards the applicability of Article 4, the Government did not contest that this provision applies to various forms of human trafficking. However, they considered that the Court should adopt a clear position on the issue of human trafficking by defining the meaning of that concept and the material scope of Article 4 in that regard. In any event, in their view, there was no human trafficking in the present case as the element of “means” of human trafficking, as conceived in the international definition of that phenomenon, was missing. In particular, the Government considered that the applicant had not been subjected to any threat, or to the use of force, or other forms of coercion. 232. In this respect, the Government relied on the findings of fact by the domestic courts, which, in the Government’s view, were relevant for determining the applicability of Article 4. Moreover, the Government argued that some other elements of human trafficking were missing. In particular, the Government pointed out that T.M. had not confiscated the applicant’s papers, that he had not deprived her of her liberty, that she had had her mobile phone and the possibility to contact others, that she had not been without any income as she had shared her earnings with T.M., and that she had voluntarily decided to engage in prostitution in order to earn money. The Government also argued that the fact that the applicant had been recognised as a victim of human trafficking by the relevant domestic services could in no way be interpreted as implying that she had been subjected to human trafficking within the meaning of the criminal law. 233. The Government also considered that a situation where an individual benefited from the prostitution of another without any use of force or coercion could not fall within the scope of Article 4 as that would extend the scope of Article 4 beyond the international definition of human trafficking. Such a position would bring uncertainty as regards the scope of Article 4 and would also run counter to the spirit of that provision and the Court’s earlier case-law on the matter (referring to V.T. v. France, cited above). Moreover, it would mean that all forms of prostitution were prohibited conduct under Article 4. Such a position could raise an issue as regards the practice of those States that had not criminalised prostitution and could lower the rights of the victims, who also enjoyed protection under Articles 3 and 8 of the Convention. In sum, in the Government’s view, no issue could arise under Article 4 with regard to the fact that T.M. had not been convicted of the offence of procuring prostitution. (b) The applicant 234. The applicant stressed that the allegations she had made before the prosecuting authorities (the police and the State Attorney’s Office) and later before the criminal court undoubtedly showed that she had been a victim of human trafficking and that she had raised an issue under Article 4 of the Convention. In this connection, the applicant also pointed out that she had been recognised as a victim of human trafficking at the domestic level; this finding had not had, and should not have had, only an administrative character but was also of importance in the sphere of criminal law. 235. In this connection, the applicant also found it relevant that in their submissions before the Chamber the Government had argued that the recognition of her status as a victim of human trafficking at the domestic level, coupled with the measures of assistance and support, amounted to a loss of her victim status under Article 34 of the Convention (see § 41 of the Chamber judgment). Thus, the applicant found unconvincing the Government’s submissions before the Grand Chamber in which they had essentially changed their mind as to the importance of the recognition of her status as a victim of human trafficking. 236. In the applicant’s view, the procedural response of the prosecuting authorities, including the criminal courts, to her allegations had been inadequate and contrary to the requirements of Articles 3, 4 and 8 of the Convention. In particular, due to their lack of sensitivity concerning the matter, the domestic authorities had failed properly to recognise her allegations as involving human trafficking and had thus failed properly to discharge their procedural obligation under Article 4 of the Convention. The Court’s assessment 237. The Grand Chamber is not precluded from examining, where appropriate, questions concerning the admissibility of an application under Article 35 § 4 of the Convention, as that provision enables the Court to dismiss applications it considers inadmissible “at any stage of the proceedings”. Therefore, even at the merits stage and subject to Rule 55 of the Rules of Court, the Court may reconsider a decision to declare an application admissible where it concludes that it should have been declared inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Convention (see, for instance, Muršić v. Croatia [GC], no. 7334/13, § 69, 20 October 2016). 238. The Court notes in the present case that the Government essentially raised two preliminary objections concerning the admissibility of the applicant’s complaints. The first concerns the applicability of the guarantees under Article 4, which the Court finds more appropriate to address following an assessment of the scope of protection under that provision and on the basis of a careful assessment of the particular circumstances of the case at hand. The Court therefore joins this objection to the merits. 239. The second limb of the Government’s objection could be interpreted as an invitation to the Court to declare the applicant’s complaints inadmissible as manifestly ill-founded given that, in the Government’s view, they simply concern dissatisfaction with the outcome of the proceedings (see paragraph 230 above). However, the Court considers that the applicant’s complaints raise complex issues relating to the interpretation of, in particular, Article 4 of the Convention and cannot be considered manifestly ill-founded. Accordingly, the Court finds this second limb of the Government’s objection unfounded. It should therefore be dismissed (compare Zubac v. Croatia [GC], no. 40160/12, §§ 52-55, 5 April 2018). ALLEGED VIOLATION OF ARTICLE 4 OF THE CONVENTION 240. The applicant alleged that the domestic authorities had failed effectively to apply the relevant criminal-law mechanisms concerning her allegations of human trafficking, forced or alternatively non-forced prostitution, contrary to their obligations under Articles 3, 4 and 8 of the Convention. 241. Having regard to its current case-law and the nature of the applicant’s complaint, the Court is of the view that the issues raised in the present case should be addressed from the perspective of Article 4 of the Convention. It is true that similar issues may arise under Article 3 (see V.T. v. France, cited above, § 26, and M. and Others v. Italy and Bulgaria, cited above, § 106) and potentially also under Article 8 of the Convention (see V.C. v. Italy, no. 54227/14, §§ 84-85, 1 February 2018). However, the Court notes that in its case-law it has tended to apply Article 4 to issues related to human trafficking (see Rantsev, cited above, §§ 252 and 336; C.N. and V. v. France, no. 67724/09, § 55, 11 October 2012; C.N. v. the United Kingdom, cited above, § 84; and J. and Others v. Austria, no. 58216/12, § 123, 17 January 2017). 242. The Court considers that this approach allows it to put the possible issues of ill-treatment (under Article 3) and abuse of the applicant’s physical and psychological integrity (under Article 8) into their general context, namely that of trafficking in human beings and sexual exploitation. Indeed, allegations of ill-treatment and abuse are inherently linked to trafficking and exploitation, whenever that is the alleged purpose for which the ill-treatment or abuse was inflicted (see, in general, Rantsev, cited above, § 252, and C.N. and V. v. France, cited above, § 55). It follows that the applicant’s allegations (see paragraph 240 above) fall to be examined under Article 4 of the Convention. 243. Accordingly, being the master of the characterisation to be given in law to the facts of a case (see, for instance, Molla Sali, cited above, § 85), the Court will examine the present case under Article 4 of the Convention, which, in so far as relevant, reads as follows: “1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. ...” The Chamber judgment 244. The Chamber noted that the applicant had alleged before the domestic authorities that she had been psychologically and physically forced by T.M. to participate in a prostitution ring organised by him. This had led to the recognition of her status as a victim of human trafficking by the national authorities. In addition, the national courts had established as uncontested that T.M. had given the applicant a mobile telephone for the purpose of clients’ contacting her for sexual services and that T.M. had driven the applicant to the clients or that she had provided sexual services in the flat she had occupied together with him. 245. In these circumstances, the Chamber considered it unnecessary to identify whether the treatment of which the applicant complained constituted slavery, servitude or forced or compulsory labour. Instead, it concluded that trafficking itself as well as exploitation of prostitution, within the meaning of Article 3 (a) of the Palermo Protocol, Article 4 (a) of the Anti-Trafficking Convention, Article 1 of the 1949 Convention and the CEDAW, fell within the scope of Article 4 of the Convention. 246. The Chamber thus decided to assess the present case under Article 4 of the Convention. In this connection, it also noted that it was irrelevant that the applicant was actually a national of the respondent State and that there had been no international element since Article 2 of the Anti ‑ Trafficking Convention encompassed “all forms of trafficking in human beings, whether national or transnational” and the 1949 Convention referred to exploitation of prostitution in general. 247. Relying, in particular, on the general principles developed by the Court in Rantsev (cited above, §§ 272-89), the Chamber considered that the applicant’s complaints had three aspects and assessed them separately. The first aspect was whether there was an appropriate legal and regulatory framework at the domestic level; the second was whether the applicant had been provided with appropriate assistance and support to alleviate the fear and pressure she had felt while testifying against T.M.; and the third was whether in the application of that framework in the applicant’s particular case the national authorities had complied with their procedural obligations. 248. As to the first aspect of the complaint, the Chamber was satisfied that at the time the alleged offence had been committed and prosecuted there had been an adequate legal framework at the domestic level concerning trafficking in human beings, forced prostitution and exploitation of prostitution. With regard to the second aspect of the complaint, the Chamber considered that the applicant had been provided with adequate support and assistance. 249. As regards the third aspect of the complaint, the Chamber held that there had been no indication that the national authorities had made a serious attempt to investigate in depth all the circumstances relevant for assessing whether T.M. had forced the applicant into prostitution. Also, the Chamber considered that the domestic courts’ assessment of the applicant’s statement had not taken into account the possible impact of psychological trauma on the applicant’s ability to consistently and clearly relate the circumstances of her exploitation. In these circumstances, the Chamber considered that the relevant State authorities had not fulfilled their procedural obligation and thus found a violation of Article 4 of the Convention. The parties’ submissionsThe applicant The applicant The applicant 250. The applicant contended that the prosecuting authorities had erroneously characterised her allegations, which undoubtedly suggested that she had been a victim of trafficking, as an issue of forced prostitution. Relying on different monitoring reports in respect of Croatia, the applicant argued that there was a general issue in relation to the conduct of the domestic authorities who tended to classify charges of human trafficking as an offence of procuring prostitution, which left many instances of trafficking unpunished. 251. The applicant further argued that when submitting her complaint to the domestic authorities, she had provided all relevant details of the case and identified witnesses who could have provided further information concerning her allegations. According to the applicant, when she had submitted her complaint, the prosecuting authorities had advised her that she had done everything she could and that they were taking over the investigation. Ultimately, however, out of five possible witnesses concerning the events, the prosecuting authorities had only questioned one. 252. In this connection, the applicant also stressed that at the time of the events she had not trusted the system and had decided to report the events to the police due to T.M.’s threats relating to her family. Moreover, at the time when the criminal proceedings took place she had been seriously afraid of T.M., who had threatened her after she had run away from him. In such circumstances, she had decided to tell her story to the relevant court only after she had been provided with legal assistance by the Rosa Centre. However, according to the applicant, that legal assistance had not been part of the State legal aid but an assistance provided by a non-governmental organisation at the request of the applicant’s mother. 253. In these circumstances, it could not be said that she had been passive during the proceedings as she had given her statements three times, provided detailed information about the events and identified all possible witnesses. Thus, in her view, as a victim of human trafficking she could not have been expected to do more. In particular, it would be unreasonable to expect that she should take the position of the State Attorney’s Office, which was ex officio obliged to conduct the relevant criminal proceedings effectively. 254. The applicant also contended that the State Attorney’s Office and the criminal court had failed to ensure, each within their scope of competence and if needed in cooperation with each other, that the relevant measures were taken so that the offence against her did not remain unpunished. In her view, they should have reclassified the charges against T.M. so as to ensure that he was punished at least for the basic form of procuring prostitution. However, the State Attorney’s Office and the criminal court had remained passive, shifting the responsibility from one to another. Moreover, the domestic courts had demonstrated a lack of sensitivity towards the emotional trauma suffered by the victims of human trafficking and its impact on their capacity to relate all details of the case. This ultimately resulted in a situation in which she, as a victim of human trafficking, had been left unprotected by the authorities from T.M.’s actions. It also opened the door to the possibility of her future abuse by T.M. given that he was, as was clear from M.I.’s evidence, obsessed with her (the applicant). 255. In sum, relying also on her submissions during the Chamber proceedings, the applicant considered that the domestic criminal-law mechanisms as applied in the case at hand were defective to the point of constituting a violation of the State’s positive obligations under Article 4 of the Convention. The Government 256. The Government argued that there was no deficiency in the domestic legal framework concerning the issue of human trafficking or other related conduct. In this connection, the Government stressed that the domestic authorities were making continuous efforts to strengthen the administrative and operational practices aimed at enhancing the fight against trafficking in human beings. Thus, so far a total of 117 judges and prosecutors had finished training on the issues of human trafficking and specialised courses on the matter were also part of the training given to the police. In particular, as regards those involved in the present case, the prosecutor who first questioned T.M. (see paragraph 23 above) had attended two one-day training sessions on human trafficking in February 2005 and November 2009. The trial judge had attended two one-day training sessions on the matter in September 2003 and February 2005, while one of the judges sitting in the appeal court had conducted a one-day training course in November 2013. Moreover, the Government argued that in recent years the number of identified victims of human trafficking was increasing and so was the number of convictions for human trafficking. 257. The Government also submitted, relying on the Chamber’s findings (see paragraph 248 above), that the applicant had been provided with all the relevant services of protection, support and assistance, which was all in compliance with the relevant GRETA recommendations. Moreover, the Government pointed out that the applicant had not made any complaint in this regard before the domestic authorities. 258. As regards the authorities’ compliance with their procedural obligation, the Government considered that the domestic authorities had diligently investigated the case on the basis of the applicant’s allegations by collecting all the relevant evidence in this regard. In this connection, the Government pointed out that the applicant had been legally represented throughout the proceedings and that she had never proposed any evidence to be taken by the authorities or made any complaint in that regard. 259. Moreover, in the Government’s view, the domestic courts had adopted their decision on the basis of the established facts and their findings could not be considered arbitrary. In particular, even assuming that non ‑ coerced exploitation of prostitution fell under Article 4, the domestic courts could not be criticised for not reclassifying the State Attorney’s indictment from forced exploitation of prostitution to that form as that would entail an unjustified interference with the nature and cause of the accusations against the accused. The third-party interveners (a) The Council of Europe Group of Experts on Action against Trafficking in Human Beings (“GRETA”) 260. GRETA stressed that one of the core objectives of the Anti ‑ Trafficking Convention was to ensure the effective investigation and prosecution of trafficking offences. However, GRETA’s country monitoring revealed that there was a significant disparity between the number of identified victims of trafficking, on the one hand, and the number of prosecutions and convictions, on the other hand. The identified reasons for this were numerous and included, in particular, overreliance on victims’ statements, issues related to the credibility of witnesses who might change their statements over time, or difficulties in relation to the sufficiency of evidence. In this connection, GRETA pointed out that victims were sometimes afraid or reluctant to make depositions because of threats of revenge from the perpetrators or lack of trust in the effectiveness of the criminal justice system. 261. At the same time, in some trafficking cases, as research from the field showed, the only evidence available to the court was the victim’s testimony and the defendant’s denial. In such cases, the courts were called upon to decide whether the victim’s testimony sufficed to convict a defendant, even when his or her allegations were denied by the defendant and it was a word-against-word situation. GRETA stressed that a failure of the prosecution to support the victim’s statement with other evidence, such as testimonial evidence of customers served by victims, neighbours who might be able to provide facts about the victim’s situation, NGO members who could testify about the psychological state of victims, expert opinions or financial investigations, might lead to the exoneration of the defendant. 262. One of the important reasons for such an outcome was a lack of training and specialisation of investigators, prosecutors, judges and lawyers on the matters of human trafficking, which could lead them to be prejudiced vis-à-vis victims of trafficking and insensitive to the problems experienced by them. Thus, GRETA had repeatedly stressed the need to improve the training and specialisation of those involved in cases concerning human trafficking. 263. The same was true for Croatia. In the country monitoring of Croatia, GRETA noted that prosecutions for the offence of trafficking in human beings had been rare, that victims had not been properly informed of and assisted in the use of their rights, and that victims had been reluctant to cooperate with the criminal justice authorities. Moreover, GRETA’s findings suggested that judges were reportedly not sufficiently aware of the particular vulnerability of victims of human trafficking. GRETA had also been provided with examples of cases where other offences, in particular procuring prostitution, had been prosecuted instead of human trafficking, and perpetrators had been given lighter sentences in such cases, as well as instances where victims of sexual exploitation acting as witnesses had not been treated with the required sensitivity. GRETA had thus, in particular, repeatedly insisted on increased training for judges and public prosecutors on the legislation concerning trafficking in human beings. 264. GRETA also stressed that one of the measures to fight trafficking in human beings included the necessity to ensure protection of victims and witnesses of human trafficking, as provided for in the Anti-Trafficking Convention. GRETA had thus made recommendations to the Croatian authorities concerning this matter as well. 265. Lastly, GRETA elaborated, in particular, on the issue of “abuse of vulnerability” as one of the “means” of human trafficking. GRETA stressed that establishing the existence of victim vulnerability was important for many aspects of a trafficking case, as vulnerability could be a critical indicator when identifying victims, and accurate assessment of vulnerability could help to ensure that victim witnesses were appropriately supported and protected. In criminal prosecutions, both the existence of vulnerability and the abuse of that vulnerability should be established by credible evidence. In this context, GRETA also referred to a UNODC study according to which the mere existence of vulnerability might suffice to satisfy the means element and thereby help support a conviction. Thus, GRETA had insisted in the country evaluation procedures that the “abuse of vulnerability” be properly addressed. In sum, GRETA stressed that evidence of an abuse of a position of vulnerability might be less tangible than for other means used to commit a human-trafficking offence, such as the use of force. It was therefore important to involve specialists, such as psychologists, social workers or NGO representatives working with victims of trafficking, at the investigative phase to ensure that evidence was effectively and appropriately collected and presented at the trial. (b) Clinique doctorale de droit international des droits de l’homme (Faculté de droit d’Aix-en-Provence) 266. The third-party intervener pointed out that forced prostitution could be considered as a form of forced labour and that force or coercion in this context could be of different kinds, such as psychological, physical or financial. In such instances, when there was force or coercion, any consent of the victim was excluded. In the intervener’s view, when related to human trafficking and to the practices associated with slavery, prostitution should be characterised as slavery (sexual slavery) within the meaning of Article 4 of the Convention. This conclusion followed from the Court’s case-law which made reference to the issue of modern day slavery and it also followed from other international jurisdictions such as the Inter-American Court, the Special Tribunal for Sierra Leone and the International Criminal Court. Indeed, in the intervener’s view, such an approach was consistent with the international definition and approach to slavery. 267. Furthermore, the third-party intervener argued that when prostitution was exploited by others for economic gain it amounted to trafficking. However, “exploitation” in this context had to be associated with a de facto exertion of coercion. Thus, even if a person voluntarily engaged in prostitution, his or her abuse by a third party would be indicative of some form of coercion into prostitution. 268. The third-party intervener also argued that persons engaged in prostitution belonged to a vulnerable group and that this applied in particular to women, as was recognised in various international instruments. Such vulnerability was in some cases further exacerbated by economic constraints or the race of the victim. Thus, an intersectional approach was needed to address the issue of vulnerability. For instance, at the national level in France, it was recognised that abuse of vulnerability referred to a totality of situations of distress that could lead a person to accept his or her exploitation. In the intervener’s view, this vulnerability needed to be taken into account in the context of the duty to investigate and in the context of the taking and assessment of the victim’s evidence. In particular, in connection with the latter aspect, the third-party intervener stressed that it was a well-known fact that the victim’s evidence could be incoherent and contradictory as a result of the treatment to which the victim had been subjected and that this was insufficient to conclude that the victim had provided false evidence. Thus, emphasis should be placed on the essential aspects of the victim’s evidence and it was important to obtain further evidence concerning the impugned situation. (c) Research Centre L’altro diritto onlus (University of Florence) 269. The third-party intervener argued that it was a common understanding in international law that the Palermo Protocol, when read in conjunction with its parent Convention against Transnational Organized Crime, required criminalisation not only of trans-border but also of internal trafficking. Indeed, the most recent UNODC Global reports on trafficking in persons pointed out that victims who had been detected within their own borders represented the largest part of the victims detected worldwide. Moreover, the Anti-Trafficking Convention explicitly included within the definition of human trafficking instances of internal trafficking. The European Union Anti-Trafficking Directive also covered internal and cross-border trafficking. 270. In this connection, the third-party intervener stressed that, as it followed from the UNODC material, “movement” was not a necessary requirement of the definition of human trafficking. That definition also included instances, such as receipt and harbouring, which did not involve movement. Thus, the third-party intervener considered that it was important that the Court recognise both internal and cross-border trafficking as the constituent elements of the phenomenon of trafficking in human beings. 271. The third-party intervener further submitted that the issue of “exploitation of prostitution” could not be taken out of the context of human trafficking as done by the Chamber in the present case. In this connection, the intervener stressed that the issues of prostitution and exploitation of prostitution raised some very sensitive questions on which opinions differed, in particular between those who saw prostitution as being a degrading and exploitive practice in itself and others who saw it as a form of work. In this context, the domestic practices also differed and in the V.T. v. France case (cited above) the Court had not wished to take a stance on this particular matter. In these circumstances, in the intervener’s view, when relying on the 1949 Convention, which had a very ambivalent approach towards prostitution and exploitation of prostitution, the Chamber judgment had essentially raised an issue of the Court’s neutrality in this debate. (d) Group of researchers Bénédicte Bourgeois (University of Michigan), Marie-Xavière Catto (University Paris I Panthéon-Sorbonne) and Michel Erpelding (Max Planck Institute Luxembourg for Procedural Law) 272. The third-party interveners firstly stressed that, due to different historical and legal reasons, under general international law the notions of slavery, forced labour and servitude were imperfectly compartmentalised concepts. However, under international human rights law these phenomena were addressed within single provisions and their general and unconditional prohibition was clearly proclaimed. As regards the Court’s approach to these phenomena, the third-party interveners considered its case-law as representing a “gradation model” where slavery was not considered to be a distinct phenomenon from forced labour but the most severe form of it, while servitude constituted an intermediate form of abuse. For the interveners, the Court had a wide judicial discretion in interpreting the definitions used in early instruments concerning slavery, servitude and forced or compulsory labour when taken in the context of individual human rights protection. 273. The third-party interveners further submitted that the three legal concepts mentioned in Article 4 of the Convention (slavery, servitude and forced or compulsory labour) pertained to different forms of human exploitation, as followed from the Court’s case-law in Siliadin v. France (no. 73316/01, ECHR 2005 ‑ VII). However, they noted that in the Rantsev case (cited above), the Court had brought an additional concept within the ambit of Article 4: that of human trafficking. For the interveners, there was no doubt that the concept of human trafficking was inherently linked to that of human exploitation. Indeed, the blameworthiness of human trafficking stemmed from its purpose, namely severe exploitation of human beings. Thus, there was no doubt that such conduct fell within the scope of Article 4 of the Convention. However, the third-party interveners asserted that the Court’s reasoning in Rantsev was incoherent as it confused the concepts of human trafficking and slavery. Moreover, noting the Rantsev approach, the third-party interveners argued that there were many uncertainties in the scope of these concepts relating, in particular, to the threshold of severity attached to particular conduct. 274. The third-party interveners also pointed out that the international definition of human trafficking did not define the element of sexual exploitation. In particular, during the preparatory work on the Palermo Protocol several national delegations had wanted to distinguish victims of prostitution from those who had chosen to engage in prostitution. It was finally decided to leave the concept undefined. Eventually, however, UNODC had attempted to define the concept of “exploitation of prostitution of others” but linked it to an issue of unlawfulness in domestic law (see paragraph 117 above). For the third-party interveners, this created a problem of circular reasoning and the risk that States through their national laws might preclude characterising a particular situation as exploitation. In the intervener’s view, from the perspective of international human rights law this was unacceptable and thus the Court needed to have recourse to its autonomous concept doctrine in order to define “exploitation”. 275. Lastly, the third-party interveners stressed that the concept of forced prostitution was a similar, but in practice distinct, matter from rape or sexual slavery. The concept of forced prostitution implied a financial gain for its perpetrator. In the third-party interveners’ view, the Court might consider drawing inferences from the definition of forced prostitution in international criminal law in order to define this concept in international human rights law. The Court’s assessmentIntroductory remarks Introductory remarks Introductory remarks 276. The Court has not so far had many opportunities to consider the extent to which treatment associated with human trafficking and/or exploitation of prostitution falls within the scope of the Convention. At the same time, trafficking in human beings and exploitation of prostitution as global phenomena are receiving significantly more attention in recent years. As the overview of international material shows, different international legal instruments and supervision mechanisms have dealt with these issues and elaborated on the central tenets of their effective prevention and suppression. 277. Regard being had to the parties’ submissions and the third-party interveners’ comments, the present case allows the Court to clarify certain aspects of its case-law on human trafficking for the purpose of exploitation of prostitution. It also requires the Court to address the statement in paragraph 54 of the Chamber judgment according to which “trafficking itself as well as exploitation of prostitution ... fall within the scope of Article 4 of the Convention” (emphasis added). 278. The Court will now address the question of the material scope of Article 4 of the Convention. In this connection, it will first give an overview of the relevant standards relating to the three concepts enunciated under Article 4 (slavery, servitude and forced or compulsory labour). Secondly, it will address the issue of trafficking in human beings under Article 4 of the Convention. Thirdly, it will turn to the question of “exploitation of prostitution” under that provision. The Court will then address the States’ positive obligations under Article 4 of the Convention. Scope of Article 4 of the Convention (a) The three concepts enunciated under Article 4 of the Convention 279. Article 4 refers to three concepts: slavery, servitude and forced or compulsory labour. However, as the Court has already observed in its case-law, the Convention does not define any of them (see Van der Mussele v. Belgium, 23 November 1983, § 32, Series A no. 70, and Siliadin, cited above, §§ 121-25). Thus, in determining the material scope of Article 4 of the Convention, the Court has sought guidance in various instruments of international law dealing with these concepts. 280. In its early case-law, as regards the concept of “slavery”, the Court referred to the 1927 Convention to Suppress the Slave Trade and Slavery, which defined slavery as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised”. As to the concept of “servitude”, the Court had regard to the European Commission of Human Rights’ earlier case-law and the 1956 Convention to Suppress the Slave Trade and Slavery, according to which that concept related to a “particularly serious form of denial of freedom” and included “in addition to the obligation to perform certain services for others ... the obligation for the ‘serf’ to live on another person’s property and the impossibility of altering his condition”. In sum, having regard to these elements, the Court held that the concept of “servitude” had to be understood as “an obligation to provide one’s services that is imposed by the use of coercion” (see Siliadin, cited above, §§ 122-25). It also observed that servitude corresponded to “aggravated” forced or compulsory labour (see C.N. and V. v. France, cited above, §§ 89-91). 281. As regards the definition of “forced or compulsory labour”, in Van der Mussele (cited above, § 32) the Court noted that no clear guidance on this point was to be found in the various Council of Europe documents relating to the preparatory work of the Convention. However, the Court considered it evident that the text of Article 4 was to a large extent based on the ILO’s 1930 Forced Labour Convention (No. 29). Thus, in view of the fact that this legal instrument was binding on nearly all the member States of the Council of Europe, the Court considered that the ILO’s definition of “forced or compulsory labour” should be taken as a starting-point for the interpretation of Article 4 of the Convention (see also Siliadin, cited above, §§ 115-16, and Stummer v. Austria [GC], no. 37452/02, § 117, ECHR 2011, where the Court more recently confirmed this approach). According to this definition, “forced or compulsory labour” means all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered him or herself voluntarily (see paragraphs 140-43 above). 282. On the basis of the ILO definition, as regards the concept of “labour” under Article 4 § 2 of the Convention, the Court stressed that it should be understood in a broader sense as “all work or service”. As to the “forced or compulsory” nature of such labour, the Court noted that the adjective “forced” brought to mind the idea of physical or mental constraint and the second adjective (“compulsory”) referred to a situation where work was “exacted ... under the menace of any penalty” and also performed against the will of the person concerned, that is work for which he “has not offered himself voluntarily”. The Court also clarified that the concept of “penalty” had to be understood in a broader sense as “any” or “a” penalty. Moreover, the Court stressed that in the event of the existence of a risk comparable to “the menace of [a] penalty”, relative weight was to be attached to the argument regarding “prior consent” to an activity (see Van der Mussele, §§ 34-37; Siliadin, §§ 115-17; Stummer, § 117; and Chowdury and Others, §§ 90-91, all cited above). 283. In its subsequent case-law, the Court further clarified some of the elements of the definition of “forced or compulsory labour” set out in Van der Mussele. In particular, in the above-cited Siliadin case (§§ 114-20), in which it was called upon to elaborate on the extent to which treatment essentially associated with trafficking fell within the scope of Article 4, the Court referred to the Van der Mussele concept of “forced or compulsory labour” and further held that the concept of “a penalty” extended to any equivalent situation in terms of the perceived seriousness of the threat. With regard to the question of “consent” to the work in issue, the Court referred to the absence of a choice. 284. Moreover, in C.N. and V. v. France (cited above, § 77), relying on an ILO report, the Court elaborated on the concept of “a penalty” explaining that this concept “may go as far as physical violence or restraint, but it can also take subtler forms, of a psychological nature, such as threats to denounce victims to the police or immigration authorities when their employment status is illegal”. 285. In the recent case of Chowdury and Others (cited above, § 96), the Court elaborated on the concept of “consent” stressing that “where an employer abuses his power or takes advantage of the vulnerability of his workers in order to exploit them, they do not offer themselves for work voluntarily”. Thus, the Court further stressed that “[t]he prior consent of the victim is not sufficient to exclude the characterisation of work as forced labour” and that “[t]he question whether an individual offers himself for work voluntarily is a factual question which must be examined in the light of all the relevant circumstances of a case”. (b) Trafficking in human beings under Article 4 of the Convention 286. The most important development in the Court’s case-law on the issue of human trafficking for the purpose of sexual exploitation occurred with the adoption of its judgment in the case of Rantsev (cited above). The case concerned the alleged trafficking and death of a young Russian woman, who had been recruited to work as a “cabaret artiste” in Cyprus (which different organisations had denounced as a cover-up for prostitution) and who then died in suspicious circumstances following a conflict with the man for whom she had worked. In so far as relevant for the present case, the Rantsev case raised issues under Article 4 of the Convention. 287. In this connection, in particular, the Court noted that there was no mention of trafficking in that provision. However, having outlined the various international instruments in the field of human trafficking, the Court referred to the following interpretative principles of the Convention: “273. The Court has never considered the provisions of the Convention as the sole framework of reference for the interpretation of the rights and freedoms enshrined therein (see Demir and Baykara v. Turkey [GC], no. 34503/97, § 67, 12 November 2008). It has long stated that one of the main principles of the application of the Convention provisions is that it does not apply them in a vacuum (see Loizidou v. Turkey, 18 December 1996, Reports of Judgments and Decisions 1996-VI, and Öcalan v. Turkey [GC], no. 46221/99, § 163, ECHR 2005‑IV). As an international treaty, the Convention must be interpreted in the light of the rules of interpretation set out in the Vienna Convention of 23 May 1969 on the Law of Treaties. 274. Under that Convention, the Court is required to ascertain the ordinary meaning to be given to the words in their context and in the light of the object and purpose of the provision from which they are drawn (see Golder v. the United Kingdom, 21 February 1975, § 29, Series A no. 18; Loizidou, cited above, § 43; and Article 31 § 1 of the Vienna Convention). The Court must have regard to the fact that the context of the provision is a treaty for the effective protection of individual human rights and that the Convention must be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 48, ECHR 2005-X). Account must also be taken of any relevant rules and principles of international law applicable in relations between the Contracting Parties and the Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part (see Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001‑XI; Demir and Baykara, cited above, § 67; Saadi v. the United Kingdom [GC], no. 13229/03, § 62, ECHR 2008‑...; and Article 31 para. 3 (c) of the Vienna Convention). 275. Finally, the Court emphasises that the object and purpose of the Convention, as an instrument for the protection of individual human beings, requires that its provisions be interpreted and applied so as to make its safeguards practical and effective (see, inter alia, Soering v. the United Kingdom, 7 July 1989, § 87, Series A no. 161, and Artico v. Italy, 13 May 1980, § 33, Series A no. 37).” 288. The Court further noted that the absence of an express reference to trafficking in the Convention was unsurprising given that the Convention was inspired by the Universal Declaration of Human Rights, which only referred to “slavery and the slave trade in all their forms”. However, the Court stressed that in assessing the scope of Article 4 of the Convention, sight should not be lost of the Convention’s special features or of the fact that it was a living instrument which should be interpreted in the light of present-day conditions. Moreover, the increasingly high standards required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably required greater firmness in assessing breaches of the fundamental values of democratic societies (ibid., § 277). 289. The Court further stressed that “[i]n light of the proliferation of both trafficking itself and of measures taken to combat it, the Court considers it appropriate in the present case to examine the extent to which trafficking itself may be considered to run counter to the spirit and purpose of Article 4 of the Convention such as to fall within the scope of the guarantees offered by that Article without the need to assess which of the three types of proscribed conduct are engaged by the particular treatment in the case in question” (ibid., § 279). Finally, the Court concluded the following: “282. There can be no doubt that trafficking threatens the human dignity and fundamental freedoms of its victims and cannot be considered compatible with a democratic society and the values expounded in the Convention. In view of its obligation to interpret the Convention in light of present-day conditions, the Court considers it unnecessary to identify whether the treatment about which the applicant complains constitutes ‘slavery’, ‘servitude’ or ‘forced [or] compulsory labour’. Instead, the Court concludes that trafficking itself, within the meaning of Article 3 (a) of the Palermo Protocol and Article 4 (a) of the Anti-Trafficking Convention, falls within the scope of Article 4 of the Convention. ...” 290. In this connection, it follows from Rantsev that impugned conduct may give rise to an issue of human trafficking under Article 4 of the Convention only if all the constituent elements (action, means, purpose) of the international definition of human trafficking are present (see paragraphs 113-14 and 155-56 above). In other words, in keeping with the principle of harmonious interpretation of the Convention and other instruments of international law (see Demir and Baykara v. Turkey [GC], no. 34503/97, § 67, ECHR 2008), and in view of the fact that the Convention itself does not define the concept of human trafficking, it is not possible to characterise conduct or a situation as an issue of human trafficking unless it fulfils the criteria established for that phenomenon in international law. 291. The Court further notes that in its subsequent cases, while regularly referring to the Rantsev principles on human trafficking, it sought to provide an explanation on how the phenomenon of human trafficking falls within the scope of Article 4 of the Convention. Thus, for instance, in J. and Others v. Austria (cited above, § 104) the Court explained that the identified elements of trafficking – the treatment of human beings as commodities, close surveillance, the circumscription of movement, the use of violence and threats, poor living and working conditions, and little or no payment – cut across the three categories set out in Article 4. Similarly, in Chowdury and Others (cited above, § 93), the Court stressed that “exploitation through work is one of the forms of exploitation covered by the definition of human trafficking, and this highlights the intrinsic relationship between forced or compulsory labour and human trafficking”. 292. Having regard to these observations, the concept of human trafficking can properly be incorporated, in the Court’s view, within the scope of Article 4. Indeed, given the Convention’s special features as a human rights treaty and the fact that it is a living instrument which should be interpreted in the light of present-day conditions (see, inter alia, Khamtokhu and Aksenchik v. Russia [GC], nos. 60367/08 and 961/11, § 73, 24 January 2017), there are good reasons to accept the assertion in Rantsev that the global phenomenon of trafficking in human beings runs counter to the spirit and purpose of Article 4 and thus falls within the scope of the guarantees offered by that provision. 293. This conclusion also finds support in the comparison of the essential elements of the concepts enunciated in Article 4, as construed in the Court’s case-law (see paragraphs 279-85 above) and the constituent elements of the phenomenon of human trafficking (see paragraphs 113-17 and 155-62 above). Moreover, such an approach to the phenomenon of human trafficking is convincingly set out in the ILO materials (see paragraphs 144-45 above), which have traditionally played a key role in informing the scope of guarantees under Article 4 of the Convention (see paragraph 281 above). It should also be noted that it follows from the comparative law material available to the Court that there is universal recognition of human trafficking as a serious crime that involves, inter alia, sexual exploitation. Indeed, all thirty-nine Council of Europe member States for which the comparative information is available criminalise human trafficking (see paragraph 210 above). 294. However, it should be noted that there is an apparent difference between the Palermo Protocol and the Anti-Trafficking Convention as regards the scope of their application, the latter being applicable to all forms of trafficking in human beings, whether national or transnational, whether or not connected with organised crime, whereas the former relates to transnational trafficking involving an organised criminal group (see paragraphs 119 and 162 above). It is therefore necessary for the Court to clarify its position on this particular point. 295. In the Court’s view, there are several reasons why the approach under the Anti-Trafficking Convention should be followed. Firstly, this is dictated by the fact that excluding a group of victims of conduct characterised as human trafficking under the Anti-Trafficking Convention from the scope of protection under the Convention would run counter to the object and purpose of the Convention as an instrument for the protection of individual human beings, which requires that its provisions be interpreted and applied so as to make its safeguards practical and effective (see, for instance, Güzelyurtlu and Others v. Cyprus and Turkey [GC], no. 36925/07, § 234, 29 January 2019). In this connection it should be noted, as follows from the international material and as pointed out by one of the third-party interveners (see paragraph 269 above), that internal trafficking is currently the most common form of trafficking. Secondly, the Court has already held that the member States’ positive obligations under Article 4 of the Convention must be construed in the light of the Council of Europe’s Anti ‑ Trafficking Convention (see Chowdury and Others, cited above, § 104). Thirdly, the limited definitional scope of the Palermo Protocol is relative as, when read in conjunction with its parent instrument (UNCTOC), the Protocol in fact proscribes trafficking irrespective of a transnational element or the involvement of an organised criminal group (see paragraphs 111 and 120 above). 296. Thus, the Court finds that from the perspective of Article 4 of the Convention the concept of human trafficking covers trafficking in human beings, whether national or transnational, whether or not connected with organised crime, in so far as the constituent elements of the international definition of trafficking in human beings, under the Anti-Trafficking Convention and the Palermo Protocol, are present. 297. Such conduct or such a situation of human trafficking then falls within the scope of Article 4 of the Convention. This, however, does not exclude the possibility that, in the particular circumstances of a case, a particular form of conduct related to human trafficking may also raise an issue under another provision of the Convention (see, for instance, M. and Others v. Italy and Bulgaria, cited above, §§ 106-07; see also paragraph 241 above). (c) “Exploitation of prostitution” under Article 4 of the Convention 298. It is important to note at the outset that, as also stressed by the third-party intervener L’altro diritto onlus (see paragraph 271 above), the current discussion on the “exploitation of prostitution” opens up some very sensitive issues relating to the approach to prostitution in general. In particular, there are different, often conflicting, views as to whether prostitution as such can ever be consensual or is always a coercive form of exploitation. In this context, it should be noted that prostitution is approached differently in different legal systems depending on the relevant society’s understanding of it (see paragraph 180 above). 299. In V.T. v. France (cited above, §§ 24-27 and 35), as the only case so far addressing this particular issue, the Court noted the substantial differences in legal systems concerning the approach to prostitution. In the circumstances of that case, the Court did not consider it relevant to enter into the debate whether prostitution in itself was contrary to, in particular, Article 3 of the Convention. However, it stressed that prostitution was incompatible with the dignity of a person if it was coerced. It held that it was where a person was coerced to engage in, or continue with, prostitution that an issue arose under Article 3. Similarly, as regards Article 4 of the Convention, the Court found that in the absence of coercion of the applicant to continue with prostitution, she could not be considered to have been compelled to perform “forced or compulsory labour” within the meaning of that provision. 300. Relying on the above analysis of its case-law under Article 4 of the Convention (see paragraphs 281-85 above), the Court finds that the notion of “forced or compulsory labour” under Article 4 of the Convention aims to protect against instances of serious exploitation, such as forced prostitution, irrespective of whether, in the particular circumstances of a case, they are related to the specific human-trafficking context. Moreover, any such conduct may have elements qualifying it as “servitude” or “slavery” under Article 4, or may raise an issue under another provision of the Convention (see paragraphs 241 and 280 above). 301. In this context, it is important to stress that “force” may encompass the subtle forms of coercive conduct identified in the Court’s case-law on Article 4 (see paragraphs 281-85 above), as well as by the ILO and in other international materials (see, in particular, paragraphs 141-44 above). 302. The Court would also point out that the question whether a particular situation involves all the constituent elements of “human trafficking” (action, means, purpose) and/or gives rise to a separate issue of forced prostitution is a factual question which must be examined in the light of all the relevant circumstances of a case. (d) Conclusion on the material scope of Article 4 303. In conclusion, having regard to the above considerations, the Court finds the following: (i) Human trafficking falls within the scope of Article 4 of the Convention. This, however, does not exclude the possibility that, in the particular circumstances of a case, a particular form of conduct related to human trafficking may raise an issue under another provision of the Convention (see paragraph 297 above); (ii) It is not possible to characterise conduct or a situation as an issue of human trafficking under Article 4 of the Convention unless the constituent elements of the international definition of trafficking (action, means, purpose), under the Anti-Trafficking Convention and the Palermo Protocol, are present. In this connection, from the perspective of Article 4 of the Convention, the concept of human trafficking relates to both national and transnational trafficking in human beings, irrespective of whether or not connected with organised crime (see paragraph 296 above); (iii) The notion of “forced or compulsory labour” under Article 4 of the Convention aims to protect against instances of serious exploitation, such as forced prostitution, irrespective of whether, in the particular circumstances of a case, they are related to the specific human-trafficking context. Any such conduct may have elements qualifying it as “slavery” or “servitude” under Article 4, or may raise an issue under another provision of the Convention (see paragraphs 300-01 above); (iv) The question whether a particular situation involved all the constituent elements of “human trafficking” and/or gives rise to a separate issue of forced prostitution is a factual question which must be examined in the light of all the relevant circumstances of a case (see paragraph 302 above). States’ positive obligations under Article 4 of the Convention (a) The scope of the States’ positive obligations concerning human trafficking and forced prostitution 304. At the outset, the Court notes that the cases relating to human trafficking under Article 4 typically involve an issue of the States’ positive obligations under the Convention. Indeed, the applicants in these cases are normally victims of trafficking or trafficking-related conduct by another private party, whose actions cannot attract the direct responsibility of the State (see J. and Others v. Austria, cited above, §§ 108-09). 305. The nature and scope of the positive obligations under Article 4 are comprehensively set out in the Rantsev case. The general principles summarised in Rantsev represent the central tenets of the existing case-law and to date represent the relevant Convention framework within which cases of, or related to, human trafficking are examined. These principles read as follows: “283. The Court reiterates that, together with Articles 2 and 3, Article 4 enshrines one of the basic values of the democratic societies making up the Council of Europe (see Siliadin, cited above, § 82). Unlike most of the substantive clauses of the Convention, Article 4 [§ 1] makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation. 284. In assessing whether there has been a violation of Article 4, the relevant legal or regulatory framework in place must be taken into account (see, mutatis mutandis, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 93, ECHR 2005 ‑ VII). The Court considers that the spectrum of safeguards set out in national legislation must be adequate to ensure the practical and effective protection of the rights of victims or potential victims of trafficking. Accordingly, in addition to criminal-law measures to punish traffickers, Article 4 requires member States to put in place adequate measures regulating businesses often used as a cover for human trafficking. Furthermore, a State’s immigration rules must address relevant concerns relating to encouragement, facilitation or tolerance of trafficking (see, mutatis mutandis, Guerra and Others v. Italy, 19 February 1998, §§ 58-60, Reports of Judgments and Decisions 1998 ‑ I; Z and Others v. the United Kingdom [GC], no. 29392/95, §§ 73-74, ECHR 2001 ‑ V; and Nachova and Others, cited above, §§ 96 ‑ 97 and 99-102). 285. In its Siliadin judgment, the Court confirmed that Article 4 entailed a specific positive obligation on member States to penalise and prosecute effectively any act aimed at maintaining a person in a situation of slavery, servitude or forced or compulsory labour (cited above, §§ 89 and 112). In order to comply with this obligation, member States are required to put in place a legislative and administrative framework to prohibit and punish trafficking. The Court observes that the Palermo Protocol and the Anti-Trafficking Convention refer to the need for a comprehensive approach to combat trafficking which includes measures to prevent trafficking and to protect victims, in addition to measures to punish traffickers ... It is clear from the provisions of these two instruments that the Contracting States, including almost all of the member States of the Council of Europe, have formed the view that only a combination of measures addressing all three aspects can be effective in the fight against trafficking ... Accordingly, the duty to penalise and prosecute trafficking is only one aspect of member States’ general undertaking to combat trafficking. The extent of the positive obligations arising under Article 4 must be considered within this broader context. 286. As with Articles 2 and 3 of the Convention, Article 4 may, in certain circumstances, require a State to take operational measures to protect victims, or potential victims, of trafficking (see, mutatis mutandis, Osman [ v. the United Kingdom, 28 October 1998, § 115, Reports of Judgments and Decisions 1998 ‑ VIII]; and Mahmut Kaya v. Turkey, no. 22535/93, § 115, ECHR 2000 ‑ III). In order for a positive obligation to take operational measures to arise in the circumstances of a particular case, it must be demonstrated that the State authorities were aware, or ought to have been aware, of circumstances giving rise to a credible suspicion that an identified individual had been, or was at real and immediate risk of being, trafficked or exploited within the meaning of Article 3 (a) of the Palermo Protocol and Article 4 (a) of the Anti-Trafficking Convention. In the case of an answer in the affirmative, there will be a violation of Article 4 of the Convention where the authorities fail to take appropriate measures within the scope of their powers to remove the individual from that situation or risk (see, mutatis mutandis, Osman, cited above, §§ 116-17, and Mahmut Kaya, cited above, §§ 115-16). 287. Bearing in mind the difficulties involved in policing modern societies and the operational choices which must be made in terms of priorities and resources, the obligation to take operational measures must, however, be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities (see, mutatis mutandis, Osman, cited above, § 116). It is relevant to the consideration of the proportionality of any positive obligation arising in the present case that the Palermo Protocol, signed by both Cyprus and the Russian Federation in 2000, requires States to endeavour to provide for the physical safety of victims of trafficking while in their territories and to establish comprehensive policies and programmes to prevent and combat trafficking ... States are also required to provide relevant training for law enforcement and immigration officials ... 288. Like Articles 2 and 3, Article 4 also entails a procedural obligation to investigate situations of potential trafficking. The requirement to investigate does not depend on a complaint from the victim or next of kin: once the matter has come to the attention of the authorities they must act of their own motion (see, mutatis mutandis, Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 69, ECHR 2002 ‑ II). For an investigation to be effective, it must be independent from those implicated in the events. It must also be capable of leading to the identification and punishment of individuals responsible, an obligation not of result but of means. A requirement of promptness and reasonable expedition is implicit in all cases but where the possibility of removing the individual from the harmful situation is available, the investigation must be undertaken as a matter of urgency. The victim or the next of kin must be involved in the procedure to the extent necessary to safeguard their legitimate interests (see, mutatis mutandis, Paul and Audrey Edwards, cited above, §§ 70-73).” 306. It follows from the above that the general framework of positive obligations under Article 4 includes: (i) the duty to put in place a legislative and administrative framework to prohibit and punish trafficking; (ii) the duty, in certain circumstances, to take operational measures to protect victims, or potential victims, of trafficking; and (iii) a procedural obligation to investigate situations of potential trafficking. In general, the first two aspects of the positive obligations can be denoted as substantive, whereas the third aspect designates the States’ (positive) procedural obligation. 307. This latter obligation, which is in issue in the present case, will be elaborated in further detail below. Moreover, given the conceptual proximity of human trafficking and forced prostitution under Article 4, the Court considers that the relevant principles relating to human trafficking are accordingly applicable in cases concerning forced prostitution (see, mutatis mutandis, C.N. v. the United Kingdom, cited above, §§ 65-69, concerning domestic servitude). (b) States’ procedural obligations concerning human trafficking and forced prostitution 308. The procedural obligation under Article 4 of the Convention, as an element of the broader concept of positive obligations, essentially relates to the domestic authorities’ duty to apply in practice the relevant criminal-law mechanisms put in place to prohibit and punish conduct contrary to that provision (see, for instance, Rantsev, § 288, and Chowdury and Others, § 116, both cited above). As will be elaborated further below, this entails the requirements of an effective investigation concerning allegations of treatment contrary to Article 4 of the Convention. 309. The content of this procedural obligation concerning instances of human trafficking was set out in general in the Rantsev case (cited above, § 288). It draws largely on the Court’s well-established case-law concerning the domestic authorities’ procedural obligation, as developed under Articles 2 and 3 of the Convention (see paragraph 305 above). Indeed, ever since the Siliadin case (cited above, § 89), the converging principles of the procedural obligation under Articles 2 and 3 of the Convention (see Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 314, ECHR 2014 (extracts)) have traditionally informed the requirements of the procedural obligation under Article 4 (see Rantsev, § 288; M. and Others v. Italy and Bulgaria, §§ 157-58; L.E. v. Greece, § 68; J. and Others v. Austria, § 123; and Chowdury and Others, § 116, all cited above). 310. In the Court’s view, given that Article 4, together with Articles 2 and 3, enshrines one of the basic values of the democratic societies making up the Council of Europe (see Siliadin, § 82, and Rantsev, § 283, both cited above; see also Stummer, cited above, § 116), there are no grounds for revisiting this well-established approach concerning the procedural obligation under Article 4 of the Convention. Moreover, as already explained above, these principles are accordingly applicable to instances of forced prostitution (see paragraph 307 above). 311. Accordingly, given that, as already noted, the procedural obligation under the converging principles of Articles 2 and 3 informs the specific content of the procedural obligation under Article 4 of the Convention, and in view of the fact that Rantsev referred only to the most general aspects of this obligation (see paragraph 305 above), the Court finds it important to set out, in so far as relevant and appropriate, some further principles of its case ‑ law in this regard. 312. It should be noted at the outset that whereas the general scope of the State’s positive obligations might differ between cases where the treatment contrary to the Convention has been inflicted through the involvement of State agents and cases where violence is inflicted by private individuals, the procedural requirements are similar (see Denis Vasilyev v. Russia, no. 32704/04, § 100, 17 December 2009, and, more recently, Milena Felicia Dumitrescu v. Romania, no. 28440/07, § 52, 24 March 2015, and Hovhannisyan v. Armenia, no. 18419/13, § 55, 19 July 2018). 313. These procedural requirements primarily concern the authorities’ duty to institute and conduct an effective investigation. As explained in the Court’s case-law, that means instituting and conducting an investigation capable of leading to the establishment of the facts and of identifying and – if appropriate – punishing those responsible (see Jeronovičs v. Latvia [GC], no. 44898/10, § 103, 5 July 2016, and Tsalikidis and Others v. Greece, no. 73974/14, § 86, 16 November 2017; see also Rantsev, cited above, § 288). 314. In this connection it is important to stress that, in accordance with their procedural obligation, the authorities must act of their own motion once the matter has come to their attention. In particular, they cannot leave it to the initiative of the victim to take responsibility for the conduct of any investigatory procedures (see, for instance, Bouyid v. Belgium [GC], no. 23380/09, § 119, ECHR 2015, and Abdurakhmanova and Abdulgamidova v. Russia, no. 41437/10, § 76, 22 September 2015; see also Rantsev, § 288; C.N. v. the United Kingdom, § 69; L.E. v. Greece, § 68; and J. and Others v. Austria, § 107, all cited above). 315. The procedural obligation is a requirement of means and not of results (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 173, 14 April 2015, and Dimitar Shopov v. Bulgaria, no. 17253/07, § 48, 16 April 2013; see also Rantsev, § 288; C.N. v. the United Kingdom, § 69; L.E. v. Greece, § 68; and J. and Others v. Austria, § 107, all cited above). There is no absolute right to obtain the prosecution or conviction of any particular person where there were no culpable failures in seeking to hold perpetrators of criminal offences accountable (see A, B and C v. Latvia, no. 30808/11, § 149, 31 March 2016, with further references). Thus, the fact that an investigation ends without concrete, or with only limited, results is not indicative of any failings as such (see, for instance, Brecknell v. the United Kingdom, no. 32457/04, § 66, 27 November 2007). Moreover, the procedural obligation must not be interpreted in such a way as to impose an impossible or disproportionate burden on the authorities (see J. and Others v. Austria, cited above, § 107). 316. Nevertheless, the authorities must take whatever reasonable steps they can to collect evidence and elucidate the circumstances of the case. In particular, the investigation’s conclusions must be based on thorough, objective and impartial analysis of all relevant elements. Failing to follow an obvious line of inquiry undermines to a decisive extent the investigation’s ability to establish the circumstances of the case and the identity of those responsible (see Hentschel and Stark v. Germany, no. 47274/15, § 94, 9 November 2017, with further references; see also J. and Others v. Austria, cited above, § 107). 317. As to the level of scrutiny to be applied by the Court in this regard, it is important to stress that, although the Court has recognised that it must be cautious in taking on the role of a first-instance tribunal of fact where this is not rendered unavoidable by the circumstances of a particular case, it has to apply a “particularly thorough scrutiny” even if certain domestic proceedings and investigations have already taken place (see Bouyid, cited above, § 85, with further references; see also Aktaş v. Turkey, no. 24351/94, § 271, ECHR 2003 ‑ V (extracts), and Y. v. Slovenia, no. 41107/10, § 96, ECHR 2015 (extracts)). 318. In the context of Articles 2 and 3, the Court has held that any deficiency in the investigation which undermines its capability of establishing the circumstances of the case or the person responsible is liable to fall foul of the required measure of effectiveness (see, in the context of Article 2, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 113, ECHR 2005 ‑ VII, and Armani da Silva v. the United Kingdom [GC], no. 5878/08, § 233 in fine, 30 March 2016; see also, in the context of Article 3, Denis Vasilyev, § 100, and Milena Felicia Dumitrescu, § 52, both cited above). However, in this regard, it is not possible to reduce the variety of situations which might occur to a bare checklist of acts of investigation or other simplified criteria (see Mustafa Tunç and Fecire Tunç, cited above, § 176). 319. In other words, compliance with the procedural obligation must be assessed on the basis of several essential parameters (see Bouyid, cited above, §§ 118-23; see also Rantsev, § 288, and Chowdury and Others, §§ 89 and 116, both cited above), including those mentioned above (see paragraphs 313-16 above). These elements are interrelated and each of them, taken separately, does not amount to an end in itself. They are criteria which, taken jointly, enable the degree of effectiveness of the investigation to be assessed (see Mustafa Tunç and Fecire Tunç, cited above, § 225, and Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 171, 25 June 2019; see also Sarbyanova-Pashaliyska and Pashaliyska v. Bulgaria, no. 3524/14, § 37, 12 January 2017). 320. The above approach under Articles 2 and 3 corresponds in essence to the Court’s approach in Siliadin (cited above, § 130), where it stressed that the possible defects in the relevant proceedings and the decision ‑ making process must amount to significant flaws in order to raise an issue under Article 4 (see also, for instance, M.G.C. v. Romania, no. 61495/11, §§ 60-61, 15 March 2016, concerning sexual abuse under Articles 3 and 8 of the Convention). In other words, the Court is not concerned with allegations of errors or isolated omissions but only significant shortcomings in the proceedings and the relevant decision ‑ making process (see, for the relevant analysis, Söderman v. Sweden [GC], no. 5786/08, §§ 90-91, ECHR 2013), namely those that are capable of undermining the investigation’s capability of establishing the circumstances of the case or the person responsible. Application of the above principles to the present case (a) Whether the circumstances of the present case gave rise to an issue under Article 4 of the Convention 321. At the outset, the Court notes that the Government contested that the circumstances of the present case gave rise to an issue under Article 4 of the Convention (see paragraphs 230 and 238 above). 322. In this connection, and having regard to the parties’ arguments relating to the recognition of the applicant’s status as a potential victim of human trafficking (see paragraphs 232 and 235 above), the Court first finds it necessary to clarify that administrative recognition of the status of a potential victim of human trafficking cannot be taken as recognition that the elements of the offence of human trafficking have been made out. Such special treatment of a potential victim of human trafficking does not necessarily presuppose an official confirmation that the offence has been established, and may be independent of the authorities’ duty to investigate. Indeed, (potential) victims need support even before the offence of human trafficking is formally established; otherwise, this would run counter to the whole purpose of victim protection in trafficking cases. The question whether the elements of the crime are present has to be answered in subsequent criminal proceedings (see J. and Others v. Austria, cited above, § 115). In this connection, the Court would also stress the necessity of the protection of the rights of the suspects or accused, in particular the right to the presumption of innocence and other fair-trial guarantees under Article 6 of the Convention (see, for instance, Schatschaschwili v. Germany [GC], no. 9154/10, §§ 101 and 103-04, ECHR 2015). 323. Accordingly, having regard to the above considerations, the Court cannot attach decisive importance to the fact that the applicant obtained administrative recognition of the status of a victim of human trafficking from the Human Rights Office (see paragraph 85 above). 324. The Court further notes, as regards the applicability of the protection under Article 4 in relation to human trafficking or forced prostitution, that when an applicant’s complaint is essentially of a procedural nature as in the present case, it must examine whether, in the circumstances of a particular case, the applicant made an arguable claim or whether there was prima facie evidence ( commencement de preuve ) of her having been subjected to such prohibited treatment (see, to that effect, C.N. v. the United Kingdom, § 72, and J and Others v. Austria, §§ 112-13, both cited above; see also Rantsev, cited above, § 288, where reference is made to the situations of “potential trafficking”). This corresponds in essence to the Court’s approach in other cases concerning, in particular, Article 3 of the Convention (see, for instance, Hassan v. the United Kingdom [GC], no. 29750/09, § 62, ECHR 2014; Bouyid, cited above, § 124; and Beganović v. Croatia, no. 46423/06, § 68, 25 June 2009). 325. In this connection, a conclusion as to whether the domestic authorities’ procedural obligation arose has to be based on the circumstances prevailing at the time when the relevant allegations were made or when the prima facie evidence of treatment contrary to Article 4 was brought to the authorities’ attention and not on a subsequent conclusion reached upon the completion of the investigation or the relevant proceedings (see C.N. v. the United Kingdom, cited above, § 72; compare Mustafa Tunç and Fecire Tunç, cited above, §§ 132-34, concerning Article 2, and Alpar v. Turkey, no. 22643/07, § 42, 26 January 2016, concerning Article 3). This is particularly true when there are allegations that such conclusions and the relevant domestic proceedings were marred by significant procedural flaws. Indeed, relying on such domestic findings and conclusions would entail a risk of creating a circular reasoning resulting in a case concerning an arguable claim or prima facie evidence of treatment contrary to Article 4 remaining outside the Court’s scrutiny under the Convention. 326. In the present case, the applicant complained before the domestic authorities that she had been forced into prostitution by T.M. She explained how initially he had contacted her via Facebook and that on that occasion T.M. had presented himself as a friend of her parents and promised to help her finding a job. She also explained that she had had no reason to question T.M.’s intentions and continued exchanging messages with him, which eventually led to a first situation where he had insisted on her providing sexual services to others. On that occasion, according to the applicant’s allegations, T.M. had assured her that she would be doing that only until he found her a proper job. However, according to the applicant, T.M. had afterwards started exerting pressure on her by the use of force, threats and close monitoring. He had also made the necessary arrangements for the provision of her sexual services by securing accommodation, transportation and other facilities, such as by providing her with a mobile phone and advertising her services. The applicant also stated that T.M. had taken half the money she had charged for the provision of sexual services (see paragraphs 12-17 above). 327. The preliminary police investigation concerning the applicant’s allegations led to a search of T.M.’s premises and his car, during which the police found condoms, two automatic rifles with ammunition, a hand grenade and a number of mobile phones (see paragraph 19 above). In addition, it was established during the preliminary investigation that T.M. had been trained as a policeman and that he had been convicted of procuring prostitution using force, and of rape (see paragraphs 20-21 above). During T.M.’s first questioning, he denied forcing the applicant into prostitution but admitted that he had on one occasion used force against her and also stated that he had lent her money for the flat she had rented (see paragraph 23 above). On the basis of the applicant’s complaint and the results of the preliminary investigation, a further investigation was conducted by the State Attorney’s Office (see paragraphs 24-37 above). 328. In the Court’s view, the above circumstances clearly indicate that the applicant made an arguable claim and that furthermore there was prima facie evidence that she had been the victim of treatment contrary to Article 4 of the Convention, as defined by the Court (see paragraph 303 above). 329. Thus, for instance, the applicant’s personal situation undoubtedly suggested that she belonged to a vulnerable group (see paragraphs 10 and 158 above), while T.M.’s position and background suggested that he was capable of assuming a dominant position over her and abusing her vulnerability for the purpose of exploitation of prostitution (see paragraphs 20-21 above). Further, the means used by T.M. when he had allegedly first contacted the applicant and recruited her is also indicative of one of the means often used by traffickers to recruit their victims. This was also true of the alleged promise of employment, accompanied by the applicant’s belief that she had no reason for concern (see paragraphs 157-58 above). 330. Moreover, the applicant’s allegations that T.M. made the necessary arrangements for her to provide sexual services by securing accommodation and other facilities suggested the elements of harbouring as one of the constituent “actions” of trafficking (see paragraphs 113-14 above). It should further be noted that T.M. admitted using force against the applicant, which required a careful and subtle assessment in the context of the “means” element of human trafficking for the purpose of exploitation of prostitution. The same is true for T.M.’s statement that he lent money to the applicant, which raised an issue of possible debt bondage as another “means” of trafficking. 331. It should also be noted that the above allegations and circumstances, which suggested, in particular, that T.M. unlawfully earned money from the provision of sexual services by the applicant in an environment where arguably he assumed a dominant position over her and had recourse to force, threats and other forms of coercion, in any event gave rise to an arguable claim and the existence of prima facie evidence of forced prostitution, which is, in itself, a prohibited form of conduct under Article 4 of the Convention (see paragraph 300 above). 332. In sum, the Court finds that the applicant made an arguable claim and that there was prima facie evidence that she had been subjected to treatment contrary to Article 4 of the Convention – human trafficking and/or forced prostitution – which in turn triggered the domestic authorities’ procedural obligation under that provision (compare C.N. v. the United Kingdom, cited above, § 72). The Court therefore dismisses the Government’s preliminary objection concerning the applicability of Article 4 of the Convention which it joined to the merits (see paragraph 238 above). (b) Compliance with the procedural obligation under Article 4 of the Convention 333. The Court reiterates that the applicant’s complaint is of a procedural nature (see paragraph 229 above). Thus, having regard to the scope of the respondent State’s positive obligations (see paragraph 306 above), in this case the Court will deal with the applicant’s complaint of a deficient response by the domestic authorities to her allegations of human trafficking and/or forced prostitution. 334. In making this assessment the Court will examine whether there were significant flaws or shortcomings in the relevant domestic proceedings and decision-making processes (see paragraph 320 above). In particular, the Court will assess whether the applicant’s allegations under Article 4 were properly investigated and subjected to careful scrutiny in accordance with the applicable standards of its case-law (see paragraphs 317-20 above). 335. However, it should be noted that the applicant did not clearly articulate her complaints as regards the relevant procedural deficiencies and omissions, a circumstance which gave rise to the question regarding the scope of the case before the Court. Thus, having regard to its findings concerning the scope of the case (see paragraphs 227-29 above), although the Court can take into account the particular procedural omissions it considers relevant in the context of its overall assessment of the applicant’s complaint, in the present case it must exercise caution when assessing the domestic authorities’ compliance with their procedural obligation under Article 4 of the Convention. In any event, in accordance with the general principles set out above, the Court will focus only on significant shortcomings in the domestic authorities’ procedural response to the applicant’s allegations of human trafficking and/or forced prostitution, namely those that were capable of undermining the investigation’s capability of establishing the relevant circumstances of the case (see paragraph 320 above). 336. In the present case, although the prosecuting authorities – namely, the police and the relevant State Attorney’s Office – reacted promptly to the applicant’s allegations against T.M., in their investigation they failed to follow some obvious lines of inquiry capable of elucidating the circumstances of the case and establishing the true nature of the relationship between the applicant and T.M. As already stressed, such a requirement follows from the domestic authorities’ procedural obligation and does not depend on an initiative of the applicant to take responsibility for the conduct of any investigatory procedures (see paragraph 314 above; see also Mihhailov v. Estonia, no. 64418/10, § 126, 30 August 2016). Indeed, as the prosecuting authorities are better placed than a victim to conduct the investigation, any action or lack of action on the part of the victim cannot justify a lack of action on the part of the prosecuting authorities (see, mutatis mutandis, Asllani v. the former Yugoslav Republic of Macedonia, no. 24058/13, § 62 in fine, 10 December 2015). 337. In this connection, for instance, it should be noted that there is no indication that the prosecuting authorities made any effort to inquire into the circumstances of the applicant’s and T.M.’s contact via Facebook, although, as noted above, such contacts represent one of the recognised ways used by traffickers to recruit their victims. Indeed, the prosecuting authorities never sought to inspect the applicant’s or T.M.’s Facebook accounts and thus to ascertain the nature of their first contact and further exchanges. Moreover, the available evidence suggested that T.M. used Facebook to threaten the applicant after she had left him (see paragraphs 37 and 67 above), but there is no indication that the authorities followed this lead to determine the real nature of their relationship and whether those threats suggested the use of a means of coercion by T.M. 338. Further, neither during the investigation nor after the relevant information surfaced during the trial did the prosecuting authorities give any consideration to obtaining evidence from the applicant’s parents, in particular the applicant’s mother. Nevertheless, the applicant’s mother appears to have had earlier contact and difficulties with T.M., which he, according to the available evidence, used as one of the means of pressure and threats towards the applicant (see paragraphs 62, 67 and 73 above). 339. The prosecuting authorities also never sought to identify and interview the owner of the flat where the applicant lived with T.M. in order to determine the circumstances in which the flat had been rented and thus to clarify who in reality was in charge of the whole rental process, which could have been relevant for establishing the potential action of “harbouring”, as an element of human trafficking. Moreover, although later in the course of the criminal proceedings the applicant stated that the owner of the flat used to come and visit the flat (see paragraph 63 above), the State Attorney’s Office did not seek to have the owner questioned in order to establish her impression of the atmosphere in the flat and the relationship between the applicant and T.M. during the critical period. 340. It is also worth noting that the prosecuting authorities did not identify and interview any of the neighbours. They too would potentially have been able to provide information on the circumstances of the applicant’s and T.M.’s stay in the flat, relating, in particular, to the question whether and how often the applicant was seen leaving the flat, whether she went outside alone without T.M., and whether and how often T.M. left the flat. All these elements could have clarified the applicant’s allegations as regards the circumstances in which she was under T.M.’s control during their stay in the flat, it being understood that the mere fact that the applicant left the flat on occasion could not conclusively mean that she was not being coerced by T.M. (compare Siliadin, cited above, § 127). 341. Against the background of the above shortcomings, it should be noted that, in addition to the search of T.M.’s flat and car and the questioning of the applicant and T.M., the only action taken by the prosecuting authorities was the questioning of the applicant’s friend, M.I. (see paragraphs 32-37 above). However, the evidence she gave during the investigation and the criminal proceedings contradicted in places some of the information provided by the applicant. Moreover, M.I.’s statement suggested that the key persons having information on the applicant’s alleged escape from T.M. were her (M.I.’s) mother and boyfriend (see paragraphs 33 and 66 above). 342. However, the prosecuting authorities never sought to question M.I.’s mother and boyfriend, who could have provided details on the applicant’s alleged escape from T.M. and whose evidence could have served to ascertain the consistency of M.I.’s statement and reliability of her oral evidence. The same is true of the applicant’s and M.I.’s contradicting statements as regards the circumstances in which the applicant collected her belongings from the flat where she had lived with T.M., which could have been clarified by questioning the owner of the flat. However, as already noted, the prosecuting authorities never sought to question the owner of the flat. 343. All these elements, in the Court’s view, suggest that the prosecuting authorities did not effectively investigate all relevant circumstances of the case or follow some of the obvious lines of inquiry in order to gather the available evidence, in accordance with their procedural obligation under Article 4. Instead, they relied heavily on the applicant’s statement and thus, in essence, created a situation in the subsequent court proceedings where her allegations simply had to be pitted against the denial of T.M., without much further evidence being presented. 344. In this connection, the Court notes the position of GRETA and other international bodies on the requirements of effective investigation and prosecution of human-trafficking offences. In particular, having regard to the prosecuting authorities’ decisive reliance on the applicant’s statement (see paragraphs 40, 80 and 92 above) and their failure to follow some of the obvious lines of inquiry, the Court notes that it has already been recognised in the work of GRETA and other expert bodies that there may be different reasons why victims of human trafficking and different forms of sexual abuse may be reluctant to cooperate with the authorities and to disclose all the details of the case. Moreover, the possible impact of psychological trauma must be taken into account. There is thus a risk of overreliance on the victim’s testimony alone, which leads to the necessity to clarify and – if appropriate – support the victim’s statement with other evidence (see paragraphs 138, 171, 206 and 260 above). 345. The Court is of the view that the above multiple shortcomings in the conduct of the case by the prosecuting authorities fundamentally undermined the domestic authorities’ – including the relevant courts’ – ability to determine the true nature of the applicant’s and T.M.’s relationship and whether the applicant had been exploited by him as she alleged (compare Makaratzis v. Greece [GC], no. 50385/99, § 77, ECHR 2004 ‑ XI). 346. This is therefore sufficient for the Court to conclude that there were significant flaws in the domestic authorities’ procedural response to the arguable claim and prima facie evidence that the applicant had been subjected to treatment contrary to Article 4 of the Convention. Accordingly, the Court finds that the manner in which the criminal-law mechanisms were implemented in the instant case was defective to the point of constituting a violation of the respondent State’s procedural obligation under Article 4 of the Convention. 347. There has therefore been a violation of Article 4 of the Convention in its procedural limb. APPLICATION OF ARTICLE 41 OF THE CONVENTION 348. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 349. Before the Chamber the applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage. The Government contested this claim as unfounded, excessive and unsubstantiated. 350. The Chamber decided, on an equitable basis, to award the applicant EUR 5,000 in respect of non-pecuniary damage. 351. In the proceedings before the Grand Chamber the parties did not alter their submissions under this head. The Court upholds the Chamber judgment in respect of the claim for damage and awards the applicant the same amount as the Chamber: EUR 5,000 in respect of non-pecuniary damage. Costs and expenses 352. In the Chamber proceedings the applicant claimed EUR 4,376.15 in respect of the costs and expenses related to her case before the Court. The Government argued that the applicant had been represented by a lawyer provided by the Rosa Centre, whose relevant activities were largely funded by the State. They also submitted that the applicant’s claim was unsubstantiated and excessive. 353. The Chamber dismissed the applicant’s claim in respect of costs and expenses on the grounds that she had not refuted the Government’s submission that her representative had already been paid from State funds. 354. Before the Grand Chamber the applicant claimed 62,353.85 Croatian kunas in respect of the costs and expenses of the proceedings before the Chamber and the Grand Chamber. The Government contested this claim. 355. The Court notes that the applicant failed to provide any proof of payment or of an obligation to pay the costs and expenses claimed, whether in respect of the Chamber or the Grand Chamber proceedings. In the absence of such documents, the Court finds no basis on which to accept that the costs and expenses claimed by the applicant were actually incurred by her (compare Merabishvili v. Georgia [GC], no. 72508/13, §§ 371-72, 28 November 2017). The Court also notes that the applicant was granted legal aid for the proceedings before the Grand Chamber. It therefore dismisses the applicant’s claim for costs and expenses. Default interest 356. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 4 (prohibition of forced labour) of the Convention on account of the shortcomings in the Croatian authorities’ investigation into the applicant’s allegation of forced prostitution. Taking the opportunity via the applicant’s case to clarify its case-law on human trafficking for the purpose of exploitation of prostitution, the Court pointed out in particular that it relied on the definition under international law to decide whether it could characterise conduct or a situation as human trafficking under Article 4 of the Convention and therefore whether that provision could be applied in the particular circumstances of a case. The Court also clarified that the notion of “forced or compulsory labour” under Article 4 of the Convention aimed to protect against instances of serious exploitation, such as forced prostitution, irrespective of whether, in the particular circumstances of a case, they were related to the specific human trafficking context. It found that Article 4 could be applied in the applicant’s case as certain characteristics of trafficking and forced prostitution had arguably been present, such as abuse of power over a vulnerable individual, coercion, deception and harbouring. In particular, the applicant’s alleged abuser was a policeman, while she had been in public care from the age of 10, and he had first contacted her by Facebook, leading her to believe that he would help her to find a job. Instead, he had arranged for her to provide sexual services, either in the flat he had rented or by driving her to meet clients. That situation meant that the prosecuting authorities had been under an obligation to investigate the applicant’s allegations. However, they had not followed all obvious lines of enquiry, notably they had not interviewed all possible witnesses, and therefore in the court proceedings it had been a question of the applicant’s word against her alleged abuser’s. Such shortcomings had fundamentally undermined the domestic authorities’ ability to determine the true nature of the relationship between the applicant and her alleged abuser and whether she had indeed been exploited by him. |
34 | Education | RELEVANT LEGAL FRAMEWORK AND PRACTICE DOMESTIC LAWNational Education Act (Law no. 1/2011) National Education Act (Law no. 1/2011) National Education Act (Law no. 1/2011) 9. The National Education Act (hereinafter “the NEA”), published in the Official Bulletin on 10 January 2011 and entered into force thirty days after publication, provides that the State “grants equal rights of access to all levels and forms of pre ‑ university and higher education, as well as lifelong learning, for all nationals of Romania, without any form of discrimination” (Article 2 § 8). 10. The NEA also provides as a defining principle “the recognition and the guarantee of rights of persons belonging to national minorities, the right to preserve, develop and express ethnic, cultural, linguistic and religious identity”, as well as the principle of “ensuring equal opportunities” (Article 3). 11. The following provisions regulate the right to education in minority languages: Article 45 “(1) Persons belonging to national minorities shall have the right to be taught in their mother tongue, at all levels and in all forms of [primary and secondary] education, in accordance with the law. (2) Any Romanian national and any national of a European Union State or Switzerland may register and be taught in all forms of education in the Romanian language, a minority language or a foreign language, irrespective of their mother tongue or of the language they were taught in previously.” Article 46 “(1) In [primary and secondary] education, where teaching is done in a minority language, all subjects shall be studied in that language, with the exception of the subject of Romanian language and literature. (2) The subject of Romanian language and literature shall be taught, throughout [primary and secondary] education, in accordance with the school curriculum and from textbooks specifically designed for the relevant national minority. (3) By way of exception, in schools where teaching is done in a minority language, the subject of Romanian language and literature may be taught from textbooks used in schools where teaching is done in the Romanian language, at the request of parents, the organisation representing the national minority elected into Parliament or, if the respective national minority is not represented in Parliament, at the request of the parliamentary group representing national minorities. (4) Exams in the subject of Romanian language and literature shall be based on a special school curriculum. (5) In [primary and secondary education], evaluation assessments and exams for pupils enrolled in schools where teaching is done in a minority language shall be based on the requirements of the national curriculum. ... (12) In [primary and secondary] education, pupils may sit the entrance and final exams in the language in which they were taught the relevant subjects, in accordance with the law.” 12. The content and organisation of the baccalaureate are regulated as follows: Article 77 “(1) Secondary school graduates shall receive a diploma and record of [their] grades, as part of their educational portfolio, attesting to the fact that [they] finished their secondary school studies and may ... take the baccalaureate exam. (2) Pupils who passed their [final school year] shall sit the national baccalaureate exam. (3) Secondary school graduates who sit and pass the national baccalaureate exam shall receive a baccalaureate diploma, which gives them access to university education, in accordance with the law. (4) The national baccalaureate exam consists of the following exams: - Exam A: an assessment of oral communication skills in the Romanian language; - Exam B: an assessment of oral communication skills in the mother tongue, for pupils whose high school education was in a minority language; - Exam C: an assessment of oral communication skills in two foreign languages studied at high school ...; - Exam D: a digital [computer] skills assessment ...; - Exam E: a written assessment of competences obtained throughout high school, as follows: (a) a written exam in Romanian language and literature – a standard exam for pupils in all branches, profiles and specialisations; (b) a written exam in the [maternal] language and literature – a standard exam for pupils in all branches, profiles and specialisations whose high school education was in a minority language; (c) written exams in two subjects ... (5) The content of the exam curriculum is set by the Ministry of Education ... and publicly announced to pupils at the beginning of the first year of secondary school, in accordance with the law. The timetable, methodology and organisation of the baccalaureate exam are set by the Ministry of Education ... and are publicly announced for each year group at the beginning of the last year of secondary school. ...” Article 78 “1. [Secondary] school graduates shall be considered to have passed the national baccalaureate exam if all the following conditions are met: (a) [they] sat exams A, B, C and D provided for by Article 77 § 4; (b) [they] sat written exams E provided for by Article 77 § 4 and obtained at least grade 5 in each; (c) [they] obtained at least 6 as the average grade, calculated to two decimal points, in exams E. 2. School graduates who pass the baccalaureate exam shall receive a baccalaureate diploma. 3. School graduates who pass exams A, B, C and D provided for by Article 77 § 4 shall receive certificates attesting to their level of language and digital skills respectively. These certificates are issued irrespective of whether they have passed exams E provided for by Article 77 § 4. 4. If a pupil does not pass the national baccalaureate exam, the grades obtained in assessments A, B, C and D ... and the results obtained in written exams E, if grade 5 or higher, shall be recognised in the next [exam] session, upon request. 5. Two national baccalaureate exam sessions shall be organised per school year. ... 6. Pupils may sit the baccalaureate exam twice free of charge. Any subsequent resits shall be subject to the payment of a fee set by the Ministry of Education ... 7. Assessments A, B, C and D provided for by Article 77 § 4 shall ... take place in each school during the school year, in the second semester... 8. Written exams E in the national baccalaureate exam, provided for by Article 77 § 4, shall take place at the end of the school year, in the presence of a committee set up by the school inspectorate.” Discrimination under domestic law 13. Discrimination is prohibited by Article 16 of the Constitution, and is defined in Article 2 § 1 of the Anti-discrimination Ordinance (Government Ordinance no. 137/2000 on preventing and punishing all forms of discrimination). In addition, Article 11 of the Ordinance provides as follows: “(1) Under the ordinance herein, denying a person or group of persons access to the State-owned or private education system of any kind, degree or level, on account of their belonging to a race, nationality, ethnic group, religion, social category or disadvantaged group, on account of their beliefs, age, gender or sexual orientation, shall constitute a contravention. (2) The provisions of the paragraph above shall apply at all stages and levels of education, including admission or enrolment in education institutions and the assessment and examination of students’ knowledge. (3) Under the ordinance herein, requiring a declaration to prove that a person or group belongs to an ethnic group as a condition of access to education in their mother tongue shall constitute a contravention. The exception to this rule is the situation where candidates apply in the secondary and higher education system for places allocated specifically for a certain minority, in which case they shall prove that they belong to this minority by means of a document issued by a legally established organisation [representing] the relevant minority. (4) The provisions of paragraphs (1), (2) and (3) shall not be interpreted as a restriction of the right of an education institution to refuse the application of a person whose knowledge and/or prior results do not meet the required admission standards of that institution, as long as the refusal is not determined by [his or her] belonging to a race, nationality, ethnic group, religion, social category or disadvantaged group, on account of his or her beliefs, age, gender or sexual orientation. ... (6) Under the ordinance herein, any restrictions based on belonging to a race, nationality, ethnic group, religion, social category or disadvantaged group in the establishment and accreditation of education institutions set up in accordance with the legal framework in force shall constitute a contravention.” 14. On 3 July 2008 the Constitutional Court adopted four decisions (nos. 818, 819, 820, and 821) declaring Articles 1, 2 and 27 § 1 of the Anti-discrimination Ordinance unconstitutional in so far as they could be interpreted as granting the domestic courts the power to repeal laws which they found to be discriminatory. The decisions were adopted following an examination of constitutional complaints lodged by the Ministry of Justice in four sets of proceedings in which the domestic courts had declared various legal provisions concerning salary adjustments discriminatory. The decisions were published in the Official Gazette on 16 July 2008. In all four decisions, the Constitutional Court held: “Interpreting the provisions of the [Anti-discrimination Ordinance] so as to allow the courts to have power to repeal legal provisions and replace them with new provisions or existing provisions from other laws is clearly unconstitutional, as it breaches the principle of the separation of powers enshrined in Article 1 § 4 of the Constitution, as well as Article 61 § 1, which states that Parliament is the only legislative body in the country. ... Accordingly, the Constitutional Court ... rules that the provisions of Articles 1, 2 § 3, and 27 § 1 of Government Ordinance no. 137/2000 on preventing and punishing all forms of discrimination are unconstitutional, in so far as they can be interpreted as allowing the courts to revoke or refuse to apply [laws] on the grounds that they are discriminatory and replace them with provisions created on the basis of case-law or provisions of other laws not considered by the legislature when adopting the provisions [considered discriminatory].” Administrative Proceedings Act (Law no. 554/2004) 15. The relevant parts of the Administrative Proceedings Act read as follows: Article 1: Who can apply to court “(1) Anyone who considers that their rights or legitimate interests were breached by a public authority by an administrative act or failure to respond to a request within the statutory time-limit, may apply to court for annulment of that act, acknowledgement of the right or legitimate interest at stake and compensation for the damage sustained. The legitimate interest may be either private or public.” Article 2: Meaning of terms “1. In accordance with the present law, the following words and phrases have the meaning set out below: ... (c) administrative act: unilateral act, either individual or normative, issued by a public authority, in the exercise of its public power, with a view to organising the application of a law or concrete application of a law, and which gives rise to, modifies or extinguishes legal relations; ...” Article 8: Subject of the legal action “1. Anyone who considers that their rights or legitimate interests were breached by a unilateral administrative act, and who is unsatisfied with the response received to their preliminary request [ plângere prealabilă ] or who has received no response within the time-limit specified in Article 2 § 1 (h), may lodge an action with the court, seeking partial or total annulment of that act, compensation for the damage sustained, and, if applicable, non-pecuniary damages ...” Order no. 4799 of 31 August 2010 of the Ministry of Education concerning the organisation and administration of the baccalaureate 16. Ministerial Order no. 4799 regulates the baccalaureate exam procedure. The relevant provisions read as follows: Article 43 “1. Subjects for the written exams shall be set by the National Assessment and Examination Centre in accordance with the following criteria: (a) [they] shall comply with the school curricula and the baccalaureate programme approved and published by the [Ministry of Education] ...” Article 47 “3. The National Assessment and Examination Centre shall ensure translation of the subjects into the languages of national minorities.” CONSTITUTIONAL COURT DECISIONSDecision no. 2/2011 Decision no. 2/2011 Decision no. 2/2011 17. In decision no. 2/2011, issued on 23 February 2011, the Constitutional Court examined a challenge to the constitutionality of the NEA made by a group of parliamentarians. Several provisions were called into question, including Article 46 § 2 providing for the right to education of national minorities (see paragraph 11 above). The Constitutional Court dismissed all objections. The relevant parts of the Constitutional Court’s decision read as follows: “... the Court observes that Article 6 of the Constitution guarantees the right to identity of people belonging to national minorities; the constitutional provision expressly provides that ‘the State recognises and guarantees the right of persons belonging to national minorities to preserve, develop, and express their ethnic, cultural, linguistic and religious identity’. The method of implementation of this right is specified in paragraph 2 of the same constitutional provision, which requires that adequate measures be taken to this end. The State’s positive obligation is inferred from the phrase: ‘protection measures taken by the State’ which must respect ‘the principles of equality and non-discrimination in relation to other Romanian nationals’. ... Numerous international instruments provide for the right to education ... of persons belonging to national minorities ... Consequently, positive measures may be necessary to protect the identity of a minority and the rights of members of that group to enjoy and develop their own culture and language, and practice their religion ... These international instruments refer to the specific situation of persons belonging to national minorities, which requires the State to treat them differently ... The [NEA] has implemented and developed these obligations so as to allow and guarantee the continuous development of the cultural identity of persons belonging to national minorities ... The legislature has chosen to make specific provisions concerning [primary and secondary] education for persons belonging to national minorities. ... The fact that the law provides for a special school curriculum for learning the Romanian language designed for members of a national minority signifies that the specific situation of these persons has been taken into account, notably the fact that they have a different mother tongue than Romanian. In other words, the different situation in which members of a national minority find themselves evidently calls for different treatment by law, in order to ensure effective equality and access to quality education for all. Consequently, the legislature must take this fact into account and adapt the requirements to learn Romanian language and literature to the specific situation of persons belonging to national minorities. Last but not least, the authorities have an obligation to ensure that a sufficient number of hours are provided for the proper study of Romanian language and literature.” Decision no. 670/2015 18. Z.I.A., the father of an ethnic Hungarian student, complained that Ministerial Order no. 5610/2012 setting the timetable for the baccalaureate exams discriminated against pupils belonging to a national minority who had to sit two additional exams in the same time period as their Romanian peers. 19. In decision no. 148/2014, issued on 5 March 2014, the National Council for Combatting Discrimination (“the NCCD”) found that that situation did not constitute discrimination. It accepted that pupils taught in their mother tongue and not Romanian had to make additional efforts during their final exams. It considered, however, that these efforts were rewarded by the fact that they obtained a certificate of language proficiency which was not awarded to Romanian pupils. Moreover, it reiterated that being taught in a language other than Romanian was a choice and not a right for students. This choice involved additional efforts on the part of the State and the students themselves, and both parties had to accept this choice. 20. In the operative part of its decision, the NCCD recommended that the authorities: “... set a timetable [for the baccalaureate] taking into account the days necessary for rest, set a timetable allowing an equal amount of days between the [exams] in the baccalaureate, for instance by scheduling the [exams] in the mother tongue – oral and written – at the end of the baccalaureate exam period, in so far as possible.” 21. Z.I.A. lodged an action with the Bucharest County Court complaining of discrimination against ethnic Hungarian pupils and seeking annulment of the decision issued by the NCCD on 5 March 2014. In his action, he requested that the matter of discrimination be referred to the Constitutional Court. 22. Following a referral by the Bucharest Court of Appeal, the Constitutional Court examined the compatibility with the non ‑ discrimination clause of the NEA. In his complaint, Z.I.A. argued that during the same period of time allocated to all students for the final exams, ethnic Hungarians had to sit more exams than their Romanian peers. This, in his view, created a difference in treatment amounting to discrimination. He also suggested that the solution for eliminating discrimination would be to have pupils sit exams in only one of the two languages, namely their mother tongue. 23. In decision no. 670/2015, issued on 20 October 2015, the Constitutional Court dismissed the complaint. It reiterated that the Constitution guaranteed the right of the persons belonging to a national minority to preserve their collective identity through the use of their mother tongue. This right however, was related to the obligation to integrate into society in general, by learning the official language. Consequently, the Constitutional Court dismissed the argument that there was no objective and reasonable justification for requiring students belonging to ethnic minorities to sit the Romanian language exams. 24. The Constitutional Court further held that the fact that students belonging to ethnic minorities had to sit more exams in the same time period was not a question of constitutionality. It reiterated that it was for the legislature to set the timetable for the final exams. 25. Consequently, Z.I.A.’s initial action was dismissed by the Bucharest Court of Appeal on 24 November 2014. In a final decision of 7 March 2017 the High Court of Cassation and Justice declared his appeal on points of law null and void, on the grounds that he had failed to state the reasons for his appeal. COUNCIL OF EUROPE MATERIALSFramework Convention for the Protection of National Minorities Framework Convention for the Protection of National Minorities Framework Convention for the Protection of National Minorities 26. The Framework Convention for the Protection of National Minorities, adopted by the Council of Europe in 1995, entered into force in respect of the respondent State on 1 February 1998. The relevant parts read as follows: “The member States of the Council of Europe and the other States, signatories to the present framework Convention, ... Considering that a pluralist and genuinely democratic society should not only respect the ethnic, cultural, linguistic and religious identity of each person belonging to a national minority, but also create appropriate conditions enabling them to express, preserve and develop this identity; ...” Article 5 “1. The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage. 2. Without prejudice to measures taken in pursuance of their general integration policy, the Parties shall refrain from policies or practices aimed at assimilation of persons belonging to national minorities against their will and shall protect these persons from any action aimed at such assimilation. ...” Article 10 “1. The Parties undertake to recognise that every person belonging to a national minority has the right to use freely and without interference his or her minority language, in private and in public, orally and in writing. ...” Article 12 “1. The Parties shall, where appropriate, take measures in the fields of education and research to foster knowledge of the culture, history, language and religion of their national minorities and of the majority. 2. In this context the Parties shall inter alia provide adequate opportunities for teacher training and access to textbooks, and facilitate contacts among students and teachers of different communities. 3. The Parties undertake to promote equal opportunities for access to education at all levels for persons belonging to national minorities. ...” Article 14 “1. The Parties undertake to recognise that every person belonging to a national minority has the right to learn his or her minority language. 2. In areas inhabited by persons belonging to national minorities traditionally or in substantial numbers, if there is sufficient demand, the Parties shall endeavour to ensure, as far as possible and within the framework of their education systems, that persons belonging to those minorities have adequate opportunities for being taught the minority language or for receiving instruction in this language. 3. Paragraph 2 of this article shall be implemented without prejudice to the learning of the official language or the teaching in this language.” European Charter for Regional or Minority Languages 27. The European Charter for Regional or Minority Languages, adopted by the Council of Europe in 1992, entered into force in respect of the respondent State on 1 May 2008. The relevant provisions read as follows: “Preamble The member States of the Council of Europe signatory hereto, ... Considering that the right to use a regional or minority language in private and public life is an inalienable right conforming to the principles embodied in the United Nations International Covenant on Civil and Political Rights, and according to the spirit of the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms; ... Stressing the value of interculturalism and multilingualism and considering that the protection and encouragement of regional or minority languages should not be to the detriment of the official languages and the need to learn them; Realising that the protection and promotion of regional or minority languages in the different countries and regions of Europe represent an important contribution to the building of a Europe based on the principles of democracy and cultural diversity within the framework of national sovereignty and territorial integrity; Taking into consideration the specific conditions and historical traditions in the different regions of the European States, ...” Article 1 – Definitions “For the purposes of this Charter: a ’regional or minority languages’ means languages that are: i traditionally used within a given territory of a State by nationals of that State who form a group numerically smaller than the rest of the State’s population; and ii different from the official language(s) of that State; it does not include either dialects of the official language(s) of the State or the languages of migrants;” THE LAW PRELIMINARY REMARKS 28. The Court notes from the outset that the applicants complained about the manner in which the baccalaureate was organised. The necessity and benefits of learning Romanian was not called into question by them (see paragraph 71 below). It was likewise reaffirmed by the Constitutional Court (see paragraph 23 above). In this connection, the Court also stresses that the Council of Europe instruments relevant to the protection of national minorities, notably the Framework Convention for the Protection of National Minorities (see paragraph 26 above) and the European Charter for Regional or Minority Languages (see paragraph 27 above), expressly recognise that the protection and encouragement of minority languages should not be to the detriment of official languages and the need to learn them. Consequently, the importance for national minorities to study the official language of the State was not called into question in the present applications. JOINDER OF THE APPLICATIONS 29. Having regard to the similar subject matter of the applications, the Court finds it appropriate to order their joinder (Rule 42 § 1 of the Rules of Court). ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 12 TO THE CONVENTION 30. The applicants complained that they had been discriminated against because of the manner in which the baccalaureate was organised, as in the same short time period they had had to take two additional exams in the baccalaureate compared to their Romanian peers. Moreover, the exams they had had to sit in Romanian language and literature had been very difficult for them. This situation imposed a more significant burden on Hungarian pupils than on their Romanian peers. The applicants claim that as a consequence, they had failed their baccalaureate. They relied on Article 1 of Protocol No. 12 to the Convention, which reads as follows: “1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.” AdmissibilityThe Court’s jurisdiction ratione materiae The Court’s jurisdiction ratione materiae The Court’s jurisdiction ratione materiae 31. At the outset, the Court reiterates that as the question of applicability is an issue of its jurisdiction ratione materiae, the general rule of dealing with applications should be respected and the relevant analysis should be carried out at the admissibility stage unless there is a particular reason to join this question to the merits (see Denisov v. Ukraine [GC], no. 76639/11, § 93, 25 September 2018). No such particular reason exists in the present case and the issue of the applicability of Article 1 of Protocol No. 12 falls to be examined at the admissibility stage. 32. The Court reiterates that whereas Article 14 of the Convention prohibits discrimination in the enjoyment of “the rights and freedoms set forth in [the] Convention”, Article 1 of Protocol No. 12 introduces a general prohibition of discrimination (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 53, ECHR 2009, and Baralija v. Bosnia and Herzegovina, no. 30100/18, § 45, 29 October 2019). 33. It is important to note that Article 1 of Protocol No. 12 extends the scope of protection not only to “any right set forth by law”, as the text of paragraph 1 might suggest, but beyond that. This follows in particular from paragraph 2, which further provides that no one may be discriminated against by a public authority (see Savez crkava “Riječ života” and Others v. Croatia, no. 7798/08, § 104, 9 December 2010). According to the Explanatory Report on Article 1 of Protocol No. 12, the scope of protection of that Article concerns four categories of cases, in particular where a person is discriminated against: “i. in the enjoyment of any right specifically granted to an individual under national law; ii. in the enjoyment of a right which may be inferred from a clear obligation of a public authority under national law, that is, where a public authority is under an obligation under national law to behave in a particular manner; iii. by a public authority in the exercise of discretionary power (for example, granting certain subsidies); iv. by any other act or omission by a public authority (for example, the behaviour of law enforcement officers when controlling a riot).” The Explanatory Report further clarifies that: “... it was considered unnecessary to specify which of these four elements are covered by the first paragraph of Article 1 and which by the second. The two paragraphs are complementary and their combined effect is that all four elements are covered by Article 1. It should also be borne in mind that the distinctions between the respective categories i-iv are not clear-cut and that domestic legal systems may have different approaches as to which case comes under which category.” 34. Therefore, in order to determine whether Article 1 of Protocol No. 12 is applicable, the Court must establish whether the applicants’ complaints fall within one of the four categories mentioned in the Explanatory Report (see Savez crkava “Riječ života” and Others, cited above, § 105). 35. In this connection, the Court notes that all pupils are granted by law the option to be taught in their mother tongue and that the authorities are expected to take measures to facilitate it (see paragraph 11 above). Consequently, the applicants may claim that they had been discriminated in the enjoyment of a right specifically granted to an individual under national law. 36. It follows that Article 1 of Protocol No. 12 applies to the facts of the present case. Non-exhaustion of domestic remedies (a) The parties’ submissions (i) The Government 37. The Government pointed out that the applicants had not brought their grievances to the attention of the domestic authorities. They could have lodged an administrative complaint against the ministerial orders setting the timetable for the baccalaureate exams. A complaint under the Administrative Proceedings Act (see paragraph 15 above), would have allowed the domestic courts to examine the timetable and, if found in violation of the claimants’ fundamental rights, annul the ministerial order in question. 38. Moreover, the applicants could have also lodged a complaint with the NCCD similar to that lodged by Z.I.A. (see paragraphs 18-20 above). (ii) The applicants 39. The applicants pointed out that the Government had not produced any evidence to show that the remedies suggested would be able to provide them with redress. They reiterated that the NCCD had found that the situation complained of did not constitute discrimination, thus proving its ineffectiveness in the matter (see paragraph 20 above). 40. They further reiterated that their complaint concerned not only the time to rest between exams, but also the difficulty of the exams in Romanian language and literature, which had drastically reduced their chances of applying for university. 41. They argued that the only way Hungarian students could have similar rest and preparation time as Romanian pupils was by setting a longer exam period and possibly altering the sequence of the exams. However, as the structure and sequence of the final exams were laid down in the NEA, they had no domestic remedy at their disposal to complain about it. 42. Lastly, the applicants argued that the ministerial orders setting the exam timetable were published about ten months before the actual exams. In their view, this was insufficient time to obtain a final ruling in a complaint lodged under the Administrative Proceedings Act (see paragraph 15 above). (b) The Court’s assessment (i) General principles 43. On the requirement to exhaust domestic remedies, the Court refers to the well-established principles of its case-law (as reiterated notably in Gherghina v. Romania (dec.) [GC], no. 42219/07, §§ 83-89, 9 July 2015, and Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014). 44. In particular, the Court reiterates that the obligation to exhaust domestic remedies requires applicants to make normal use of remedies which are available and sufficient in respect of their Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Gherghina, cited above, § 85, with further references). 45. Nevertheless, there is no obligation to have recourse to remedies which are inadequate or ineffective. However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to pursue it (ibid., § 86, with further references). 46. The Court has, however, also frequently stressed the need to apply the exhaustion rule with some degree of flexibility and without excessive formalism (ibid., § 87, with further references). 47. The Court also reiterates that as regards the burden of proof, it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time. The availability of a remedy said to exist, including its scope and application, must be clearly set out and confirmed or complemented by practice or case ‑ law (ibid., § 88, and Molla Sali v. Greece [GC], no. 20452/14, § 89, 19 December 2018). (ii) Application of those principles to the facts of the case 48. Turning to the facts of the present case, the Court notes that Government suggested two possible remedies: a complaint under the Administrative Proceedings Act and an action before the NCCD (see paragraphs 37 and 38 above). The Court will examine in turn the effectiveness of each of those remedies. (α) Complaint with the administrative courts 49. The Court notes at the outset that the Government did not provide any examples of domestic case-law demonstrating that an administrative complaint would be both effective and available in practice (see paragraph 47 above; see also, mutatis mutandis, Romeo Castaño v. Belgium, no. 8351/17, § 57, 9 July 2019, and Butrin v. Russia, no. 16179/14, § 43, 22 March 2016). Moreover, the Court cannot find, in the material submitted before it, any indication of the prospects of success of this remedy. It cannot assess in the abstract how the domestic courts would deal with an action brought by the applicants against the ministerial order (see paragraphs 15 and 42 above). For instance, the Court cannot speculate about the applicants’ victim status under domestic law at the moment it was published, that is, before they graduated and qualified to take the baccalaureate (see Article 77 § 1 of the NEA, cited in paragraph 12 above). 50. The Court finds no justification for the complete absence of domestic case-law from the Government’s submissions (contrast Gherghina, cited above, § 100). In this connection, it notes that the remedy suggested by the Government is provided for by the Administrative Proceedings Act, which constitutes the lex generalis for any action against an administrative act when such an action is permitted by law (see paragraph 15 above). Even assuming that the ministerial orders setting the baccalaureate exam timetable have never been challenged in the past, the Government should have provided the Court with relevant domestic decisions concerning actions brought against other such ministerial orders, issued in other fields. It is therefore inconceivable that the action has been rarely used in the past (ibid.), and the Government have not argued that either. In failing to submit relevant case-law, the Government failed to prove that the administrative complaint constituted in practice an effective remedy. (β) Complaint with the NCCD 51. As to a complaint before the NCCD (see paragraph 38 above), the Court notes that in a similar action brought against Ministerial Order no. 5610/2012 (see paragraph 18 above) the NCCD decided that the situation of Hungarian pupils sitting their baccalaureate exams did not constitute discrimination (see paragraph 19 above). As the applicants’ situation is identical to that already examined by the NCCD in the above action, the Court considers that, in the concrete circumstances of the present case, the prospects of success are so low as to render the remedy futile (see the case-law referred to in paragraph 45 above). 52. Lastly on this point, and in the absence of any information provided by the Government, the Court cannot speculate as to whether the domestic courts would entertain a complaint of discrimination by the applicants against the ministerial orders. It reiterates that the Constitutional Court instructed the domestic authorities to set the timetable for the baccalaureate exams by law (see paragraph 24 above). At the same time, it also effectively forbade the domestic courts from repealing laws which they found to be discriminatory (see paragraph 14 above). (γ) Conclusion 53. In view of the foregoing, the Court considers that the applicants did not have at their disposal an effective domestic remedy. Consequently, the Government’s objection of failure to exhaust domestic remedies should be dismissed. Six-month rule (a) The parties’ submissions (i) The Government 54. The Government argued that the applicants should have lodged their applications with the Court within six months of the date the Ministry of Education had adopted the relevant order setting the timetable for the relevant school year’s baccalaureate exams (see Appendix II below). These orders were adopted each school year and published both on the Ministry’s website and in the Official Gazette. 55. In addition, the Government argued that Ms Ádám and Mr Ambrus should have lodged their respective applications within six months of the date they had become aware for the first time of the final exam results, that is, 4 September 2014 and 10 July 2017 respectively. However, they had both failed to comply with the requisite time-limit. (ii) The applicants 56. The applicants argued that they had become directly affected by the measures complained of each time they had obtained the results of their baccalaureate. Consequently, they had all respected the six-month time-limit set by the Convention for lodging their applications. (b) The Court’s assessment (i) General principles 57. The object of the six-month time-limit under Article 35 § 1 of the Convention is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (see Lekić v. Slovenia [GC], no. 36480/07, § 64, 11 December 2018). 58. As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 157, ECHR 2009). (ii) Application of those principles to the facts of the case 59. Turning to the facts of the present case, the Court notes that the applicants sat the baccalaureate exam on several occasions, as permitted by domestic law (see Article 78 § 6 of the NEA, cited in paragraph 12 above). As the Court has established above that the applicants had no effective domestic remedy at their disposal to complain about the alleged violation of their rights (see paragraph 53 above), the six-month time-limit started running from the date they became aware of the effect of the measure complained of and the prejudice they had incurred because of it (see the case-law quoted in paragraph 58 above), that is, the date they received the results of their most recent baccalaureate. 60. In this regard, the Court notes that all six applicants observed the six-month requirement (see Appendix I below). In particular, Ms Ádám, who sat the baccalaureate most recently in August and September 2017, lodged her application on 24 November 2017. Mr Petres, who sat the baccalaureate in June and July 2018, lodged his application on 15 October 2018. Mr Bakos, who sat the baccalaureate in June and July 2018, lodged his application on 18 October 2018. Mr Ambrus, who sat the baccalaureate most recently in August and September 2018, lodged his application on 19 October 2018. Mr Forika, who sat the baccalaureate most recently in August and September 2018, lodged his application on 8 November 2018. Mr Maxem, who sat the baccalaureate most recently in August and September 2018, lodged his application on 13 November 2018. 61. Consequently, the Court dismisses the Government’s preliminary objection under this head. Actio popularis (a) The parties’ submissions (i) The Government 62. The Government contended that the applications with the Court represented an actio popularis in so far as the applicants had complained not only about their personal situation but also of “decades-long discrimination of all pupils not sitting their final exams in Romanian, that is, all national minorities living in Romania”. Moreover, the applicants had not explained concretely what consequences they had personally endured because of the manner in which the baccalaureate was organised. They reiterated that the Court’s role was not to examine in the abstract the compatibility of domestic legislation with the Convention. (ii) The applicants 63. The applicants refuted the Government’s allegations. They pointed out that they had all sat the baccalaureate on several occasions and had suffered the consequences of the measures taken by the authorities in this regard. They had not raised the issue in general terms, although it was true that many Hungarian pupils were discriminated against in the context of the final high school exams. (b) The Court’s assessment (i) General principles 64. The Court has consistently held in its case-law that the Convention does not provide for the institution of an actio popularis and that its task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to or affected the applicant gave rise to a violation of the Convention. Accordingly, in order to be able to lodge an application in accordance with Article 34, an individual must be able to show that he was “directly affected” by the measure complained of. This is indispensable for putting the protection mechanism of the Convention into motion, although this criterion is not to be applied in a rigid, mechanical and inflexible way throughout the proceedings (see Roman Zakharov v. Russia [GC], no. 47143/06, § 164, ECHR 2015, with further references). (ii) Application of those principles to the facts of the present case 65. The Court notes that the applicants did not pass the baccalaureate. Their grievances concerned the consequences they had personally suffered because they had failed it (see paragraph 30 above). As to the assertions highlighted by the Government as constituting an actio popularis, they are no more than supporting arguments on the merits of the alleged violation and shall be treated by the Court as such. 66. In addition, the mere fact that others might also be potentially affected by the measures complained of is not an element that would qualify the current applications as being an actio popularis. 67. Accordingly, the Court dismisses this preliminary objection. Other grounds for inadmissibility 68. Lastly, the Court notes that the case is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsSubmissions by the parties Submissions by the parties Submissions by the parties (a) The applicants 69. At the outset, the applicants reiterated that they had not only complained about the time allowed for rest and preparation, but also about the fact that the exams they had had to sit in Romanian language and literature had been very difficult. 70. Relying on D.H. and Others v. the Czech Republic ([GC], no. 57325/00, §§ 175-81, ECHR 2007 ‑ IV), the applicants reiterated that the State had a duty to protect the security, identity and lifestyle of ethnic minorities, not only for the purpose of safeguarding the interests of the minorities themselves, but to preserve a cultural diversity of value to the whole community. In this connection they argued that the manner in which the final exams were organised had a far greater prejudicial effect on the Hungarian community than on the majority of Romanian pupils. 71. They did not question the usefulness of learning the Romanian language or of having their knowledge of it tested in the final exams. They argued that in the final exams, all students should pass a literature exam in their mother tongue. Testing their level of Romanian on an equal footing with Romanian native speakers was, in their view, a clear case of discrimination. On this point, they argued that the Romanian language and literature exams were difficult, even for native speakers. They sometimes involved complicated and outdated language which had nothing to do with the practical use of the Romanian language and their real needs. Moreover, they were living in a region where Romanian was not spoken in daily life, which meant that they had no possibility of practising their language skills and preparing for the exams. They contended that as non-native speakers, their level would never be as high in Romanian as that of their native speaker peers. In their view, this difference should be acknowledged both in the baccalaureate and the university entry exams. 72. The applicants further refuted the Government’s argument (see paragraph 80 below) that since it had been their choice to be taught in Hungarian, they had to accept the consequences of that choice. In their view, advising Hungarian native speakers to be taught in Romanian in order to alleviate the burden of their baccalaureate amounted to an agenda of forced assimilation. They reiterated that the possibility to be taught in Hungarian was essential for maintaining their Hungarian ethnic identity. 73. The applicants argued that the authorities’ plans to adapt the curriculum for learning Romanian, albeit laudable, did not benefit them in any way, as it only concerned pupils currently in middle school (see paragraph 78 below). 74. The applicants also rejected the Government’s assertion that the Hungarian language certificate was an added benefit for Hungarian students (see paragraph 81 below). They pointed out that they had failed the baccalaureate, and had thus been denied any possibility of continuing their studies. Moreover, the Government had failed to provide any statistical evidence to demonstrate that pupils belonging to a national minority would benefit in any way from passing the exam in Romanian literature. 75. Lastly, they pointed out that their situation should be examined in comparison with that of pupils who had taken the baccalaureate in the same years as them. (b) The Government 76. The Government pointed out that not all pupils belonging to the Hungarian minority chose to study in Hungarian. The choice of language of education belonged to pupils, and there was no obligation for an ethnic Hungarian to enrol in a school where teaching was done in Hungarian. 77. The Government contended that the treatment that the applicants complained of did not amount to discrimination. It was provided for by law, in so far as the number of exams, timetable and administration of the final exams were set by the NEA (see paragraph 12 above). The implementation of these provisions was done by the Ministry of Education, whose orders could be contested before the administrative courts (see paragraph 37 above). 78. The NEA also dictated that Romanian language and literature be taught throughout the school curriculum, following school programmes and textbooks specific for each minority. Moreover, in 2016 the Ministry of Education and representatives of the Hungarian community had started developing Romanian language and literature textbooks designed specifically for Hungarian pupils. The exercise had started with middle grade classes and would continue at secondary level. 79. Moreover, the treatment in question pursued a legitimate aim, that of ensuring equal opportunities for all nationals, be they ethnic Romanians or members of ethnic minorities. Eliminating any of these language exams would cause irreparable damage to students in terms of social integration. 80. As to the justification for this difference, the Government pointed out at the outset that the additional exams taken by the applicants had been the consequence of their own choice to receive education in their mother tongue. They had freely chosen to be taught in Hungarian. This choice had not been imposed on them by the authorities, nor had it been a consequence of their ethnicity. The possibility to receive education in Hungarian was offered by the State by virtue of the principle of non ‑ discrimination on grounds of ethnicity and in order to help those belonging to an ethnic minority to preserve their cultural identity and language. The Government pointed out that the choice for pupils to receive education in their mother tongue did not come without consequences: it imposed on the authorities a corresponding obligation to assess the language skills acquired by pupils. 81. The fact that the applicants had sat additional exams in their mother tongue had brought extra benefits for them. They had received language certificates, which opened up more career possibilities than those available to pupils who did not obtain such certificates. The Court’s assessment (a) General principles 82. Notwithstanding the difference in scope between Article 14 of the Convention and Article 1 of Protocol No. 12 to the Convention, the meaning of the notion of “discrimination” in Article 1 of Protocol No. 12 was intended to be identical to that of Article 14 (see paragraphs 18 and 19 of the Explanatory Report to Protocol No. 12). The Court therefore sees no reason to depart from the settled interpretation of “discrimination”, in applying the same term under Article 1 of Protocol No. 12 (see Sejdić and Finci, cited above, § 55). 83. It can be inferred that, in principle, the same standards developed by the Court in its case-law concerning the protection afforded by Article 14 are applicable to cases brought under Article 1 of Protocol No. 12. 84. In this vein, the Court reiterates that in the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without objective and reasonable justification, of individuals in analogous, or relevantly similar, situations. In other words, the requirement to demonstrate an analogous position does not require that the comparator groups be identical. For the purposes of Article 14, a difference in treatment is discriminatory if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised (see Molla Sali, cited above, §§ 133 and 135, 19 December 2018). 85. The Court has established in its case-law that only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 (see Fábián v. Hungary [GC], no. 78117/13, § 113, 5 September 2017). 86. The Court has also accepted that a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory even if not specifically aimed at that group, and that discrimination potentially contrary to the Convention may result from a de facto situation (see D.H. and Others v. the Czech Republic, cited above, § 175, with further references). 87. Thus, the Contracting States must refrain from subjecting persons or groups to different treatment where, under the above principles, such treatment would qualify as discriminatory. However, this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States, without an objective and reasonable justification, fail to treat differently persons whose situations are significantly different. The prohibition deriving from Article 14 will therefore also give rise to positive obligations for the Contracting States to make necessary distinctions between persons or groups whose circumstances are relevantly and significantly different (see J.D. and A. v. the United Kingdom, nos. 32949/17 and 34614/17, § 84, 24 October 2019, with further references, notably Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000 ‑ IV). In this context, relevance is measured in relation to what is at stake, whereas a certain threshold is required in order for the Court to find that the difference in circumstances is significant. For this threshold to be reached, a measure must produce a particularly prejudicial impact on certain persons as a result of a protected ground, attaching to their situation and in light of the ground of discrimination invoked (see J.D. and A. v. the United Kingdom, cited above, § 85). 88. For instance, the Court considered that applicants who had been in particular need of protection for reasons directly related to their status – severe disability and gender respectively – and who, if left without protection, had risked exceptional hardship or their personal safety, had been in a significantly different situation with respect to the measure complained of (the reduction of the Housing Benefit – see J.D. and A. v. the United Kingdom, cited above, § 92). Furthermore, an applicant who had been convicted for refusing to wear military uniform was in a significantly different situation to someone convicted of a serious crime because, unlike the latter, the applicant had been convicted for exercising his freedom of religion and not of an offence involving dishonesty or moral turpitude (see Thlimmenos, cited above, §§ 44 and 47). The Court also found that, with regard to eligibility for a residence permit for family reasons, a homosexual couple was in a significantly different situation to heterosexual partners who had decided not to regularise their situation (see Taddeucci and McCall v. Italy, no. 51362/09, § 85, 30 June 2016). 89. On the other hand, the Court was not convinced that, because of its doctrine concerning worship in its temples, an applicant religious organisation had been in a significantly different position from other churches for the purposes of tax exemptions (see The Church of Jesus Christ of Latter-Day Saints v. the United Kingdom, no. 7552/09, § 31, 4 March 2014). Likewise, the Court considered that biological children and foster children were in a relevantly similar objective situation for the purpose of the manner in which a survivor’s pension had been divided between them (see Ruszkowska v. Poland, no. 6717/08, § 55, 1 July 2014). 90. Moreover, the Court reiterates that the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. In that regard, the Court has stated that national authorities by reason of their direct and continuous contact with the vital forces of their countries are in principle better placed than an international court to evaluate local needs and conditions (see Chapman v. the United Kingdom [GC], no. 27238/95, § 91, ECHR 2001 ‑ I, and Muñoz Díaz v. Spain, no. 49151/07, §§ 48-49, ECHR 2009). The same is true with regard to the necessity to treat groups differently in order to correct “factual inequalities between them” (see Stummer v. Austria [GC], no. 37452/02, § 88, ECHR 2011, and Guberina v. Croatia, no. 23682/13, § 72, 22 March 2016). (b) Application of those principles to the facts of the present case 91. The Court notes that the basis of the applicants’ complaint is that pupils belonging to national minorities who received secondary education in their mother tongue were severely impacted by the content of the school curriculum and the timetable of the baccalaureate. The importance for members of a national minority to study the official language of the State and the corresponding need to assess their command of it in the baccalaureate is not called into question (see paragraphs 28 and 71 above). 92. Turning to the facts of the case under examination, the Court observes that the applicants, who are all ethnic Hungarians who attended school in their mother tongue, had to sit the same exams as their Romanian peers. In addition, they also had to sit, in the same time period, two additional exams, to test their knowledge of Hungarian language and literature, in order to pass the baccalaureate. It can be inferred that the scheduling of the baccalaureate placed the applicants at a disadvantage. They were thus treated in the same manner as Romanian pupils sitting it, even though their situation was different. It remains to be determined whether the difference was sufficiently significant to reach the threshold implied by Article 1 of Protocol No. 12 (see paragraphs 87 to 89 above) and whether the State had a positive obligation under that provision to take specific measures to alleviate the applicants’ additional burden. 93. At the outset, it needs to be borne in mind that the setting and planning of the school curriculum fall in principle within the competence of the Contracting States. This mainly involves questions of expediency on which it is not for the Court to rule and whose solution may legitimately vary according to the country and the era (see, mutatis mutandis, and in the context of Article 2 of Protocol No. 1, Folgerø and Others v. Norway [GC], no. 15472/02, § 84 (g), ECHR 2007 ‑ III). Therefore, the Court considers that it is not its role to replace the State in deciding what subjects will be tested in the baccalaureate or the order and pace of the exams. It reiterates that a certain margin of appreciation must, inevitably, be left to the national authorities, who by reason of their direct and continuous contact with the vital forces of their countries are in principle better placed than an international court to evaluate the local needs and conditions (see the case ‑ law cited in paragraph 90 above and also, mutatis mutandis, Efstratiou v. Greece, 18 December 1996, § 29, Reports of Judgments and Decisions 1996 ‑ VI). 94. The Court notes that there is an emerging international consensus among the Contracting States of the Council of Europe recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle (see, in particular, the Council of Europe’s Framework Convention for the Protection of National Minorities, cited in paragraph 26 above), not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity that is of value to the whole community (see Chapman, § 93; D.H. and Others v. the Czech Republic, § 181; and Muñoz Díaz, § 60, all cited above). Moreover, the rights of persons belonging to national minorities to use their mother tongue and receive education in this language, as well as the State’s corresponding obligation to protect and encourage the development of minority languages, are among the principles safeguarded by the international instruments on the matter, to which the respondent State is a party (see paragraphs 26 and 27 above). 95. Domestic law, in particular the NEA, provides that people belonging to a national minority are entitled to receive education in their mother tongue (see paragraphs 10 and 17 above), in compliance with the State’s international obligations. In addition, Article 46 of the NEA (cited in paragraph 11 above) sets out several measures to be taken by the State in the field of education in order to accommodate the needs of pupils belonging to national minorities, notably a different curriculum for studying Romanian language and literature, and different exams in that subject in the baccalaureate for pupils studying in their mother tongue. 96. It is noteworthy that in 2016 the authorities started taking steps towards bringing the school curriculum for national minorities in line with the legislative requirements by developing, together with representatives of the Hungarian community, Romanian language and literature textbooks designed specifically for Hungarian pupils (see paragraphs 73 and 78 above). 97. Moreover, in its decision of 5 March 2014 the NCCD suggested possible avenues to be explored for the reorganisation of the baccalaureate exams in order to accommodate the specific needs of pupils studying in their mother tongue (see paragraph 20 above). 98. That said, the Court must reiterate that its task is not to assess and review in abstract the State’s policy in this field, but to consider the consequences that this policy had for the applicants, in the specific circumstances of their situation, that of pupils who had to pass two additional baccalaureate exams because they received secondary education in their mother tongue 99. In this context, the Court accepts that, in line with the domestic legislative requirements and international obligations outlined in paragraphs 94 and 95 above, the aim of this policy was to create equal opportunities for all pupils to obtain education in their mother tongue (see paragraph 79 above). It was thus designed to provide education in the applicants’ mother tongue while at the same time ensuring sufficient command and knowledge of Romanian language and literature. The manner in which the authorities chose to test that knowledge and the level of difficulty of the exam – which the applicants submitted had been high not only for them but also for their Romanian peers (see paragraph 71 above) – falls undoubtedly within the scope of the margin of appreciation of each State. 100. Although it took the authorities some time to start implementing the measures set out in the NEA (see paragraphs 9 and 78 above), and they may have not yet fully explored all the possibilities provided for by law and pointed out by the NCCD, the Court cannot but take note of the progress already made. Moreover, while the delays in the implementation of some measures may have had a certain impact on the applicants’ situation, bearing in mind the margin of appreciation in the matter, these setbacks alone cannot allow the Court to find, and the applicants did not provide any evidence in this respect, that the content of the curriculum in itself imposed an excessive burden on them for the purposes of Article 1 of Protocol No. 12 to the Convention. 101. The Court will now turn to the matter of the sequence of the baccalaureate exams. It notes at the outset that irrespective of the arrangements made by the State, the fact remains that pupils in the applicants’ situation have to pass two more exams than pupils studying in Romanian. That is however the direct and inevitable consequence of the applicants’ conscious and voluntary choice to study in a different language and the State offering them such an opportunity. In this connection, the Court observes that the law recognises a right but does not impose an obligation on pupils belonging to a national minority to study in their mother tongue (see paragraphs 11 and 76 above). 102. Moreover, the timetable for the baccalaureate exams is set by order of the Ministry of Education at the beginning of each school year and does not seem to differ significantly from one year to another (see paragraphs 7 and 12 above, and Appendix II below). The pupils concerned thus have sufficient time to prepare both academically and mentally for the exams. 103. In addition, the Court is not persuaded that the schedule of the baccalaureate, viewed as a whole, imposed an excessive burden on the applicants. In fact, the Court cannot but note that in the reference years when the applicants sat the baccalaureate, the period allotted for the exams (six for pupils studying in Romanian and eight for pupils studying in a different language) varied. It was nine days in September 2017; eleven days in 2014, September 2015 and September 2018; twenty-four days in June 2017; and twenty-five days in June 2015 (see Appendix III below). Moreover, the timetable for the June to July 2018 exam session created less pressure for the applicants sitting the baccalaureate at that time, as the oral exams were scheduled to take place four months before the written ones (see Appendix III below). It cannot be inferred that the applicants had on average significantly less time to rest than their Romanian peers. 104. The same conclusion remains valid even when the alleged imbalance is regarded exclusively from the standpoint of the exams that the applicants had to take over consecutive days, unlike their Romanian peers, who had a day of rest in between. Given the particular circumstances, the Court is not convinced that the inconvenience suffered by the applicants was so significant as to reach the threshold of Article 1 of Protocol No. 12 to the Convention. 105. On this point, the Court also notes that the statistics provided by the Government indicate, for the period 2013 to 2018, similar success rates in the final baccalaureate exams for all pupils (see paragraph 8 above). 106. The Court is satisfied that there is nothing in the case to allow it to conclude that the applicants were deprived in practice of a real choice to receive education in their mother tongue or that the State had an agenda of forced assimilation, as argued by the applicants (see paragraph 72 above). 107. The foregoing considerations are sufficient to enable the Court to conclude that the consequences for the applicants of the choice of language of study and the authorities’ organisation of the education in a minority language and baccalaureate exams, albeit relevant to the alleged difference in treatment they experienced vis-à-vis their Romanian peers, did not place them in a different situation that was sufficiently significant for the purposes of Article 1 of Protocol No. 12 to the Convention. Therefore, there is no need to assess the justification provided by the State in this regard. 108. There has accordingly been no violation of Article 1 of Protocol No. 12 to the Convention. | The Court held that there had been no violation of Article 1 (general prohibition on discrimination) of Protocol No. 12 to the Convention, finding that neither the content of the curriculum nor the scheduling of the exams had caused a violation of the applicants’ rights. It noted in particular that the importance for members of a national minority to study the official language of the State and the corresponding need to assess their command of it in the baccalaureate was not called into question in the case. Nor was it its role to decide on what subjects should be tested or in what order, which came within States’ discretion (“margin of appreciation”). Furthermore, the extra tests the applicants had had to take had been a result of their own choice to study in their mother tongue. |
513 | Gender identity | II. RELEVANT DOMESTIC LAW AND PRACTICE Social security, employment and pensions 16. A transsexual continues to be recorded for social security, National Insurance and employment purposes as being of the sex recorded at birth. (a) National Insurance 17. The DSS registers every British citizen for National Insurance (NI) purposes on the basis of the information in their birth certificate. Non-British citizens who wish to register for NI in the United Kingdom may use their passport or identification card as evidence of identity if a birth certificate is unavailable. 18. The DSS allocates every person registered for NI with a unique NI number. The NI number has a standard format consisting of two letters followed by three pairs of numbers and a further letter. It contains no indication in itself of the holder ’ s sex or of any other personal information. The NI number is used to identify each person with an NI account (there are at present approximately 60 million individual NI accounts). The DSS is thereby able to record details of all NI contributions paid into the account during the NI account - holder ’ s life and to monitor each person ’ s liabilities, contributions and entitlement to benefits accurately. New numbers may in exceptional cases be issued to persons, for example, under the witness protection scheme or to protect the identity of child offenders. 19. NI contributions are made by way of deduction from an employee ’ s pay by the employer and then by payment to the Inland Revenue (for onward transmission to the DSS). At present employers will make such deductions for a female employee until she reaches the pensionable age of 60 and for a male employee until he reaches the pensionable age of 65. The DSS operates a policy for male-to-female transsexuals whereby they may enter into an undertaking with the DSS to pay direct to the DSS any NI contributions due after the transsexual has reached the age of 60 which have ceased to be deducted by the employer in the belief that the employee is female. In the case of female-to-male transsexuals, any deductions which are made by an employer after the age of 60 may be reclaimed directly from the DSS by the employee. 20. In some cases employers will require proof that an apparent female employee has reached, or is about to reach, the age of 60 and so entitled not to have the NI deductions made. Such proof may be provided in the form of an Age Exemption Certificate (form CA414 0 or CF384). The DSS may issue such a certificate to a male-to-female transsexual where such a person enters into an undertaking to pay any NI contributions direct to the DSS. 21. Documents received to date do not explain why National Insurance payments at the lower female rate were accepted from the applicant between 1963 and 1975. (b) State pensions 22. A male-to-female transsexual was, prior to 4 April 2005, only entitled to a State pension at the retirement age of 65 applied to men and not the age of 60 which is applicable to women. In those circumstances, a full pension was payable only if she had made contributions for 44 years as opposed to the 39 years required of women. 23. A person ’ s sex for the purposes of pensionable age was prior to 4 April 2005 determined according to biological sex at birth. This approach was approved by the Social Security Commissioner (a judicial officer, who specialises in social security law) in a number of cases. 24. In the R(P) 2/80 case, a male-to-female transsexual claimed entitlement to a pension at the age of 60. The Commissioner dismissed the applicant ’ s appeal and stated at paragraph 9 of his decision: “(a) In my view, the word ‘ woman ’ in section 27 of the [1992 Social Security Contributions and Benefits] Act means a person who is biologically a woman. Sections 28 and 29 contain many references to a woman in terms which indicate that a person is denoted who is capable of forming a valid marriage with a husband. That can only be a person who is biologically a woman. (b) I doubt whether the distinction between a person who is biologically, and one who is socially, female has ever been present in the minds of the legislators when enacting relevant statutes. However that may be, it is certain that Parliament has never conferred on any person the right or privilege of changing the basis of his National Insurance rights from those appropriate to a man to those appropriate to a woman. In my judgment, such a fundamental right or privilege would have to be expressly granted. ... (d) I fully appreciate the unfortunate predicament of the claimant, but the merits are not all on her side. She lived as a man from birth until 1975, and, during the part of that period when she was adult, her insurance rights were those appropriate to a man. These rights are in some respects more extensive than those appropriate to a woman. Accordingly, an element of unfairness to the general public might have to be tolerated so as to allow the payment of a pension to her at the pensionable age of a woman.” 25. On 1 June 2000 this decision was followed by a Commissioner determining the applicant ’ s appeal. 26. By 11 July 2002, when the Grand Chamber gave judgment in Christine Goodwin, the Government had instituted plans to eradicate the difference between men and women concerning the age of entitlement to State pensions. Section 126 of the Pensions Act 1995 provides for the State pensionable age to increase progressively, beginning in 2010 and reaching complete equalisation of the pensionable age at 65 by 2020. (c) Recent developments 27. Up to 15 October 2002, the Government had received 101 applications from transsexual people seeking to have their birth certificate changed. An Interdepartmental Group on Transsexual People was reconvened and reported to Ministers. On 13 December 2002 the Government announced draft legislation and a commitment to legislate as soon as possible. 28. In its Bellinger judgment published on 10 April 2003 ( see above ), the House of Lords did not expressly deal with the issue of pension entitlements, but took cognisance of the Government ’ s concession that domestic legislation failing to recognise the acquired gender of transsexual people infringed Articles 8 and 12 of the Convention. 29. On 14 April 2003 the Government confirmed in response to a parliamentary question that proposed legislation would include rights to claim a State pension from the date of legal recognition of the new gender. 30. The Gender Recognition Act 2004 has been adopted by Parliament since the introduction of this application. It received the Royal Assent on 1 July 2004. Under the Act, individuals who satisfy certain criteria are able to apply to a Gender Recognition Panel for a Gender Recognition Certificate. From the date of the grant of such a certificate, which is prospective in effect, an individual is afforded legal recognition in their acquired gender. In particular, social security benefits and the State retirement pension are paid according to the acquired gender. 31. From 4 January 2005, the Secretariat to the Gender Recognition Panel has been in operation and receiving applications. The Panel itself came into legal existence on 4 April 2005, from which date certificates could be issued. (d) The Human Rights Act 1998 32. On 2 October 2000 the Human Rights Act 1998 came into force, permitting the provisions of the Convention to be relied on in domestic proceedings in the United Kingdom. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 33. The applicant complained that the law relating to transsexual persons in general and the decision of the DSS in particular denying her a retirement pension at the age of 60 amounted to a violation of her rights under Article 8 of the Convention. 34. The relevant parts of Article 8 of the Convention provide : “1. Everyone has the right to respect for his private ... life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The parties ’ submissions 1. The applicant 35. The applicant emphasised that she had been issued with a National Insurance card as a woman and had made contributions at the female rate and as a result believed that she was being treated for all National Insurance purposes as a woman. She had never been informed otherwise. Referring to European Union case-law on temporal effects of judgments, the applicant argued that the judgment in Christine Goodwin ( cited above) had not been expressed as having limited temporal effect in the sense identified in Marckx v. Belgium ( 1 3 June 1979, § 58, Series A no. 31); that it had not dispensed the Government from re-examining legal acts or situations which predated the judgment; and that the Government had not requested such limitation and had not identified any mandatory reasons of legal certainty that would justify such limitation. Since there was a violation in Christine Goodwin, where the applicant had been informed in 1997 about her ineligibility for a State pension, a similar violation must have arisen in the present case from the refusal given to the applicant on 31 October 1997, and certainly on 5 September 2002 when she was refused again. In any event, the situation was a continuing one, not based on any one-off act. 36. Even if there was a temporal limitation in the earlier judgment, the applicant argued that this could not apply to her, as she had already made an equivalent claim and instituted legal proceedings to assert her rights. In so far as the Government sought to argue that no breach arose after the judgment in Christine Goodwin, this was contrary to the House of Lords judgment in Bellinger itself and contrary to Convention case-law. On the latter point, she referred to Vermeire v. Belgium ( 29 November 1991, Series A no. 214- C), in which the Court rejected the Belgian Government ’ s argument that the judgment in Marckx required a thorough revision of the legal status of children born out of wedlock and found that Article 46 did not allow a State to suspend the application of the Convention while waiting for reform. 2. The Government 37. The Government accepted that the applicant had genuinely believed that she would be entitled to a pension at the age of 60 but submitted that this mistake was not caused by the authorities. They also accepted that from the time of the judgment in Christine Goodwin (cited above) on 11 July 2002 those parts of English law which failed to give legal recognition to the acquired gender of transsexual persons were in principle incompatible with Articles 8 and 12 of the Convention. It was clear, however, that the judgment did not apply to the past or overrule previous judgments but expressly recognised the prospective nature of the judgment. Accordingly, there was no violation in the present case when the applicant was refused a pension on 31 October 1997, a one-off act or decision, the compatibility of which with the Convention should be assessed at that date. 38. Furthermore they submitted that the judgment in Christine Goodwin indicated that it was for the Government to implement measures in due course and the relevant domestic legal authorities were to be afforded a reasonable period within which to change clear statutory provisions for the future and were not to be treated as having been in breach of the Convention in other cases retrospectively ( Marckx v. Belgium, cited above; Walden v. Liechtenstein (dec.), no. 33916/96, 16 March 2000; and J.R. v. Germany, no. 22651/93, Commission decision of 18 October 1995, Decisions and Reports 83-A ). There were inevitable difficulties and important repercussions in any major change in the system and there had been a prompt legislative response. There had accordingly been no breach of Article 8 of the Convention in respect of the applicant. B. The Court ’ s assessment 39. The Court notes that it has dealt with a series of cases concerning the position of transsexuals in the United Kingdom ( Rees v. the United Kingdom, 17 October 1986, Series A no. 106; Cossey v. the United Kingdom, 27 September 1990, Series A no. 184; X, Y and Z v. the United Kingdom, 22 April 1997, Reports of Judgments and Decisions 1997-II; Sheffield and Horsham v. the United Kingdom, 30 July 1998, Reports 1998 ‑ V; and, most recently, Christine Goodwin and I. v. the United Kingdom, both cited above ). In the earlier cases, it held that the refusal of the United Kingdom Government to alter the register of births or to issue birth certificates whose contents and nature differed from those of the original entries concerning the recorded gender of the individual could not be considered as an interference with the right to respect for private life ( see Rees, § 35; Cossey, § 36; and Sheffield and Horsham, § 59 ). However, at the same time, the Court was conscious of the serious problems facing transsexuals and on each occasion stressed the importance of keeping the need for appropriate legal measures in this area under review (see Rees, § 47; Cossey, § 42; and Sheffield and Horsham, § 60). In the latest cases, it expressly had regard to the situation within and outside the Contracting State to assess “in the light of present-day conditions” what was at that time the appropriate interpretation and application of the Convention ( see Christine Goodwin, § 75). Following its examination of the applicants ’ personal circumstances as a transsexual, current medical and scientific considerations, the state of European and international consensus, impact on the birth register and social and domestic law developments, the Court found that the respondent Government could no longer claim that the matter fell within their margin of appreciation, save as regards the appropriate means of achieving recognition of the right protected under the Convention. As there were no significant factors of public interest to weigh against the interest of these individual applicants in obtaining legal recognition of their gender reassignment, it reached the conclusion that the fair balance that was inherent in the Convention now tilted decisively in favour of the applicants and that there had accordingly been a failure to respect their right to private life in breach of Article 8 of the Convention. 40. In the present case, the Court finds that the applicant – a post-operative male-to-female transsexual in an identical situation to the applicant in Christine Goodwin – may also claim to be a victim of a breach of her right to respect for her private life contrary to Article 8 of the Convention due to the lack of legal recognition of her change of gender. 41. The Court has noted the submissions of the parties concerning the date from which the applicant can claim, if at all, to be a victim of such a breach. While it is true that the Government had to take steps to comply with the judgment in Christine Goodwin, which involved drafting and passing in Parliament new legislation, which they achieved with laudable expedition, it is not the case that this process can be regarded as in any way suspending the applicant ’ s victim status. The Court ’ s judgment in Christine Goodwin found that from that moment there was no longer any justification for failing to recognise the change of gender of post-operative transsexuals. The applicant as such a transsexual did not have at that time any possibility of obtaining such recognition and could claim to be prejudiced from that moment. This situation may be distinguished from that in Walden (cited above), relied on by the Government, where the domestic courts did not act unreasonably or disproportionately in taking into account the time necessary for passing remedial legislation when considering the applicants ’ claims for redress under domestic law,. The present applicant ’ s victim status came to an end when the Gender Recognition Act 2004 came into force, thereby providing the applicant with the means on a domestic level to obtain the legal recognition previously denied. 42. The Court must also therefore reject the applicant ’ s claims that her victim status should be regarded as existing before the Christine Goodwin case and in particular encompassing the decision taken in October 1997 which first denied her the pension payable to women. Contrary to the applicant ’ s argument, the Court did not make any finding in Christine Goodwin that the refusal of a pension at an earlier time violated that applicant ’ s rights. The differences applicable to men and women concerning pensionable ages and National Insurance contributions were adverted to in the context of examining the consequence of the lack of legal recognition of transsexuals. The finding of a violation was, in light of previous findings by the Court that the Government had been acting within their margin of appreciation, made with express reference to the conditions pertaining at the time the Court carried out its examination of the merits of the case (see, mutatis mutandis, in expulsion cases, Chahal v. the United Kingdom, 15 November 1996, § 97, Reports 1996 ‑ V). 43. Consequently, in so far as the applicant complains specifically of the refusal to accord her the pension rights applicable to women of biological origin, she may claim to be a victim of this aspect of the lack of legal recognition from the moment, after the judgment in Christine Goodwin, when the authorities refused to give effect to her claim, namely, from 5 September 2002. 44. Subject to the above considerations, the Court finds that there has been a breach of the applicant ’ s right to respect for her private life contrary to Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION 45. The applicant complained of the refusal to pay her a State pension at 60, relying on the provisions below. 46. Article 1 of Protocol No. 1 provides in its first paragraph : “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.” 47. Article 14 of the Convention provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. The parties ’ submissions 48. The applicant submitted that the denial of her pension must be regarded as an interference with a property right, namely a deprivation of five years ’ worth of pension payments (about 20,000 pounds sterling ), for which no legitimate justification had been provided. Nor had any reasonable and objective justification been provided for any differential treatment between her and other women. 49. The Government accepted that the applicant ’ s entitlement to a State retirement pension, which was a contributory benefit, was a “ property ” right for the purposes of this provision. However, for the reasons given under Article 8 of the Convention, the refusal to recognise the applicant ’ s acquired gender for the purposes of the State pensionable age on 31 October 1997 was within their margin of appreciation and not in violation of Article 1 of Protocol No. 1. Her complaints were in any event more appropriately examined under Article 8 and no separate issue, in their view, arose. B. The Court ’ s assessment 50. The Court would note that under domestic law as it stood at the relevant time the applicant had no right to be paid a State pension at 60 and, on the same basis, it may well be that no proprietary right arose capable of engaging Article 1 of Protocol No. 1 taken alone. The Court does not consider it necessary, however, to decide this point. 51. As regards Article 14 of the Convention, this provision complements the other substantive provisions of the Convention and its Protocols and there can be no room for its application unless the facts in issue fall within the ambit of one or more of them (see, among other authorities, Gaygusuz v. Austria, 16 September 1996, § 36, Reports 1996-IV). Assuming that issues relating to the eligibility for a State pension are sufficiently pecuniary to fall within the scope of Article 1 of Protocol No. 1 for the purposes of Article 14, the Court observes that any failure by the domestic authorities to accord the applicant her pension at the age applicable to women must be regarded, at the time of the first refusal in 1997, as within the Government ’ s margin of appreciation (see paragraph 39 above ). In so far as her pension was again refused after the judgment in Christine Goodwin, in which a violation of Article 8 was found, the Court observes that the applicant has already complained of this aspect also in the context of Article 8. Since this refusal indeed flowed as a consequence from the failure to accord due respect to the applicant ’ s private life, the Court considers that it is essentially an Article 8 matter and that no separate issue arises for the purposes of Article 1 of Protocol No. 1 either taken alone or in conjunction with Article 14 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 52. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 53. The applicant claimed 20,000 pounds sterling (GBP) for the loss of her pension between the ages of 60 and 65. She further claimed GBP 10,312 for non-pecuniary damage, namely the suffering, financial hardship, worry and distress flowing from the lack of legal recognition, referring to the award made in B. v. France ( 25 March 1992, Series A no. 232 ‑ C ). 54. The Government submitted that no award for pecuniary or non-pecuniary damage should be made. To hold otherwise would be to favour this applicant to the prejudice of the applicant in Christine Goodwin. In any event, the sum for non-pecuniary damage claimed was excessive, B. v. France not being an appropriate comparator. 55. The Court reiterates that there must be a clear causal connection between the pecuniary damage claimed by the applicant and the violation of the Convention and that this may, in the appropriate case, include compensation in respect of loss of earnings or other sources of income (see, amongst other authorities, Barberà, Messegué and Jabardo v. Spain (Article 50), 13 June 1994, §§ 16-20, Series A no. 285-C, and Çakıcı v. Turkey [GC], no. 23657/94, § 127, ECHR 1999-IV ). 56. In the present case, the applicant was refused payment of her State pension on 5 September 2002, that is, after the Court had found in the judgment in Christine Goodwin that there was no longer any justification for failing to provide for the legal recognition of the change of gender of post-operative transsexuals. It started to be paid from 22 December 2002. The Court makes a pecuniary award of 1,700 euros (EUR) in respect of the three - month -and-seventeen- day period between those dates. 57. As regards non-pecuniary damage, the Court observes that it considered in Christine Goodwin that such an award was not appropriate and that the essence of redress lay in the implementation, in due course, by the Government of the necessary measures to secure compliance with the Article 8 rights. B. Costs and expenses 58. The applicant claimed GBP 10,708.90, inclusive of value-added tax (VAT), for legal costs and expenses incurred in pursuing her case domestically and GBP 11,463.90, inclusive of VAT, for legal costs and expenses in pursuing her complaints in Strasbourg. 59. The Government considered that the sums claimed for the domestic proceedings were excessive, given the high hourly rate claimed and the relatively short period of time during which the applicant ’ s representatives were instructed (less than a year). They put forward GBP 4,000 as a reasonable figure. As far as the costs before this Court were concerned, they considered that they should be reduced to take into account that part of the application was unsuccessful. They also considered that the sums were not reasonable as to quantum, again given the high hourly rate claimed and the high sums claimed for solicitor and counsel which suggested a degree of duplication of work. They proposed a sum of GBP 5,500. 60. The Court reiterates that where there has been a violation of the Convention it may award the applicant not only actual and necessary costs of the proceedings in Strasbourg, in so far as reasonable in quantum, but also those incurred before the domestic courts for the prevention or redress of the violation (see, for example, I.J.L. and Others v. the United Kingdom ( just satisfaction ), nos. 29522/95, 30056/96 and 30574/96, § 18, 25 September 2001). 61. As regards the costs in domestic proceedings which may be regarded as flowing from the applicant ’ s efforts to prevent a violation of her rights, the Court has taken note of the Government ’ s objections and agrees that the sum is high given the nature and relative brevity of the procedures. It would award the sum of EUR 11, 463 in this respect, inclusive of VAT. 62. Turning to the Strasbourg costs, the Court observes that those aspects of the case which were declared inadmissible were a minor part of the application and that a violation has been found on the central issue of Article 8. It does not find that the sums claimed are unreasonable or that there is any significant element of duplication. It awards EUR 16,686 in this respect, inclusive of VAT. C. Default interest 63. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention. While the applicant’s victim status had ceased when the Gender Recognition Act 2004 had entered into force, thereby providing her with the means on a domestic level to obtain legal recognition, she could however claim to be a victim of the lack of legal recognition from the moment, after the Christine Goodwin judgment, when the British authorities had refused to give effect to her claim, namely from 5 September 2002. |
909 | Tribunal established by law | II. RELEVANT DOMESTIC LAW AND PRACTICE AND RELEVANT INTERNATIONAL MATERIALS A. Applicable substantive law in war crimes cases 1. General principles 24. In accordance with its emergency powers [8], on 24 January 2003 the Office of the High Representative imposed the 2003 Criminal Code. The Code entered into force on 1 March 2003. It was subsequently endorsed by the Parliamentary Assembly of Bosnia and Herzegovina [9]. Article 3 thereof provides that no punishment or other criminal sanction may be imposed on any person for an act which, at the time when it was committed, did not constitute a criminal offence under national or international law and for which a punishment was not prescribed by law. Furthermore, in accordance with Article 4 of that Code, the law that was in effect at the time when a criminal offence was committed applies to the offender; however, if the law has been amended after the commission of the offence, the law that is more lenient to the offender must be applied. In January 2005, Article 4a was added to the 2003 Criminal Code. Like Article 7 § 2 of the Convention, it stipulates that the provisions of Articles 3 and 4 of the Criminal Code must not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of international law. 25. In line with those principles, the domestic courts have, in cases concerning war crimes, been applying either the 1976 Criminal Code [10] or, if it was considered to be more lenient to an offender, the 2003 Criminal Code. Since the intermediate Entities’ Codes (the 1998 Criminal Code of the Federation of Bosnia and Herzegovina [11] and the 2000 Criminal Code of the Republika Srpska [12] ) have rarely, if ever, been applied in such cases, they are irrelevant to the present applicants. 2. The 1976 Criminal Code 26. During the war in Bosnia and Herzegovina, the 1976 Criminal Code was in force throughout the country. It remained in force in the Federation of Bosnia and Herzegovina until 1998 and in the Republika Srpska until 2000 (when it was repealed and replaced by the Entities’ Codes mentioned in paragraph 25 above). Under that Code, war crimes were punishable by imprisonment for a term of 5-15 years or, for the most serious cases, the death penalty; a 20-year prison term could also be imposed instead of the death penalty (see Articles 37, 38 and 142 thereof). Aiders and abettors of war crimes (such as Mr Maktouf) were to be punished as if they themselves had committed war crimes, but their punishment could also be reduced to one year’s imprisonment (Articles 24, 42 and 43 of that Code). The relevant Articles read as follows: Article 24 § 1 “Anybody who intentionally aids another in the commission of a criminal act shall be punished as if he himself had committed it, but the sentence may also be reduced.” Article 37 § 2 “The death penalty may be imposed only for the most serious criminal acts when so provided by statute.” Article 38 §§ 1 and 2 “The sentence of imprisonment may not be shorter than 15 days or longer than 15 years. The court may impose a sentence of imprisonment for a term of 20 years in respect of criminal acts eligible for the death penalty.” Article 42 “The court may impose a sentence below the limit prescribed by statute, or impose a milder type of sentence: (a) when it is provided by statute that the sentence may be reduced [as in Article 24 § 1 of this Code]; (b) when it finds that such extenuating circumstances exist which indicate that the aims of punishment can be attained by a lesser sentence.” Article 43 § 1 “Where conditions exist for the reduction of sentence referred to in Article 42 of this Code, the court shall reduce the sentence within the following limits: (a) if a period of three or more years’ imprisonment is prescribed as the minimum sentence for a criminal act, this may be reduced to one year’s imprisonment; ...” Article 142 § 1 “Whoever in violation of the rules of international law effective at the time of war, armed conflict or occupation, orders or perpetrates ... torture, ... taking of hostages, ... shall be punished by imprisonment for a minimum term of five years or by the death penalty.” 27. The death penalty could no longer be imposed after the entry into force of the Dayton Agreement on 14 December 1995. In particular, pursuant to Annexes 4 and 6 thereto, Bosnia and Herzegovina and its Entities must secure to all persons within their jurisdiction the rights and freedoms provided in the Convention and its Protocols (including Protocol No. 6 on the Abolition of the Death Penalty) and in the other human rights agreements listed therein (including the Second Optional Protocol to the International Covenant on Civil and Political Rights on the death penalty). The domestic authorities have always taken those provisions to mean that no one may be condemned to the death penalty or executed in peacetime, even in respect of criminal offences committed during the 1992 ‑ 95 war [13]. 3. The 2003 Criminal Code 28. Under the 2003 Criminal Code, war crimes attract imprisonment for a term of 10-20 years or, in most serious cases, long-term imprisonment for a term of 20-45 years (Articles 42 and 173 thereof). Aiders and abettors of war crimes (such as Mr Maktouf) are to be punished as if they themselves committed war crimes, but their punishment could also be reduced to five years’ imprisonment (see Articles 31, 49 and 50 of that Code). The relevant Articles read as follows: Article 31 § 1 “Anybody who intentionally aids another in the commission of a criminal act shall be punished as if he himself had committed it, but the sentence may also be reduced.” Article 42 §§ 1 and 2 “The sentence of imprisonment may not be shorter than 30 days or longer than 20 years. For the most serious criminal acts perpetrated with intent, imprisonment for a term of 20 to 45 years may exceptionally be prescribed (long-term imprisonment).” Article 49 “The court may set the sentence below the limit prescribed by statute, or impose a milder type of sentence: (a) when it is provided by statute that the sentence may be reduced [as in Article 31 § 1 of this Code]; (b) when it finds that such extenuating circumstances exist which indicate that the aims of punishment can be attained by a lesser sentence.” Article 50 § 1 “Where conditions exist for the reduction of sentence referred to in Article 49 of this Code, the court shall reduce the sentence within the following limits: (a) if a period of ten or more years’ imprisonment is prescribed as the minimum sentence for a criminal act, it may be reduced to five years’ imprisonment; ...” Article 173 § 1 “Whoever in violation of the rules of international law effective at the time of war, armed conflict or occupation, orders or perpetrates ... torture, ... taking of hostages, ... shall be punished by imprisonment for a minimum term of ten years’ or long-term imprisonment.” 4. Sentencing practices 29. The Entity courts and the State Court have interpreted the principles outlined in paragraph 24 above differently in war crimes cases. With a few exceptions [14], the Entity courts generally apply the 1976 Code. In contrast, the State Court initially held that the 2003 Code was always more lenient and applied it in all cases. In March 2009, however, the State Court began applying a new approach, which was to establish on a case-by-case basis which of the Codes was more lenient to the offender [15]. It has since applied the 1976 Code to less serious instances of war crimes [16]. At the same time, it has continued to apply the 2003 Code to more serious instances of war crimes, which were punishable by the death penalty under the 1976 Code [17], and whenever it held that the 2003 Code was more lenient to the offender for any reason [18]. It should be noted that the new approach concerns only the appeals chambers of the State Court; the trial chambers have continued to apply the 2003 Code in all war crimes cases. According to figures provided by the Government (see paragraph 63 below), appeals chambers rendered 21 decisions in war crimes cases between March 2009, when the new approach was first applied, and November 2012. They applied the 1976 Code in five of them and the 2003 Code in 16 of them. However, the application of the 1976 Code by an appeals chamber did not always lead to a reduction of penalty (in two cases [19], the appeals chamber imposed the same penalty under the 1976 Code as the trial chamber had done under the 2003 Code; in one case [20], the penalty imposed by the appeals chamber under the 1976 Code was even heavier than that imposed by the trial chamber under the 2003 Code). 5. Observations by other international human rights agencies 30. It would appear that the application of different Criminal Codes in war crimes cases, as described in the previous paragraph, has led to diverse sentencing practices. According to a report published by the Organisation for Security and Cooperation in Europe (OSCE) in 2008 (“Moving towards a Harmonised Application of the Law Applicable in War Crimes Cases before Courts in Bosnia and Herzegovina”), the Entity courts generally imposed lighter sentences than the State Court. The relevant part of that report reads as follows: “Usage of different criminal codes also leads to marked discrepancies between the sentences delivered in state and entity courts for war crimes. This stems from the wide variances in the sentences enforceable under these codes. For instance, an entity court has sentenced a defendant convicted of cruel treatment of prisoners to a term of one year and eight months’ imprisonment even as the State Court has sentenced another defendant charged with a comparable act to imprisonment for a period of ten-and-a-half years. On average, sentences delivered by the [State Court] in war crimes cases have been almost double the length of those delivered by entity courts.” 31. In a 2011 report (“Delivering Justice in Bosnia and Herzegovina”), the OSCE held that the application of different Criminal Codes at the State- and Entity-levels could be problematic in certain types of war crimes cases. The relevant part of that report reads as follows: “Certainly, it is acceptable that the issue of which criminal code should be applied to war crime cases is assessed on a case-by-case basis. In many cases before entity courts, the application of the [1976] Code does not represent a serious problem in practice. In general, the cases in which the application of different codes undermines the principle of equality before the law are those in which the court, by applying the [2003] Code, could sentence the accused to a sentence higher than the 15 or 20 years maximum sentence prescribed under the [1976] Code. In these cases, the application of the [1976] Code arguably does not allow the court to deliver a sentence which is proportional to the gravity of the crimes. Nor are the sentences in those cases harmonized with practice at the state level. Another category of cases in which the application of the [1976] Code is problematic are those in which the accused’s conduct is arguably best captured under the concept of crimes against humanity or under the theory of command responsibility, which are expressly prescribed only under the [2003] Code.” 32. The UN Human Rights Committee, in its “concluding observations” on Bosnia and Herzegovina in 2012 (CCPR/C/BIH/CO/1), expressed similar concerns (at § 7): “While appreciating efforts to deal with war crime cases such as the implementation of the National War Crimes Processing Strategy, the Committee remains concerned at the slow pace of prosecutions, particularly those relating to sexual violence, as well as lack of support to victims of such crimes. The Committee is also concerned at the lack of efforts to harmonise jurisprudence on war crimes among entities, and that entity-level courts use the archaic criminal code of the former Socialist Federal Republic of Yugoslavia (SFRY) that does not, inter alia, define crimes against humanity, command responsibility, sexual slavery and forced pregnancy. The Committee is concerned that this might affect consistency in sentencing among entities (arts. 2 and 14). The State party should expedite the prosecution of war crime cases. The State party should also continue to provide adequate psychological support to victims of sexual violence, particularly during the conduct of trials. Furthermore, the State party should ensure that the judiciary in all entities strongly pursues efforts aimed at harmonising jurisprudence on war crimes and that charges for war crimes are not brought under the archaic criminal code of the former SFRY, which does not recognise certain offences as crimes against humanity.” 33. In its Opinion on Legal Certainty and the Independence of Judiciary in Bosnia and Herzegovina (no. 648/2011), issued on 18 June 2012, the Venice Commission noted that the existence of several legal orders and the fragmentation of the judiciary made it difficult for Bosnia and Herzegovina to fulfil the requirements of, inter alia, consistency in its legislation and case-law. B. State Court 34. In accordance with its emergency powers, on 12 November 2000 the Office of the High Representative imposed the State Court Act 2000 [21] establishing the State Court. The Act entered into force on 8 December 2000. It was subsequently endorsed by the Parliamentary Assembly of Bosnia and Herzegovina. 35. As part of the ICTY’s completion strategy mentioned in paragraph 9 above, war crimes chambers were established within the State Court in early 2005. During a transitional phase which ended on 31 December 2012, some international judges were included in the composition of those chambers. Initially, they were appointed by the Office of the High Representative in accordance with its 2004 agreement with the authorities of Bosnia and Herzegovina [22]. The mandate of those judges was two years and was renewable. A typical decision appointing an international judge read, in the relevant part, as follows: “... Noting the joint recommendation for the appointment of an International Judge of 22 April 2005 signed by the Registrar of the Registry for Section I for War Crimes and Section II for Organized Crime, Economic Crime and Corruption of the Criminal and Appellate Divisions of the [State Court] and [Special Departments of the Prosecutor’s Office of Bosnia and Herzegovina], President of the [State Court] and President of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina; The High Representative hereby issues the following decision on appointment of an International Judge to Section I for War Crimes of the Criminal and Appellate Divisions of the [State Court] 1. As provided by section 65 § 4, as amended, of the [State Court Act 2000] the following person is hereby appointed as International Judge of Section I for War Crimes of the Criminal and Appellate Divisions of the [State Court]: Pietro Spera 2. The initial term of appointment ... shall be for two years, subject to reappointment pursuant to the [State Court Act 2000]. The [appointee] is required to reside in Bosnia in Herzegovina during the term of his appointment and cannot perform any other function that is incompatible with the judicial service or that can impede his performance of the judicial function on a full time basis. To the extent applicable, all other requirements for judicial service as set forth in the [State Court Act 2000] shall apply... 3. The International Registrar of the Registry for Section I for War Crimes and Section II for Organized Crime, Economic Crime and Corruption of the Criminal and Appellate Divisions of the [State Court] and [Special Departments of the Prosecutor’s Office] shall notify the High Representative of any occurrence, including the ones as referred to in paragraph 2 [above], that may cause the inability of the [appointee] to perform his mandate. In the event of resignation by or inability of the [appointee] to complete his mandate, the High Representative will appoint a successor to complete the above-mentioned term of office. 4. During the term of appointment, the appointee shall complete all training programs as directed by the President of the [State Court] and adhere to all professional conduct standards as established by the [State Court]. 5. The [appointee] shall perform the duty of judge in accordance with the Constitution and laws of Bosnia and Herzegovina, take decisions upon his best knowledge, conscientiously, responsibly and impartially to uphold the rule of law, and shall protect the freedoms and rights of individuals granted by the Constitution and the European Convention on Human Rights. Before taking up his official function, which occurs not later then 6 May 2005, the International Judge shall take a solemn declaration before the President of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina to that effect. 6. This Decision shall enter into force forthwith and shall be published without delay in the Official Gazette of Bosnia and Herzegovina.” 36. In September 2006 the Office of the High Representative and Bosnia and Herzegovina revised the procedure for the appointment of international judges to the State Court [23] : international judges were thereafter appointed by a specialised professional body, the High Judicial and Prosecutorial Council of Bosnia and Herzegovina, also for a renewable period of two years. C. Jurisdiction over war crimes cases 37. Domestic war crimes cases can be divided into two categories. 38. Old cases (reported before 1 March 2003) remain with Entity courts if an indictment entered into force before 1 March 2003. If an indictment did not enter into force before 1 March 2003, they remain with Entity courts unless the State Court decides to take over any such case in accordance with the criteria set out in paragraph 40 below (see Article 449 of the 2003 Code of Criminal Procedure [24] ). 39. New cases (reported after 1 March 2003) fall under the jurisdiction of the State Court, but the State Court may transfer any such case to the competent Entity court in accordance with the criteria set out in paragraph 40 below (see Article 27 of the 2003 Code of Criminal Procedure). 40. In accordance with the Book of Rules on the Review of War Crimes Cases of 28 December 2004 [25] the following types of cases were, as a rule, to be heard before the State Court: (a) cases concerning genocide, extermination, multiple murders, rape and other serious sexual assaults as part of a system (such as in camps), enslavement, torture, persecution on a widespread and systematic scale, mass forced detention in camps; (b) cases against past or present military commanders, past or present political leaders, past or present members of the judiciary, past or present police chiefs, camp commanders, persons with a past or present notorious reputation, multiple rapists; (c) cases with insider or suspect witnesses; (d) if there was a risk of witness intimidation; and (e) cases involving perpetrators in an area which is sympathetic to them or where the authorities have a vested interest in preventing public scrutiny of the crimes. All other war crimes cases were, as a rule, to be heard before the Entity courts. In December 2008 the authorities adopted the National War Crimes Strategy, providing, among other things, a new set of criteria. They are, however, almost identical to those outlined above. D. Reopening of a criminal trial 41. Article 327 of the 2003 Code of Criminal Procedure provides that a criminal trial may be reopened in favour of the offender where the European Court of Human Rights has found that human rights were violated during the trial and that the verdict was based on these violations. An application for the reopening of a criminal trial is not subject to deadlines. It may even be lodged after the sentence has been served (Article 329 § 2 of this Code). Pursuant to Article 333 § 4 of this Code, in any new trial the verdict may not be modified to the detriment of the accused (prohibition of reformatio in peius ). E. International humanitarian law 42. Pursuant to the 1949 Geneva Conventions (see, for example, Article 146 of the Convention relative to the Protection of Civilian Persons in Time of War), the High Contracting Parties must enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of those Conventions. At the same time, the accused persons must in all circumstances benefit from safeguards of proper trial and defence that are not less favourable than those provided by the Convention relative to the Treatment of Prisoners of War. 43. Pursuant to Article 99 of the Convention relative to the Treatment of Prisoners of War no prisoner of war may be tried or sentenced for an act which is not forbidden, at the time the said act was committed, by the law of the Detaining Power or by international law. The rule of non-retroactivity of crimes and punishments also appears in the Additional Protocols I and II of 1977 in almost identical terms. Article 75 § 4 (c) of the Additional Protocol I reads as follows: “No one shall be accused or convicted of a criminal offence on account of any act or omission which did not constitute a criminal offence under the national or international law to which he was subject at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 44. The first applicant, Mr Maktouf, complained that he had not been afforded a fair hearing by an independent tribunal, in violation of Article 6 § 1 of the Convention. He submitted that the adjudicating tribunal had not been independent within the meaning of that provision, notably because two of its members had been appointed by the Office of the High Representative for a renewable period of two years. Article 6 § 1, in the relevant part, reads: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.” A. The parties’ submissions 1. The Government 45. The Government maintained that Bosnia and Herzegovina could not be held responsible for the conduct of the High Representative (they relied on Berić and Others v. Bosnia and Herzegovina (dec.), nos. 36357/04 et al ., ECHR 2007 ‑ XII). They therefore invited the Court to declare this complaint inadmissible as being incompatible ratione personae. Even if the Court had jurisdiction ratione personae to deal with this complaint, the Government submitted that it was manifestly ill-founded. The Convention did not require that judges be appointed for their lifetime, as illustrated by Sramek v. Austria, 22 October 1984, Series A no. 84, in which the Court regarded appointment for a renewable period of three years as sufficient. Moreover, the international members of the State Court had been appointed as judges in their countries of origin by independent bodies and had been seconded to the State Court as a means of international assistance to war-torn Bosnia and Herzegovina. 2. The applicant 46. The applicant responded that Bosnia and Herzegovina had a duty to organise its legal system in such a way as to ensure the independence of the judiciary. He submitted that the short duration of the international judges’ mandate (two years) with the possibility of reappointment cast serious doubt on their ability to make decisions independently. He added, without relying on any particular authority, that according to accepted criteria, mandates of less than six years were not satisfactory as a guarantee of judges’ independence. Further, the international judges of the State Court were appointed, at the relevant time, by the Office of the High Representative, which could be compared to a national government. In view of all of the above, the applicant concluded that the adjudicating tribunal had not been independent within the meaning of Article 6 § 1 of the Convention. 3. The third party 47. The Office of the High Representative, in its third-party submissions of November 2012, asserted that the presence of international judges in the State Court had been aimed at promoting independence and impartiality, as well as the transfer of required legal knowledge. It also submitted that its decisions on appointments of international judges had been a formality, due to the fact that no domestic authority had had powers to appoint non-nationals prior to late 2006 (see paragraph 36 above). As to the duration of their mandate, the Office of the High Representative contended that this had been due to funding restrictions in the redeployment of foreign judicial officials: namely, budgetary projections and restrictions had disallowed a funding guarantee for a longer period. Lastly, the third party maintained that the international judges’ terms had been duly regulated and that they could not have been dismissed arbitrarily. B. The Court’s assessment 48. The Court notes from the outset that the establishment of war crimes chambers within the State Court consisting of international and national judges was an initiative of international institutions (see paragraph 9 above). However, it is not required in the instant case to decide whether the respondent Government could nevertheless be held liable for the alleged breach of Article 6 § 1 of the Convention, since it finds that this complaint is in any event manifestly ill-founded for the reasons set out below. 49. By way of general observation, the Court reiterates that in determining in previous cases whether a body could be considered as “independent” – notably of the executive and of the parties to the case – it has had regard to such factors as the manner of appointment of its members, the duration of their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence (see, for example, Campbell and Fell v. the United Kingdom, 28 June 1984, § 78, Series A no. 80, and Brudnicka and Others v. Poland, no. 54723/00, § 38, ECHR 2005 ‑ II). The irremovability of judges by the executive during their term of office is in general considered as a corollary of their independence and thus included in the guarantees of Article 6 § 1 (see Campbell and Fell, cited above, § 80). Although the notion of the separation of powers between the political organs of government and the judiciary has assumed growing importance in the Court’s case-law (see Stafford v. the United Kingdom [GC], no. 46295/99, § 78, ECHR 2002-IV), appointment of judges by the executive or the legislature is permissible, provided that appointees are free from influence or pressure when carrying out their adjudicatory role (see Flux v. Moldova (no. 2), no. 31001/03, § 27, 3 July 2007). 50. Turning to the present case, the Court notes that the independence of the national member of the adjudicating tribunal was not challenged. As to its international members, there is no reason to doubt their independence of the political organs of Bosnia and Herzegovina and the parties to the case. Their appointment was indeed motivated by a desire, inter alia, to reinforce the appearance of independence of the State Court’s war crimes chambers (in view of remaining ethnic bias and animosity in the population at large in the post-war period) and to restore public confidence in the domestic judicial system. 51. Although they were appointed by the High Representative, the Court finds no reason to question that the international members of the State Court were independent of that institution. Their appointments were made on the basis of a recommendation from the highest judicial figures in Bosnia and Herzegovina (see the decision cited in paragraph 35 above). Like the national members whose independence was undisputed, once appointed, the judges in question had to make a solemn declaration before the High Judicial and Prosecutorial Council of Bosnia and Herzegovina and were required to perform their judicial duties in accordance with national law and to respect the rules of professional conduct established by the State Court. All of the requirements for judicial service as set forth in the State Court Act 2000 applied to them by analogy (see paragraph 35 above). The fact that the judges in question had been seconded from amongst professional judges in their respective countries represented an additional guarantee against outside pressure. Admittedly, their term of office was relatively short, but this is understandable given the provisional nature of the international presence at the State Court and the mechanics of international secondments. 52. Against this background, the Court sees no reason for calling into question the finding of the Constitutional Court of Bosnia and Herzegovina in this case that the State Court was independent within the meaning of Article 6 § 1 of the Convention (see paragraph 15 above; contrast Henryk Urban and Ryszard Urban v. Poland, no. 23614/08, §§ 45-53, 30 November 2010). 53. Accordingly, this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION 54. Both applicants complained under Article 7 of the Convention that a more stringent criminal law had been applied to them than that which had been applicable at the time of their commission of the criminal offences. Article 7 provides: “1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.” A. Introductory remark 55. Serious violations of international humanitarian law falling under the State Court’s jurisdiction can be divided into two categories. Some crimes, notably crimes against humanity, were introduced into national law in 2003. The State Court and the Entity courts therefore have no other option but to apply the 2003 Criminal Code in such cases (see the international materials cited in paragraphs 31 and 32 above). In this regard, the Court reiterates that in Šimšić v. Bosnia and Herzegovina (dec.), no. 51552/10, 10 April 2012, the applicant complained about his 2007 conviction for crimes against humanity with regard to acts which had taken place in 1992. The Court examined that case, inter alia, under Article 7 of the Convention and declared it manifestly ill-founded. It considered the fact that crimes against humanity had not been criminal offences under national law during the 1992-95 war to be irrelevant, since they had clearly constituted criminal offences under international law at that time. In contrast, the war crimes committed by the present applicants constituted criminal offences under national law at the time when they were committed. The present case thus raises entirely different questions to those in the Šimšić case. B. Admissibility 56. The Government argued that Mr Damjanović’s complaint should be dismissed in view of his failure to lodge a constitutional appeal in a timely manner. They had no objections with regard to the admissibility of Mr Maktouf’s complaint. 57. Mr Damjanović alleged that a constitutional appeal was not an effective remedy in respect of this complaint, as it did not offer reasonable prospects of success (he relied on the Constitutional Court’s decision in the Maktouf case, finding no breach of Article 7, and many subsequent cases in which the same reasoning had been applied). 58. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention requires applicants first to use the domestic remedies, thus dispensing States from answering before the European Court for their acts before they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption that the domestic system provides an effective remedy in respect of the alleged breach. The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time; that is to say, that the remedy was accessible and capable of providing effective and sufficient redress in respect of the applicant’s complaints. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see, among other authorities, Akdivar and Others v. Turkey, 16 September 1996, §§ 65-69, Reports of Judgments and Decisions 1996 ‑ IV; Mirazović v. Bosnia and Herzegovina (dec.), no. 13628/03, 6 May 2006; and Scoppola v. Italy (no. 2) [GC], no. 10249/03, §§ 68-71, 17 September 2009). 59. The Court notes that on 30 March 2007 the Constitutional Court of Bosnia and Herzegovina found no breach of Article 7 of the Convention in nearly identical circumstances in the Maktouf case, and has since applied the same reasoning in numerous cases. Indeed, the Government did not produce before the Court any decision by the Constitutional Court finding a violation of Article 7 in a similar case. Furthermore, the State Court referred in the Damjanović case to the Constitutional Court’s decision in the Maktouf case. 60. The Court concludes that a constitutional appeal did not offer reasonable prospects of success for Mr Damjanović’s complaint under Article 7 of the Convention and dismisses the Government’s objection. As this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and it is not inadmissible on any other grounds, it must be declared admissible. C. Merits 1. The parties’ submissions (a) The applicants 61. The prohibition of the retroactive application of the criminal law to the disadvantage of an accused was, according to the applicants, a well-established rule of both international and domestic law. The 2003 Criminal Code, being more severe than the 1976 Code with regard to the minimum sentences for war crimes, should not therefore have been applied in their case. In this regard, they referred to a small number of cases in which the State Court had considered the 1976 Code to be more lenient (see paragraph 29 above), criticising at the same time the State Court for not applying that Code consistently. Given that their convictions had been based exclusively on national law, they submitted that the Government’s reliance on the “general principles of law recognised by civilised nations” within the meaning of Article 7 § 2 was misleading. They further submitted that their case should be distinguished from the cases to which the Government and the third party had referred (namely S.W. v. the United Kingdom, 22 November 1995, Series A no. 335 ‑ B, and Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, ECHR 2001 ‑ II). In particular, the S.W. case concerned the gradual development of the criminal law through a line of case-law, over the course of several years, in order to take account of society’s changing attitudes. This was clearly different from the enactment of new legislation prescribing heavier penalties for some criminal offences, as in the present case. The applicants added that the States should not change their laws after an event so as to punish perpetrators, no matter how controversial the offence in question. (b) The Government 62. The Government maintained that the 2003 Criminal Code was more lenient to the applicants than the 1976 Criminal Code, given the absence of the death penalty (they referred to Karmo v. Bulgaria (dec.), no. 76965/01, 9 February 2006). That was indeed the opinion of the Constitutional Court of Bosnia and Herzegovina in the present case (see paragraph 15 above). They further argued that even if the 2003 Code was not more lenient to the applicants, it was still justified to apply it in this case, for the following reasons. First, the Government claimed that Article 7 § 2 of the Convention provided an exception to the rule of non-retroactivity of crimes and punishments set out in Article 7 § 1 (they referred to Naletilić v. Croatia (dec.), no. 51891/99, ECHR 2000 ‑ V). In other words, if an act was criminal at the time when it was committed both under “the general principles of law recognised by civilised nations” and under national law, then a penalty even heavier than that which was applicable under national law might be imposed. It was clear that the acts committed by the present applicants were criminal under “the general principles of law recognised by civilised nations”. As a result, the rule of non-retroactivity of punishments did not apply and, in the Government’s opinion, any penalty could have been imposed on the applicants. Secondly, the Government submitted that the interests of justice required that the principle of non-retroactivity be set aside in this case (they referred in this connection to S.W., cited above; Streletz, Kessler and Krenz, cited above; and a duty under international humanitarian law to punish war crimes adequately). The rigidity of the principle of non-retroactivity, it was argued, had to be softened in certain historical situations so that this principle would not be to the detriment of the principle of equity. 63. As to the question whether the State Court had changed its practice with regard to sentencing in war crimes cases, the Government accepted that the 1976 Code had been applied on several occasions since March 2009 (see paragraph 29 above). However, they contended that the 2003 Code was still applied in most cases. Specifically, the State Court issued 102 decisions between March 2009 and November 2012 (59 by trial chambers and 43 by appeals chambers). The trial chambers had always applied the 2003 Code. The appeals chambers had applied that Code in all the cases concerning crimes against humanity and genocide. As to war crimes, the appeals chambers had applied the 1976 Code in five cases and the 2003 Code in 16 cases. The Government criticised the approach adopted in those first five cases and argued that the State Court should always have applied the 2003 Code in war crimes cases. (c) The third party 64. The third-party submissions of the Office of the High Representative of November 2012 were along the same lines as the Government’s submissions. Notably, the third party claimed, like the Government, that the acts committed by the present applicants were criminal under “the general principles of law recognised by civilised nations” and that therefore the rule of non-retroactivity of punishments did not apply in this case. The Office of the High Representative also emphasised that although the 2003 Code had been applied in this case, the applicants’ sentences were nevertheless within the latitude of both the 1976 Code and the 2003 Code. Lastly, the third party referred to the UN Human Rights Committee’s “concluding observations” on Bosnia and Herzegovina (CCPR/C/BIH/CO/1), cited in paragraph 32 above. 2. The Court’s assessment 65. At the outset, the Court reiterates that it is not its task to review in abstracto whether the retroactive application of the 2003 Code in war crimes cases is, per se, incompatible with Article 7 of the Convention. This matter must be assessed on a case-by-case basis, taking into consideration the specific circumstances of each case and, notably, whether the domestic courts have applied the law whose provisions are most favourable to the defendant (see Scoppola, cited above, § 109). 66. The general principles concerning Article 7 were recently restated in Kononov v. Latvia [GC], no. 36376/04, § 185, ECHR 2010: “The guarantee enshrined in Article 7, an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 in time of war or other public emergency. It should be construed and applied, as follows from its object and purpose, so as to provide effective safeguards against arbitrary prosecution, conviction and punishment. Accordingly, Article 7 is not confined to prohibiting the retrospective application of the criminal law to an accused’s disadvantage: it also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty ( nullum crimen, nulla poena sine lege ) and the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy. It follows that an offence must be clearly defined in law. This requirement is satisfied where the individual can know from the wording of the relevant provision – and, if need be, with the assistance of the courts’ interpretation of it and with informed legal advice – what acts and omissions will make him criminally liable. When speaking of ‘law’, Article 7 alludes to the same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises written and unwritten law and which implies qualitative requirements, notably those of accessibility and foreseeability. As regards foreseeability in particular, the Court recalls that however clearly drafted a legal provision may be in any system of law including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in certain Convention States, the progressive development of the criminal law through judicial law-making is a well-entrenched and necessary part of legal tradition. Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen ( Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 50, ECHR 2001 ‑ II; K. ‑ H.W. v. Germany [GC], no. 37201/97, § 85, ECHR 2001 ‑ II (extracts); Jorgic v. Germany, no. 74613/01, §§ 101-109, 12 July 2007; and Korbely v. Hungary [GC], no. 9174/02, §§ 69-71, 19 September 2008).” 67. Turning to the present case, the Court notes that the definition of war crimes is the same in Article 142 § 1 of the 1976 Criminal Code, which was applicable at the time the offences were committed, and Article 173 § 1 of the 2003 Criminal Code, which was applied retroactively in this case (see paragraphs 26 and 28 above). Moreover, the applicants did not dispute that their acts constituted criminal offences defined with sufficient accessibility and foreseeability at the time when they were committed. The lawfulness of the applicants’ convictions is therefore not an issue in the instant case. 68. It is further noted, however, that the two Criminal Codes provide for different sentencing frameworks regarding war crimes. Pursuant to the 1976 Code, war crimes were punishable by imprisonment for a term of 5-15 years or, for the most serious cases, the death penalty (see Article 142 § 1 in conjunction with Articles 37 § 2 and 38 § 1 of the 1976 Code). A 20-year prison term could have also been imposed instead of the death penalty (see Article 38 § 2 thereof). Aiders and abettors of war crimes, like Mr Maktouf, were to be punished as if they themselves had committed the crimes, but their punishment could be reduced to one year’s imprisonment (see Article 42 of the same Code in conjunction with Articles 24 § 1 and 43 § 1 thereof). Pursuant to the 2003 Code, war crimes attract imprisonment for a term of 10-20 years or, for the most serious cases, long-term imprisonment for a term of 20-45 years (see Article 173 § 1 of the 2003 Code in conjunction with Article 42 §§ 1 and 2 of that Code). Aiders and abettors of war crimes, such as Mr Maktouf, are to be punished as if they themselves had committed the crimes, but their punishment could be reduced to five years’ imprisonment (Article 49 in conjunction with Articles 31 § 1 and 50 § 1 of that Code). While pointing out that his sentence should be reduced as far as possible (see paragraph 14 above), the State Court sentenced Mr Maktouf to five years’ imprisonment, the lowest possible sentence under the 2003 Code. In contrast, under the 1976 Code he could have been sentenced to one year’s imprisonment. As regards Mr Damjanović, he was sentenced to 11 years’ imprisonment, slightly above the minimum of ten years. Under the 1976 Code, it would have been possible to impose a sentence of only five years. 69. As regards the Government’s argument that the 2003 Code was more lenient to the applicants than the 1976 Code, given the absence of the death penalty, the Court notes that only the most serious instances of war crimes were punishable by the death penalty pursuant to the 1976 Code (see paragraph 26 above). As neither of the applicants was held criminally liable for any loss of life, the crimes of which they were convicted clearly did not belong to that category. Indeed, as observed above, Mr Maktouf received the lowest sentence provided for and Mr Damjanović a sentence which was only slightly above the lowest level set by the 2003 Code for war crimes. In these circumstances, it is of particular relevance in the present case which Code was more lenient in respect of the minimum sentence, and this was without doubt the 1976 Code. Such an approach has been taken by at least some of the appeals chambers in the State Court in recent cases (see paragraph 29 above). 70. Admittedly, the applicants’ sentences in the instant case were within the latitude of both the 1976 Criminal Code and the 2003 Criminal Code. It thus cannot be said with any certainty that either applicant would have received lower sentences had the former Code been applied (contrast Jamil v. France, 8 June 1995, Series A no. 317 ‑ B; Gabarri Moreno v. Spain, no. 68066/01, 22 July 2003; Scoppola, cited above). What is crucial, however, is that the applicants could have received lower sentences had that Code been applied in their cases. As already observed in paragraph 68 above, the State Court held, when imposing Mr Maktouf’s sentence, that it should be reduced to the lowest possible level permitted by the 2003 Code. Similarly, Mr Damjanović received a sentence that was close to the minimum level. It should further be noted that, according to the approach followed in some more recent war crimes cases referred to in paragraph 29 above, the appeals chambers of the State Court had opted for the 1976 Code rather than the 2003 Code, specifically with a view to applying the most lenient sentencing rules. Accordingly, since there exists a real possibility that the retroactive application of the 2003 Code operated to the applicants’ disadvantage as concerns the sentencing, it cannot be said that they were afforded effective safeguards against the imposition of a heavier penalty, in breach of Article 7 of the Convention. 71. The Court is unable to accept the Government’s suggestion that its decision in Karmo, cited above, offers guidance for its assessment of the case now under consideration. The circumstances are significantly different. Whilst the present applicants were sentenced to relatively short terms of imprisonment, the applicant in Karmo had been sentenced to death and the issue was whether it was contrary to Article 7 to commute the death penalty to life imprisonment following the abolition of the death penalty in 1998. The Court considered that it was not and rejected the complaint under Article 7 as manifestly ill-founded. 72. Furthermore, the Court is unable to agree with the Government’s argument that if an act was criminal under “the general principles of law recognised by civilised nations” within the meaning of Article 7 § 2 of the Convention at the time when it was committed then the rule of non-retroactivity of crimes and punishments did not apply. This argument is inconsistent with the travaux préparatoires which imply that Article 7 § 1 can be considered to contain the general rule of non-retroactivity and that Article 7 § 2 is only a contextual clarification of the liability limb of that rule, included so as to ensure that there was no doubt about the validity of prosecutions after the Second World War in respect of the crimes committed during that war (see Kononov, cited above, § 186). It is thus clear that the drafters of the Convention did not intend to allow for any general exception to the rule of non-retroactivity. Indeed, the Court has held in a number of cases that the two paragraphs of Article 7 are interlinked and are to be interpreted in a concordant manner (see, for example, Tess v. Latvia (dec.), no. 34854/02, 12 December 2002, and Kononov, cited above, § 186). 73. The Government’s reliance in this regard on S.W. and Streletz, Kessler and Krenz (cited above) likewise cannot be accepted. The present case does not concern an issue of progressive development of the criminal law through judicial interpretation, as in the case of S.W. Nor does the case at hand concern a State practice that is inconsistent with the State’s written or unwritten law. In Streletz, Kessler and Krenz, the applicants’ acts had constituted offences defined with sufficient accessibility and foreseeability in the criminal law of the German Democratic Republic at the material time, but those provisions had not been enforced for a long time prior to the regime change in 1990. 74. The Court sees no need to examine in any detail the Government’s further argument that a duty under international humanitarian law to punish war crimes adequately required that the rule of non-retroactivity be set aside in this case. It suffices to note that the rule of non-retroactivity of crimes and punishments also appears in the Geneva Conventions and their Additional Protocols (see paragraph 43 above). Moreover, as the applicants’ sentences were within the compass of both the 1976 and 2003 Criminal Codes, the Government’s argument that the applicants could not have been adequately punished under the former Code is clearly unfounded. 75. Lastly, while the Court in principle agrees with the Government that States are free to decide their own penal policy (see Achour v. France [GC], no. 67335/01, § 44, ECHR 2006 ‑ IV, and Ould Dah v. France (dec.), no. 13113/03, ECHR 2009), they must comply with the requirements of Article 7 in doing so. D. Conclusion 76. Accordingly, the Court considers that there has been a violation of Article 7 of the Convention in the particular circumstances of the present case. This conclusion should not be taken to indicate that lower sentences ought to have been imposed, but simply that the sentencing provisions of the 1976 Code should have been applied in the applicants’ cases. III. THE APPLICANTS’ DISCRIMINATION COMPLAINT 77. Lastly, the applicants argued, without going into any detail, that the fact that their cases had been heard before the State Court, while many other war crimes cases had been heard before Entity courts, amounted to a breach of Article 14 of the Convention and/or Article 1 of Protocol No. 12 to the Convention. Article 14 provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article 1 of Protocol No. 12 provides: “1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.” 78. The Government invited the Court to follow its Šimšić case-law, cited above. They added that the distribution of war crimes cases between the State Court and Entity courts was not arbitrary: it was done by the State Court on the basis of objective and reasonable criteria. As regards Mr Maktouf’s case, the Government argued that it was sensitive and complex, as it had been one of the first cases dealing with crimes committed by foreign mujahedin (the ICTY had dealt with that issue for the first time in 2006 in Hadžihasanović and Kubura ). In addition, ritual beheadings, carried out at their camps, had caused alarm among the local population. The Government asserted that Mr Damjanović’s case was also sensitive given, inter alia, that it concerned the torture of a large number of victims. Another reason for the transfer of Mr Damjanović’s case to the State Court was that better facilities were available for the protection of witnesses at the State Court; there was thus a higher risk of witness intimidation at the Entity level. 79. The applicants disagreed with the Government. They maintained that their cases were neither sensitive nor complex. Mr Maktouf also argued that his Iraqi nationality and his religion had been the key reason for the State Court’s decision to retain jurisdiction. 80. The Office of the High Representative, in its third-party submissions of November 2012, agreed with the Government. 81. The notion of discrimination has been interpreted consistently in the Court’s case-law with regard to Article 14 of the Convention. This case-law has made it clear that discrimination means treating differently, without an objective and reasonable justification, persons in similar situations. The same term, discrimination, is also used in Article 1 of Protocol No. 12. Notwithstanding the difference in scope between those provisions, the meaning of this term in Article 1 of Protocol No. 12 was intended to be identical to that in Article 14 (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 55, ECHR 2009). 82. In the present case, the Court first notes that given the large number of war crimes cases in post-war Bosnia and Herzegovina, it is inevitable that the burden must be shared between the State Court and Entity courts. If not, the respondent State would not be able to honour its Convention obligation to bring to justice those responsible for serious violations of international humanitarian law in a timely manner (see Palić v. Bosnia and Herzegovina, no. 4704/04, 15 February 2011). 83. The Court is aware that the Entity courts imposed in general lighter sentences than the State Court at the relevant time (see paragraph 30 above), but that difference in treatment is not to be explained in terms of personal characteristics and, therefore, does not amount to discriminatory treatment. Whether a case was to be heard before the State Court or before an Entity court was a matter decided on a case-by-case basis by the State Court itself with reference to objective and reasonable criteria outlined in paragraph 40 above (contrast Camilleri v. Malta, no. 42931/10, 22 January 2013, in which such a decision was dependent only on the prosecutor’s discretion). Accordingly, in the particular circumstances of this case, there is no appearance of a violation of either Article 14 taken in conjunction with Article 7 of the Convention or of Article 1 of Protocol No. 12 (see Magee v. the United Kingdom, no. 28135/95, § 50, ECHR 2000 VI, and Šimšić, cited above). 84. The applicants’ discrimination complaint is therefore manifestly ill ‑ founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 85. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damage 86. Mr Maktouf claimed that he had been unable to run his company as a result of his trial and punishment and that he had suffered damage in the amount of 500,000 euros (EUR). 87. The Government considered the claim to be unsubstantiated. 88. The Court agrees with the Government and rejects this claim for lack of substantiation. B. Non-pecuniary damage 89. Mr Maktouf claimed EUR 100,000 under this head. Mr Damjanović also claimed compensation for non-pecuniary damage, but failed to specify an amount which in his view would be equitable. 90. The Government considered Mr Maktouf’s claim to be excessive. 91. Since it is not certain that the applicants would indeed have received lower sentences had the 1976 Code been applied (contrast Ecer and Zeyrek v. Turkey, nos. 29295/95 and 29363/95, ECHR 2001 ‑ II, and Scoppola, cited above), the Court holds in the particular circumstances of this case that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage suffered by the applicants. C. Costs and expenses 92. Mr Maktouf further claimed EUR 36,409 for the costs and expenses incurred before the domestic courts. Mr Damjanović was granted legal aid under the Court’s legal-aid scheme in the total amount of EUR 1,545 for his counsel’s appearance at the hearing before the Grand Chamber. He sought reimbursement of additional costs and expenses incurred before the Court in the amount of EUR 13,120. 93. The Government considered the claims to be unsubstantiated. 94. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. That is, the applicant must have paid them, or be bound to pay them, pursuant to a legal or contractual obligation, and they must have been unavoidable in order to prevent the violation found or to obtain redress. The Court requires itemised bills and invoices that are sufficiently detailed to enable it to determine to what extent the above requirements have been met. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicants EUR 10,000 each, plus any tax that may be chargeable to them, under this head. D. Default interest 95. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court declared the first applicant’s complaint under Article 6 § 1 of the Convention inadmissible as being manifestly ill-founded, seeing no reason for calling into question the finding of the Constitutional Court of Bosnia and Herzegovina in this case that the State Court had been independent. It found in particular that there were no reasons to doubt that the international judges of the State Court were independent of the political organs of Bosnia and Herzegovina, of the parties to the case and of the institution of the High Representative. The international judges’ appointment had precisely been motivated by a desire to reinforce the independence of the State Court’s war crime chambers and to restore public confidence in the judicial system. Moreover, the fact that the judges in question had been seconded from amongst professional judges in their respective countries represented an additional guarantee against outside pressure. Admittedly, their term of office was relatively short, but this was understandable given the provisional nature of the international presence at the State Court and the mechanics of international secondments. |
957 | State’s act on its own territory producing effect in another State | II. RELEVANT DOMESTIC LAW AND PRACTICE IN THE UNITED KINGDOM A. Criminal law 27. In England murder is defined as the unlawful killing of a human being with malice aforethought. The penalty is life imprisonment. The death penalty cannot be imposed for murder (Murder (Abolition of the Death Penalty) Act 1965, section 1). Section 2 of the Homicide Act 1957 provides that where a person kills another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts in doing the killing. A person who but for the section would be liable to be convicted of murder shall be liable to be convicted of manslaughter. 28. English courts do not exercise criminal jurisdiction in respect of acts of foreigners abroad except in certain cases immaterial to the present proceedings. Consequently, neither the applicant, as a German citizen, nor Elizabeth Haysom, a Canadian citizen, was or is amenable to criminal trial in the United Kingdom. B. Extradition 29. The relevant general law on extradition is contained in the Extradition Acts 1870-1935. 30. The extradition arrangements between the United Kingdom and the United States of America are governed by the Extradition Treaty signed by the two Governments on 8 June 1972, a Supplementary Treaty signed on 25 June 1982, and an Exchange of Notes dated 19 and 20 August 1986 amending the Supplementary Treaty. These arrangements have been incorporated into the law of the United Kingdom by Orders in Council (the United States of America (Extradition) Order 1976, S.I. 1976/2144 and the United States of America (Extradition) (Amendment) Order 1986, S.I. 1986/2020). By virtue of Article I of the Extradition Treaty, "each Contracting Party undertakes to extradite to the other, in the circumstances and subject to the conditions specified in this Treaty, any person found in its territory who has been accused or convicted of any offence [specified in the Treaty and including murder], committed within the jurisdiction of the other Party". 31. Extradition between the United Kingdom and the Federal Republic of Germany is governed by the Treaty of 14 May 1872 between the United Kingdom and Germany for the Mutual Surrender of Fugitive Criminals, as reapplied with amendments by an Agreement signed at Bonn on 23 February 1960 and as further amended by an Exchange of Notes dated 25 and 27 September 1978. These agreements have been incorporated into the law of the United Kingdom by Orders in Council (the Federal Republic of Germany (Extradition) Order 1960, S.I. 1960/1375 and the Federal Republic of Germany (Extradition) (Amendment) Order 1978, S.I. 1978/1403). 32. After receipt of an extradition request, the Secretary of State may, by order, require a magistrate to issue a warrant for the arrest of the fugitive criminal (Extradition Act 1870, sections 7 and 8). Extradition proceedings in the United Kingdom consist in an extradition hearing before a magistrate. Section 10 of the Extradition Act 1870 provides that if "such evidence is produced as (subject to the provisions of this Act) would, according to the law of England, justify the committal for trial of the prisoner if the crime of which he is accused had been committed in England ... the ... magistrate shall commit him to prison but otherwise he shall order him to be discharged". A magistrate must be satisfied that there is sufficient evidence to put the accused on trial; before committing him a prima facie case must be made out against him. "The test is whether, if the evidence before the magistrate stood alone at the trial, a reasonable jury properly directed could accept it and find a verdict of guilty" ( Schtraks v. Government of Israel [1964] Appeal Cases 556). 33. Section 11 of the Extradition Act 1870 provides that decisions taken in committal proceedings may be challenged by way of application for habeas corpus. In practice, such application is made to a Divisional Court and, with leave, to the House of Lords. Habeas corpus proceedings are primarily concerned with checking that the magistrate had jurisdiction to hear the case; that there was evidence before him which could justify the committal; that the offence is an extradition crime which is not of a political character; and that there is no bar on other grounds to surrender. Section 12 of the 1870 Act provides for the release of a prisoner, if not surrendered, at the conclusion of such proceedings or within two months of committal unless sufficient cause is shown to the contrary. 34. Furthermore, under section 11 of the 1870 Act the Secretary of State enjoys a discretion not to sign the surrender warrant (Atkinson v. United States [1971] Appeal Cases 197). This discretion may override a decision of the courts that a fugitive should be surrendered, and it is open to every prisoner who has exhausted his remedies by way of application for habeas corpus to petition the Secretary of State for that purpose. In considering whether to order the fugitive ’ s surrender, the Secretary of State is bound to take account of fresh evidence which was not before the magistrate ( Schtraks v. Government of Israel, loc. cit.). 35. In addition, it is open to the prisoner to challenge both the decision of the Secretary of State rejecting his petition and the decision to sign the warrant in judicial review proceedings. In such proceedings the court may review the exercise of the Secretary of State ’ s discretion on the basis that it is tainted with illegality, irrationality or procedural impropriety (Council of Civil Service Unions and Others v. Minister for the Civil Service [1984] 3 All England Law Reports 935). Irrationality is determined on the basis of the administrative-law principles set out in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 King ’ s Bench Reports 223 (the so-called "Wednesbury principles" of reasonableness). The test in an extradition case would be that no reasonable Secretary of State could have made an order for return in the circumstances. As the judgment of Lord Justice Lloyd in the Divisional Court in the present case shows (see paragraph 22 above), the reliance placed by the Secretary of State on any assurance given by the requesting State may be tested to determine whether such reliance is within the confines of "reasonableness". According to the United Kingdom Government, on the same principle a court would have jurisdiction to quash a challenged decision to send a fugitive to a country where it was established that there was a serious risk of inhuman or degrading treatment, on the ground that in all the circumstances of the case the decision was one which no reasonable Secretary of State could take. In R v. Home Secretary, ex parte Bugdaycay [1987] 1 All England Law Reports 940 at 952, a House of Lords case concerning a refusal to grant asylum, Lord Bridge, while acknowledging the limitations of the Wednesbury principles, explained that the courts will apply them extremely strictly against the Secretary of State in a case in which the life of the applicant is at risk: "Within those limitations the court must, I think, be entitled to subject an administrative decision to the most rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual ’ s right to life and, when an administrative decision under challenge is said to be one which may put the applicant ’ s life at risk, the basis of the decision must surely call for the most anxious scrutiny." Lord Templeman added (at page 956): "In my opinion where the result of a flawed decision may imperil life or liberty a special responsibility lies on the court in the examination of the decision-making process." However, the courts will not review any decision of the Secretary of State by reason of the fact only that he failed to consider whether or not there was a breach of the European Convention on Human Rights (R v. Secretary of State, ex parte Kirkwood [1984] 1 Weekly Law Reports 913). In addition, the courts have no jurisdiction to issue interim injunctions against the Crown in judicial review proceedings (Kirkwood, ibid., and R v. Secretary of State for Transport, ex parte Factortame Ltd and Others, The Times, 19 May 1989). 36. There is no provision in the Extradition Acts relating to the death penalty, but Article IV of the United Kingdom-United States Treaty provides: "If the offence for which extradition is requested is punishable by death under the relevant law of the requesting Party, but the relevant law of the requested Party does not provide for the death penalty in a similar case, extradition may be refused unless the requesting Party gives assurances satisfactory to the requested Party that the death penalty will not be carried out." 37. In the case of a fugitive requested by the United States who faces a charge carrying the death penalty, it is the Secretary of State ’ s practice, pursuant to Article IV of the United Kingdom-United States Extradition Treaty, to accept an assurance from the prosecuting authorities of the relevant State that a representation will be made to the judge at the time of sentencing that it is the wish of the United Kingdom that the death penalty should be neither imposed no carried out. This practice has been described by Mr David Mellor, then Minister of State at the Home Office, in the following terms: "The written undertakings about the death penalty that the Secretary of State obtains from the Federal authorities amount to an undertaking that the views of the United Kingdom will be represented to the judge. At the time of sentencing he will be informed that the United Kingdom does not wish the death penalty to be imposed or carried out. That means that the United Kingdom authorities render up a fugitive or are prepared to send a citizen to face an American court on the clear understanding that the death penalty will not be carried out - it has never been carried out in such cases. It would be a fundamental blow to the extradition arrangements between our two countries if the death penalty were carried out on an individual who had been returned under those circumstances." ( Hansard, 10 March 1987, col. 955) There has, however, never been a case in which the effectiveness of such an undertaking has been tested. 38. Concurrent requests for extradition in respect of the same crime from two different States are not a common occurrence. If both requests are received at the same time, the Secretary of State decides which request is to be proceeded with, having regard to all the facts of the case, including the nationality of the fugitive and the place of commission of the offence. In this respect Article X of the Extradition Treaty between the United Kingdom and the United States provides as follows: "If the extradition of a person is requested concurrently by one of the Contracting Parties and by another State or States, either for the same offence or for different offences, the requested Party shall make its decision, in so far as its law allows, having regard to all the circumstances, including the provisions in this regard in any Agreements in force between the requested Party and the requesting States, the relative seriousness and place of commission of the offences, the respective dates of the requests, the nationality of the person sought and the possibility of subsequent extradition to another State." III. RELEVANT DOMESTIC LAW IN THE COMMONWEALTH OF VIRGINIA A. The law relating to murder 39. The relevant definition and classification of murder and sentencing for murder are governed by the Code of Virginia of 1950, as amended, and the decided cases in the State and Federal courts. 40. Section 18.2-31 of the Virginia Code provides that eight types of homicide constitute capital murder, punishable as a Class 1 felony, including "the wilful, deliberate and premeditated killing of more than one person as a part of the same act or transaction" (sub-section (g)). The punishment for a Class 1 felony is "death or imprisonment for life" (Virginia Code, section 18.2-10(a)). Except in the case of murder for hire, only the "triggerman", that is the actual perpetrator of the killing, may be charged with capital murder (Johnston v. Commonwealth, 220 Virginia Reports ( Va .) 146, 255 South Eastern Reporter, Second Series (S.E.2d) 525 (1979)). Murder other than capital murder is classified as murder in the first degree or murder in the second degree and is punishable by varying terms of imprisonment (Virginia Code, sections 18.2-10(b), (c) and 18.2-32). 41. In most felony trials, including trials for capital murder, the defendant is guaranteed trial by jury. The defendant may waive this right but does not often do so. B. Sentencing procedure 42. The sentencing procedure in a capital murder case in Virginia is a separate proceeding from the determination of guilt. Following a determination of guilt of capital murder, the same jury, or judge sitting without a jury, will forthwith proceed to hear evidence regarding punishment. All relevant evidence concerning the offence and the defendant is admissible. Evidence in mitigation is subject to almost no limitation, while evidence of aggravation is restricted by statute (Virginia Code, section 19.2-264.4). 43. Unless the prosecution proves beyond a reasonable doubt the existence of at least one of two statutory aggravating circumstances - future dangerousness or vileness - the sentencer may not return a death sentence. "Future dangerousness" exists where there is a probability that the defendant would commit "criminal acts of violence" in the future such as would constitute a "continuing serious threat to society" (Virginia Code, section 19.2-264.2). "Vileness" exists when the crime was "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim" ( Virginia Code, ibid.). The words "depravity of mind" mean "a degree of moral turpitude and psychical debasement surpassing that inherent in the definition of ordinary legal malice and premeditation". The words "aggravated battery" mean a battery which, "qualitatively and quantitatively, is more culpable than the minimum necessary to accomplish an act of murder" (Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135 (1978), certiorari denied, 441 United States Supreme Court Reports (U.S.) 967 (1979)). Proof of multiple wounds sustained by the victim, particularly a neck wound, which even considered alone, constituted an aggravated battery in the light of the savage, methodical manner in which it was inflicted, leaving the victim to suffer an interval of agony awaiting death, has been held to satisfy the test of "vileness" under this section (Edmonds v. Commonwealth, 229 Va. 303, 329 S.E.2d 807, certiorari denied, 106 Supreme Court Reporter ( S.Ct .) 339, 88 United States Supreme Court Reports, Lawyers ’ Edition, Second Series (L.Ed.2d) 324 (1985)). 44. The imposition of the death penalty on a young person who has reached the age of majority - which is 18 years (Virginia Code, section 1.13.42) - is not precluded under Virginia law. Age is a fact to be weighed by the jury (Peterson v. Commonwealth, 225 Va. 289, 302 S.E.2d 520, certiorari denied, 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983)). 45. Facts in mitigation are specified by statute as including but not being limited to the following: "( i ) the defendant has no significant history of prior criminal activity, or (ii) the capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance, or (iii) the victim was a participant in the defendant ’ s conduct or consented to the act, or (iv) at the time of the commission of the capital felony, the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was significantly impaired, or (v) the age of the defendant at the time of the commission of the capital offence" (Virginia Code, section 19.2-264.4B). 46. In a case of trial by jury, the jury in a capital murder case has the duty to consider all evidence relevant to sentencing, both favourable and unfavourable, before fixing punishment. In particular, a jury may sentence a defendant to death only after having considered the evidence in mitigation of the offence (Watkins v. Commonwealth, 229 Va. 469, 331 S.E.2d 422 (1985), certiorari denied, 475 U.S. 1099, 106 S.Ct. 1503, 89 L.Ed.2d 903 (1986)). Furthermore, unless the jury is unanimous the sentence cannot be death but must be life imprisonment (Virginia Code, section 19.2-264.4). Even if one or more of the statutory aggravating circumstances are shown, the sentencer still remains at liberty to fix a life sentence instead of death in the light of the mitigating circumstances and even for no reason other than mercy (Smith v. Commonwealth, loc. cit.). 47. Following a sentence of death, the trial judge must order the preparation of an investigative report detailing the defendant ’ s history and "any and all other relevant facts, to the end that the court may be fully advised as to whether the penalty of death is appropriate and just"; after consideration of the report, and upon good cause shown, the judge may set aside the sentence of death and impose a life sentence (Virginia Code, section 19.2-264.5). 48. Following a moratorium consequent upon a decision of the United States Supreme Court (Furman v. Georgia, 92 S.Ct. 2726 (1972)), imposition of the death penalty was resumed in Virginia in 1977, since which date seven persons have been executed. The means of execution used is electrocution. The Virginia death penalty statutory scheme, including the provision on mandatory review of sentence (see paragraph 52 below), has been judicially determined to be constitutional. It was considered to prevent the arbitrary or capricious imposition of the death penalty and narrowly to channel the sentencer ’ s discretion (Smith v. Commonwealth, loc. cit.; Turnver v. Bass, 753 Federal Reporter, Second Series (F.2d) 342 (4th Circuit, 1985); Briley v. Bass, 750 F.2d 1238 (4th Circuit, 1984)). The death penalty under the Virginia capital murder statute has also been held not to constitute cruel and unusual punishment or to deny a defendant due process or equal protection (Stamper v. Commonwealth, 220 Va. 260, 257 S.E.2d 808 (1979), certiorari denied, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980)). The Supreme Court of Virginia rejected the submission that death by electrocution would cause "the needless imposition of pain before death and emotional suffering while awaiting execution of sentence" (ibid.). C. Insanity, mental disorders and diminished responsibility 49. The law of Virginia generally does not recognise a defence of diminished capacity (Stamper v. Commonwealth, 228 Va. 707, 324 S.E.2d 682 (1985)). 50. A plea of insanity at the time of the offence is recognised as a defence in Virginia and, if successful, is a bar to conviction. Such a plea will apply where the defendant knows that the act is wrong but is driven by an irresistible impulse, induced by some mental disease affecting the volitive powers, to commit it (Thompson v. Commonwealth, 193 Va. 704, 70 S.E.2d 284 (1952) and Godley v. Commonwealth, 2 Virginia Court of Appeals Reports ( Va. App.) 249 (1986)) or where he does not understand the nature, character and consequences of his act or is unable to distinguish right from wrong (Price v. Commonwealth, 228 Va. 452, 323 S.E.2d 106 (1984)). Where no insanity defence is interposed, the defendant ’ s mental condition is only relevant at the guilt stage in so far as it might be probative of a fact in issue, for example premeditation at the time of the killing (Le Vasseur v. Commonwealth, 225 Va. 564, 304 S.E.2d 644 (1983), certiorari denied, 464 U.S. 1063, 104 S.Ct 744, 79 L.Ed.2d 202 (1984)). 51. In a capital murder trial, the defendant ’ s mental condition at the time of the offence, including any level of mental illness, may be pleaded as a mitigating factor at the sentencing stage. Evidence on this may include, but is not limited to, showing that the defendant was under the influence of extreme mental or emotional disturbance or that at the time of the offence his capacity to appreciate the criminality of his conduct was significantly impaired (Virginia Code, section 19.2-264.4B - see paragraph 45 above). Additionally, indigent capital murder defendants are entitled by statute to the appointment of a qualified mental health expert to assist in the preparation and presentation of information concerning their history, character and mental condition with a view to establishing factors in mitigation (Virginia Code, section 19.2-264.3:1). Upon presentation of evidence of the defendant ’ s mental state, the sentencer may elect to impose life imprisonment rather than the death penalty. D. Appeals in capital cases 52. The Supreme Court of Virginia reviews automatically every case in which a capital sentence has been passed, regardless of the plea entered by the defendant at his trial. In addition to consideration of "any errors in the trial" alleged by the defendant on appeal, the Supreme Court reviews the death sentence to determine whether it was imposed "under the influence of passion, prejudice or any other arbitrary factor" and whether it is excessive or disproportionate "to the penalty imposed in similar cases" (Virginia Code, section 17-110.1). This automatic direct appeal is governed by the Rules of the Supreme Court of Virginia and encompasses various time-limits for the filing of briefs. In addition, precedence is given to the review of sentences of death before any other case (Rule 5.23; see also Virginia Code, section 17-110.2). Normally the time taken by this appeal does not exceed six months. After this appeal process is completed, the sentence of death will be executed unless a stay of execution is entered. As a practical matter, a stay will be entered when the prisoner initiates further proceedings. There has apparently been only one case since 1977 where the Virginia Supreme Court has itself reduced a death sentence to life imprisonment. 53. The prisoner may apply to the United States Supreme Court for certiorari review of the decision of the Supreme Court of Virginia. If unsuccessful, he may begin collateral attacks upon the conviction and sentence in habeas corpus proceedings in both State and Federal courts. The prisoner may file a habeas corpus petition either in the Supreme Court of Virginia or in the trial court, with appeal to the Supreme Court of Virginia. Thereafter he may once more apply to the United States Supreme Court for certiorari review of the State ’ s habeas corpus decision. He may then file a petition for a writ of habeas corpus in the Federal District Court. The decision of the District Court may be appealed to the Federal Circuit Court of Appeals, followed, if no relief is obtained, by a petition for certiorari review in the United States Supreme Court. At each stage of his collateral attacks, the prisoner may seek a stay of execution pending final determination of his applications. 54. The Virginia and Federal statutes and rules of court set time-limits for the presentation of appeals following conviction or appeals against the decisions in habeas corpus proceedings. There are, however, no time-limits for filing the initial State and Federal habeas corpus petitions. 55. The grounds which may be presented and argued on appeal and in habeas corpus proceedings are restricted by the "contemporaneous objections rule" to those which have been raised in the course of the trial (see Rule 5.25 of the Rules of the Supreme Court of Virginia). The rule is based on the principle that the trial itself is the "main event", so that the real issues between the parties should be canvassed and determined at the trial and not on appeal or in any subsequent review proceedings. It was adopted to prevent the setting of traps for trial courts (Keeney v. Commonwealth, 147 Va. 678, 137 South Eastern Reporter (S.E.) 478 (1927)), and so that the trial judge will be given the opportunity to rule upon the issues intelligently and unnecessary appeals, reversals and mistrials will be avoided (Woodson v. Commonwealth, 211 Va. 285, 176 S.E.2d 818 (1970), certiorari denied, 401 U.S. 959 (1971)). The rule applies equally in capital cases and is recognised by the Federal courts (see Briley v. Bass, 584 Federal Supplement (F. Supp.) 807 ( Eastern District Virginia ), aff ’ d, 742 F.2d 155 (4th Circuit 1984)). By way of exception to the rule, errors to which no objections were made at the trial may be objected to on appeal where this is necessary to attain the ends of justice or where good cause is shown. This exception has been applied by the Supreme Court of Virginia to overturn a capital murder conviction (Ball v. Commonwealth, 221 Va. 754, 273 S.E.2d 790 (1981)). In death penalty cases, the proportionality of the sentence and the issue of whether the sentence was imposed under the influence of passion, prejudice or other arbitrary factor (see paragraph 52 above) is reviewed without regard to whether objection was made at trial (see Briley v. Bass, loc. cit.). 56. The average time between trial and execution in Virginia, calculated on the basis of the seven executions which have taken place since 1977, is six to eight years. The delays are primarily due to a strategy by convicted prisoners to prolong the appeal proceedings as much as possible. The United States Supreme Court has not as yet considered or ruled on the "death row phenomenon" and in particular whether it falls foul of the prohibition of "cruel and unusual punishment" under the Eighth Amendment to the Constitution of the United States. E. Legal assistance for appeals 57. All prisoners who have been sentenced to death have individual lawyers to represent them, whether privately recruited or court-appointed. On the other hand, there is no statutory provision expressly mandating legal assistance to be made available to the indigent prisoner to file habeas corpus petitions. However, it has recently been affirmed by a United States Court of Appeal that the Commonwealth of Virginia is required to provide indigent prisoners who have been sentenced to death with the assistance of lawyers to pursue challenges to their death sentences in State habeas corpus actions ( Giarratano v. Murray, 847 F.2d 1118 (4th Circuit 1988) (en banc) - case currently pending before the United States Supreme Court). In Federal habeas corpus and certiorari proceedings case-law does not impose the same obligation (ibid., p. 1122, column 1), for the reason that the Federal courts would have available the appellate briefs, a transcript and State court opinion (in certiorari proceedings) and the briefs of counsel, a transcript and opinion (in habeas corpus proceedings). Virginia inmates also have access to legal information and assistance in the form of law libraries and institutional attorneys. The institutional attorneys are available to assist inmates in "any legal matter relating to their incarceration" (Virginia Code, section 53.1-40), including the drafting of habeas corpus petitions and motions for appointment of counsel for the inmates to file. A prisoner is not obliged to proceed with counsel, and he may litigate in both State and Federal courts pro se. However, no Virginia prisoner under sentence of death in contemporary times has ever been unrepresented during his trial, appeal or habeas corpus proceedings. Nor has any such prisoner faced execution without counsel. F. Authorities involved in the death penalty procedure 58. A Commonwealth ’ s Attorney for each county in Virginia is elected every four years (Article VII(4) of the Constitution of Virginia). His primary duty is the prosecution of all criminal cases within his locality (see Virginia Code, section 15.1-18.1). He has discretion as to what degree of murder to present for indictment, but that discretion is limited by considerations of prosecutorial ethics and his legal duty under the general law and to the public to present the indictment for the crime which is best supported by the evidence. He is independent in the discharge of his duty, not being subject to direction in any relevant way, whether as to charging offences, seeking sentences or giving related assurances, by the Attorney General of Virginia (see Virginia Code, section 2.1-124), the Governor of Virginia or anyone else. It is open to the Commonwealth ’ s Attorney to engage in plea negotiations, but the court is not bound to accept any resultant agreement (Rule 3A.8 of the Rules of the Supreme Court of Virginia). 59. Judges of the district and higher courts of the State of Virginia are not elected but are appointed to the bench. Their conduct is governed by published Canons of Judicial Conduct, which have been adopted by the Supreme Court of Virginia as Rules of the Supreme Court. Observance of high standards of conduct so as to preserve the integrity and independence of the judiciary is included as part of the first Canon. 60. The Governor of the Commonwealth of Virginia has an unrestricted power "to commute capital punishment" (Article V, section 12, of the Constitution of Virginia). As a matter of policy, the Governor does not promise, before a conviction and sentence, that he will later exercise his commutation power. Since 1977 there has been no case in which the Governor has commuted a death sentence. G. Prison conditions in Mecklenburg Correctional Center 61. There are currently 40 people under sentence of death in Virginia. The majority are detained in Mecklenburg Correctional Center, which is a modern maximum-security institution with a total capacity of 335 inmates. Institutional Operating Procedures (IOP 821.1) establish uniform operating procedures for the administration, security, control and delivery of necessary services to death row inmates in Mecklenburg. In addition conditions of confinement are governed by a comprehensive consent decree handed down by the United States District Court in Richmond in the case of Alan Brown et al. v. Allyn R. Sielaff et al. (5 April 1985). Both the Virginia Department of Corrections and the American Civil Liberties Union monitor compliance with the terms of the consent decree. The United States District Court also retains jurisdiction to enforce compliance with the decree. 62. The channels by which grievances may be ventilated and, if well-founded, remedied include (1) the use of a Federal Court approved Inmate Grievance Procedure of the Virginia Department of Corrections, involving the Warden, the Regional Administrator and the Director of Prisons, and the Regional Ombudsman, (2) formal or informal contact between inmates ’ counsel and the prison staff, (3) complaint to the courts for breach of the consent decree, and (4) the institution of legal proceedings under Federal or State tort laws. 63. The size of a death row inmate ’ s cell is 3m by 2.2m. Prisoners have an opportunity for approximately 7½ hours ’ recreation per week in summer and approximately 6 hours ’ per week, weather permitting, in winter. The death row area has two recreation yards, both of which are equipped with basketball courts and one of which is equipped with weights and weight benches. Inmates are also permitted to leave their cells on other occasions, such as to receive visits, to visit the law library or to attend the prison infirmary. In addition, death row inmates are given one hour out-of-cell time in the morning in a common area. Each death row inmate is eligible for work assignments, such as cleaning duties. When prisoners move around the prison they are handcuffed, with special shackles around the waist. When not in their cells, death row inmates are housed in a common area called "the pod". The guards are not within this area and remain in a box outside. In the event of disturbance or inter-inmate assault, the guards are not allowed to intervene until instructed to do so by the ranking officer present. 64. The applicant adduced much evidence of extreme stress, psychological deterioration and risk of homosexual abuse and physical attack undergone by prisoners on death row, including Mecklenburg Correctional Center. This evidence was strongly contested by the United Kingdom Government on the basis of affidavits sworn by administrators from the Virginia Department of Corrections. 65. Death row inmates receive the same medical service as inmates in the general population. An infirmary equipped with adequate supplies, equipment and staff provides for 24-hour in-patient care, and emergency facilities are provided in each building. Mecklenburg also provides psychological and psychiatric services to death row inmates. The United States District Court (Eastern District of Virginia) has recently upheld the adequacy of mental health treatment available to death row inmates in Mecklenburg (Stamper et al. v. Blair et al., decision of 14 July 1988). 66. Inmates are allowed non-contact visits in a visiting room on Saturdays, Sundays and holidays between 8.30am and 3.30pm. Attorneys have access to their clients during normal working hours on request as well as during the scheduled visiting hours. Death row inmates who have a record of good behaviour are eligible for contact visits with members of their immediate family two days per week. Outgoing correspondence from inmates is picked up daily and all incoming correspondence is delivered each evening. 67. As a security precaution, pursuant to rules applicable to all institutions in Virginia, routine searches are conducted of the entire institution on a quarterly basis. These searches may last for approximately a week. During such times, called lockdowns, inmates are confined to their cells; they are showered, receive medical, dental and psychological services outside their cells as deemed necessary by medical staff, and upon request may visit the law library, and are allowed legal visits and legal telephone calls. Other services such as meals are provided to the inmates in their cells. During the lockdown, privileges and out-of-cell time are gradually increased to return to normal operations. Lockdowns may also be ordered from time to time in relation to death row if information is received indicating that certain of its inmates may be planning a disturbance, hostage situation or escape. 68. A death row prisoner is moved to the death house 15 days before he is due to be executed. The death house is next to the death chamber where the electric chair is situated. Whilst a prisoner is in the death house he is watched 24 hours a day. He is isolated and has no light in his cell. The lights outside are permanently lit. A prisoner who utilises the appeals process can be placed in the death house several times. H. The giving and effect of assurances in relation to the death penalty 69. Relations between the United Kingdom and the United States of America on matters concerning extradition are conducted by and with the Federal and not the State authorities. However, in respect of offences against State laws the Federal authorities have no legally binding power to provide, in an appropriate extradition case, an assurance that the death penalty will not be imposed or carried out. In such cases the power rests with the State. If a State does decide to give a promise in relation to the death penalty, the United States Government has the power to give an assurance to the extraditing Government that the State ’ s promise will be honoured. According to evidence from the Virginia authorities, Virginia ’ s capital sentencing procedure and notably the provision on post-sentencing reports (see paragraph 47 above) would allow the sentencing judge to consider the representation to be made on behalf of the United Kingdom Government pursuant to the assurance given by the Attorney for Bedford County (see paragraph 20 above). In addition, it would be open to the Governor to take into account the wishes of the United Kingdom Government in any application for clemency (see paragraph 60 above). IV. RELEVANT LAW AND PRACTICE OF THE FEDERAL REPUBLIC OF GERMANY 71. German criminal law applies to acts committed abroad by a German national if the act is liable to punishment at the place where the offence is committed (Criminal Code, section 7(2)). 72. Murder is defined as follows in section 211(2) of the Criminal Code: "He is deemed a murderer who because of murderous lust, to satisfy his sexual instinct, for reasons of covetousness or for otherwise base motives, insidiously or cruelly or by means constituting a public danger or in order to render another crime possible or to conceal another crime kills a person." Murder is punishable with life imprisonment (Criminal Code, section 211(1)), the death penalty having been abolished under the Constitution (Article 102 of the Basic Law, 1949). 73. Under the terms of the Juvenile Court Act (1953) as amended, if a young adult - defined as a person who is 18 but not yet 21 years of age at the time of the criminal act (section 1(3)) - commits an offence, the judge will apply the provisions applicable to a juvenile - defined as a person who is at least 14 but not yet 18 years of age (ibid.) - if, inter alia, "the overall assessment of the offender ’ s personality, having regard also to the circumstances of his environment, reveals that, according to his moral and mental development, he was still equal to a juvenile at the time of committing the offence" (section 105(1)). The sentence for young adults who come within this section is youth imprisonment of 6 months to 10 years or, under certain conditions, of indeterminate duration (sections 18, 19 and 105(3)). Where, on the other hand, the young adult offender ’ s personal development corresponds to his age, the general criminal law applies but the judge may pass a sentence of 10 to 15 years ’ imprisonment instead of a life sentence (section 106(1)). 74. Where an offender, at the time of commission of the offence, was incapable of appreciating the wrongfulness of the offence or of acting in accordance with such appreciation by reason of a morbid mental or emotional disturbance, by reason of a profound disturbance of consciousness or by reason of mental deficiency or some other serious mental or emotional abnormality, there can be no culpability on his part and he may not be punished (Criminal Code, section 20). In such a case, however, it is possible for an order to be made placing the offender in a psychiatric hospital indefinitely (Criminal Code, section 63). In a case of diminished responsibility, namely where there is substantial impairment of the offender ’ s ability to appreciate the wrongfulness of the offence or to act in accordance with such appreciation at the time of commission of the offence for one of the reasons set out in section 20 (Criminal Code, section 21), punishment may be reduced and, in particular, in homicide cases imprisonment of not less than 3 years shall be substituted for life imprisonment (Criminal Code, section 49(1)(2)). Alternatively, the court may order placement in a psychiatric hospital. 75. Where a death sentence is risked, the Federal Government will grant extradition only if there is an unequivocal assurance by the requesting State that the death penalty will not be imposed or that it will not be carried out. The German-United States Extradition Treaty of 20 June 1978, in force since 29 August 1980, contains a provision (Article 12) corresponding, in its essentials, to Article IV of the United Kingdom/United States Extradition Treaty (see paragraph 36 above). The Government of the Federal Republic of Germany stated in evidence that they would not have deemed an assurance of the kind given by the United States Government in the present case to be adequate and would have refused extradition. In accordance with recent judicial decisions, the question whether an adequate assurance has been given is subject to examination in proceedings before the higher regional court. PROCEEDINGS BEFORE THE COMMISSION 76. Mr Soering ’ s application (no. 14038/88) was lodged with the Commission on 8 July 1988. In his application Mr Soering stated his belief that, notwithstanding the assurance given to the United Kingdom Government, there was a serious likelihood that he would be sentenced to death if extradited to the United States of America. He maintained that in the circumstances and, in particular, having regard to the "death row phenomenon" he would thereby be subjected to inhuman and degrading treatment and punishment contrary to Article 3 (art. 3) of the Convention. In his further submission his extradition to the United States would constitute a violation of Article 6 § 3 (c) (art. 6-3-c) because of the absence of legal aid in the State of Virginia to pursue various appeals. Finally, he claimed that, in breach of Article 13 (art. 13), he had no effective remedy under United Kingdom law in respect of his complaint under Article 3 (art. 3). 77. On 11 August 1988 the President of the Commission indicated to the United Kingdom Government, in accordance with Rule 36 of the Commission ’ s Rules of Procedure, that it was desirable, in the interests of the parties and the proper conduct of the proceedings, not to extradite the applicant to the United States until the Commission had had an opportunity to examine the application. This indication was subsequently prolonged by the Commission on several occasions until the reference of the case to the Court. 78. The Commission declared the application admissible on 10 November 1988. In its report adopted on 19 January 1989 (Article 31) (art. 31) the Commission expressed the opinion that there had been a breach of Article 13 (art. 13) (seven votes to four) but no breach of either Article 3 (art. 3) (six votes to five) or Article 6 § 3 (c) (art. 6-3-c) (unanimously). The full text of the Commission ’ s opinion and of the separate opinions contained in the report is reproduced as an annex to this judgment [*]. FINAL SUBMISSIONS TO THE COURT BY THE UNITED KINGDOM GOVERNMENT 79. At the public hearing on 24 April 1989 the United Kingdom Government maintained the concluding submissions set out in their memorial, whereby they requested the Court to hold "1. that neither the extradition of the applicant nor any act or decision of the United Kingdom Government in relation thereto constitutes a breach of Article 3 (art. 3) of the Convention; 2. that neither the extradition of the applicant nor any act or decision of the United Kingdom Government in relation thereto constitutes a breach of Article 6 § 3 (c) (art. 6-3-c) of the Convention; 3. that there has been no violation of Article 13 (art. 13) of the Convention; 4. that no issues arise under Article 50 (art. 50) of the Convention which call for consideration by the Court". They also submitted that further complaints under Article 6 (art. 6) made by the applicant before the Court were not within the scope of the case as declared admissible by the Commission. AS TO THE LAW I. ALLEGED BREACH OF ARTICLE 3 (art. 3) 80. The applicant alleged that the decision by the Secretary of State for the Home Department to surrender him to the authorities of the United States of America would, if implemented, give rise to a breach by the United Kingdom of Article 3 (art. 3) of the Convention, which provides: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." A. Applicability of Article 3 (art. 3) in cases of extradition 81. The alleged breach derives from the applicant ’ s exposure to the so-called "death row phenomenon". This phenomenon may be described as consisting in a combination of circumstances to which the applicant would be exposed if, after having been extradited to Virginia to face a capital murder charge, he were sentenced to death. 82. In its report (at paragraph 94) the Commission reaffirmed "its case-law that a person ’ s deportation or extradition may give rise to an issue under Article 3 (art. 3) of the Convention where there are serious reasons to believe that the individual will be subjected, in the receiving State, to treatment contrary to that Article (art. 3)". The Government of the Federal Republic of Germany supported the approach of the Commission, pointing to a similar approach in the case-law of the German courts. The applicant likewise submitted that Article 3 (art. 3) not only prohibits the Contracting States from causing inhuman or degrading treatment or punishment to occur within their jurisdiction but also embodies an associated obligation not to put a person in a position where he will or may suffer such treatment or punishment at the hands of other States. For the applicant, at least as far as Article 3 (art. 3) is concerned, an individual may not be surrendered out of the protective zone of the Convention without the certainty that the safeguards which he would enjoy are as effective as the Convention standard. 83. The United Kingdom Government, on the other hand, contended that Article 3 (art. 3) should not be interpreted so as to impose responsibility on a Contracting State for acts which occur outside its jurisdiction. In particular, in their submission, extradition does not involve the responsibility of the extraditing State for inhuman or degrading treatment or punishment which the extradited person may suffer outside the State ’ s jurisdiction. To begin with, they maintained, it would be straining the language of Article 3 (art. 3) intolerably to hold that by surrendering a fugitive criminal the extraditing State has "subjected" him to any treatment or punishment that he will receive following conviction and sentence in the receiving State. Further arguments advanced against the approach of the Commission were that it interferes with international treaty rights; it leads to a conflict with the norms of international judicial process, in that it in effect involves adjudication on the internal affairs of foreign States not Parties to the Convention or to the proceedings before the Convention institutions; it entails grave difficulties of evaluation and proof in requiring the examination of alien systems of law and of conditions in foreign States; the practice of national courts and the international community cannot reasonably be invoked to support it; it causes a serious risk of harm in the Contracting State which is obliged to harbour the protected person, and leaves criminals untried, at large and unpunished. In the alternative, the United Kingdom Government submitted that the application of Article 3 (art. 3) in extradition cases should be limited to those occasions in which the treatment or punishment abroad is certain, imminent and serious. In their view, the fact that by definition the matters complained of are only anticipated, together with the common and legitimate interest of all States in bringing fugitive criminals to justice, requires a very high degree of risk, proved beyond reasonable doubt, that ill-treatment will actually occur. 84. The Court will approach the matter on the basis of the following considerations. 85. As results from Article 5 § 1 (f) (art. 5-1-f), which permits "the lawful ... detention of a person against whom action is being taken with a view to ... extradition", no right not to be extradited is as such protected by the Convention. Nevertheless, in so far as a measure of extradition has consequences adversely affecting the enjoyment of a Convention right, it may, assuming that the consequences are not too remote, attract the obligations of a Contracting State under the relevant Convention guarantee (see, mutatis mutandis, the Abdulaziz, Cabales and Balkandali judgment of 25 May 1985, Series A no. 94, pp. 31-32, §§ 59-60 - in relation to rights in the field of immigration). What is at issue in the present case is whether Article 3 (art. 3) can be applicable when the adverse consequences of extradition are, or may be, suffered outside the jurisdiction of the extraditing State as a result of treatment or punishment administered in the receiving State. 86. Article 1 (art. 1) of the Convention, which provides that "the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I", sets a limit, notably territorial, on the reach of the Convention. In particular, the engagement undertaken by a Contracting State is confined to "securing" (" reconnaître" in the French text) the listed rights and freedoms to persons within its own "jurisdiction". Further, the Convention does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States. Article 1 (art. 1) cannot be read as justifying a general principle to the effect that, notwithstanding its extradition obligations, a Contracting State may not surrender an individual unless satisfied that the conditions awaiting him in the country of destination are in full accord with each of the safeguards of the Convention. Indeed, as the United Kingdom Government stressed, the beneficial purpose of extradition in preventing fugitive offenders from evading justice cannot be ignored in determining the scope of application of the Convention and of Article 3 (art. 3) in particular. In the instant case it is common ground that the United Kingdom has no power over the practices and arrangements of the Virginia authorities which are the subject of the applicant ’ s complaints. It is also true that in other international instruments cited by the United Kingdom Government - for example the 1951 United Nations Convention relating to the Status of Refugees (Article 33), the 1957 European Convention on Extradition (Article 11) and the 1984 United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (Article 3) - the problems of removing a person to another jurisdiction where unwanted consequences may follow are addressed expressly and specifically. These considerations cannot, however, absolve the Contracting Parties from responsibility under Article 3 (art. 3) for all and any foreseeable consequences of extradition suffered outside their jurisdiction. 87. In interpreting the Convention regard must be had to its special character as a treaty for the collective enforcement of human rights and fundamental freedoms (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 90, § 239). Thus, the object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective (see, inter alia, the Artico judgment of 13 May 1980, Series A no. 37, p. 16, § 33). In addition, any interpretation of the rights and freedoms guaranteed has to be consistent with "the general spirit of the Convention, an instrument designed to maintain and promote the ideals and values of a democratic society" (see the Kjeldsen, Busk Madsen and Pedersen judgment of 7 December 1976, Series A no. 23, p. 27, § 53). 88. Article 3 (art. 3) makes no provision for exceptions and no derogation from it is permissible under Article 15 (art. 15) in time of war or other national emergency. This absolute prohibition of torture and of inhuman or degrading treatment or punishment under the terms of the Convention shows that Article 3 (art. 3) enshrines one of the fundamental values of the democratic societies making up the Council of Europe. It is also to be found in similar terms in other international instruments such as the 1966 International Covenant on Civil and Political Rights and the 1969 American Convention on Human Rights and is generally recognised as an internationally accepted standard. The question remains whether the extradition of a fugitive to another State where he would be subjected or be likely to be subjected to torture or to inhuman or degrading treatment or punishment would itself engage the responsibility of a Contracting State under Article 3 (art. 3). That the abhorrence of torture has such implications is recognised in Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which provides that "no State Party shall ... extradite a person where there are substantial grounds for believing that he would be in danger of being subjected to torture". The fact that a specialised treaty should spell out in detail a specific obligation attaching to the prohibition of torture does not mean that an essentially similar obligation is not already inherent in the general terms of Article 3 (art. 3) of the European Convention. It would hardly be compatible with the underlying values of the Convention, that "common heritage of political traditions, ideals, freedom and the rule of law" to which the Preamble refers, were a Contracting State knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, however heinous the crime allegedly committed. Extradition in such circumstances, while not explicitly referred to in the brief and general wording of Article 3 (art. 3), would plainly be contrary to the spirit and intendment of the Article, and in the Court ’ s view this inherent obligation not to extradite also extends to cases in which the fugitive would be faced in the receiving State by a real risk of exposure to inhuman or degrading treatment or punishment proscribed by that Article (art. 3). 89. What amounts to "inhuman or degrading treatment or punishment" depends on all the circumstances of the case (see paragraph 100 below). Furthermore, inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual ’ s fundamental rights. As movement about the world becomes easier and crime takes on a larger international dimension, it is increasingly in the interest of all nations that suspected offenders who flee abroad should be brought to justice. Conversely, the establishment of safe havens for fugitives would not only result in danger for the State obliged to harbour the protected person but also tend to undermine the foundations of extradition. These considerations must also be included among the factors to be taken into account in the interpretation and application of the notions of inhuman and degrading treatment or punishment in extradition cases. 90. It is not normally for the Convention institutions to pronounce on the existence or otherwise of potential violations of the Convention. However, where an applicant claims that a decision to extradite him would, if implemented, be contrary to Article 3 (art. 3) by reason of its foreseeable consequences in the requesting country, a departure from this principle is necessary, in view of the serious and irreparable nature of the alleged suffering risked, in order to ensure the effectiveness of the safeguard provided by that Article (art. 3) (see paragraph 87 above). 91. In sum, the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3 (art. 3), and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country. The establishment of such responsibility inevitably involves an assessment of conditions in the requesting country against the standards of Article 3 (art. 3) of the Convention. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment. B. Application of Article 3 (art. 3) in the particular circumstances of the present case 92. The extradition procedure against the applicant in the United Kingdom has been completed, the Secretary of State having signed a warrant ordering his surrender to the United States authorities (see paragraph 24 above); this decision, albeit as yet not implemented, directly affects him. It therefore has to be determined on the above principles whether the foreseeable consequences of Mr Soering ’ s return to the United States are such as to attract the application of Article 3 (art. 3). This inquiry must concentrate firstly on whether Mr Soering runs a real risk of being sentenced to death in Virginia, since the source of the alleged inhuman and degrading treatment or punishment, namely the "death row phenomenon", lies in the imposition of the death penalty. Only in the event of an affirmative answer to this question need the Court examine whether exposure to the "death row phenomenon" in the circumstances of the applicant ’ s case would involve treatment or punishment incompatible with Article 3 (art. 3). 1. Whether the applicant runs a real risk of a death sentence and hence of exposure to the "death row phenomenon" 93. The United Kingdom Government, contrary to the Government of the Federal Republic of Germany, the Commission and the applicant, did not accept that the risk of a death sentence attains a sufficient level of likelihood to bring Article 3 (art. 3) into play. Their reasons were fourfold. Firstly, as illustrated by his interview with the German prosecutor where he appeared to deny any intention to kill (see paragraph 16 above), the applicant has not acknowledged his guilt of capital murder as such. Secondly, only a prima facie case has so far been made out against him. In particular, in the United Kingdom Government ’ s view the psychiatric evidence (see paragraph 21 above) is equivocal as to whether Mr Soering was suffering from a disease of the mind sufficient to amount to a defence of insanity under Virginia law (as to which, see paragraph 50 above). Thirdly, even if Mr Soering is convicted of capital murder, it cannot be assumed that in the general exercise of their discretion the jury will recommend, the judge will confirm and the Supreme Court of Virginia will uphold the imposition of the death penalty (see paragraphs 42-47 and 52 above). The United Kingdom Government referred to the presence of important mitigating factors, such as the applicant ’ s age and mental condition at the time of commission of the offence and his lack of previous criminal activity, which would have to be taken into account by the jury and then by the judge in the separate sentencing proceedings (see paragraphs 44-47 and 51 above). Fourthly, the assurance received from the United States must at the very least significantly reduce the risk of a capital sentence either being imposed or carried out (see paragraphs 20, 37 and 69 above). At the public hearing the Attorney General nevertheless made clear his Government ’ s understanding that if Mr Soering were extradited to the United States there was "some risk", which was "more than merely negligible", that the death penalty would be imposed. 94. As the applicant himself pointed out, he has made to American and British police officers and to two psychiatrists admissions of his participation in the killings of the Haysom parents, although he appeared to retract those admissions somewhat when questioned by the German prosecutor (see paragraphs 13, 16 and 21 above). It is not for the European Court to usurp the function of the Virginia courts by ruling that a defence of insanity would or would not be available on the psychiatric evidence as it stands. The United Kingdom Government are justified in their assertion that no assumption can be made that Mr Soering would certainly or even probably be convicted of capital murder as charged (see paragraphs 13 in fine and 40 above). Nevertheless, as the Attorney General conceded on their behalf at the public hearing, there is "a significant risk" that the applicant would be so convicted. 95. Under Virginia law, before a death sentence can be returned the prosecution must prove beyond reasonable doubt the existence of at least one of the two statutory aggravating circumstances, namely future dangerousness or vileness (see paragraph 43 above). In this connection, the horrible and brutal circumstances of the killings (see paragraph 12 above) would presumably tell against the applicant, regard being had to the case-law on the grounds for establishing the "vileness" of the crime (see paragraph 43 above). Admittedly, taken on their own the mitigating factors do reduce the likelihood of the death sentence being imposed. No less than four of the five facts in mitigation expressly mentioned in the Code of Virginia could arguably apply to Mr Soering ’ s case. These are a defendant ’ s lack of any previous criminal history, the fact that the offence was committed while a defendant was under extreme mental or emotional disturbance, the fact that at the time of commission of the offence the capacity of a defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was significantly diminished, and a defendant ’ s age (see paragraph 45 above). 96. These various elements arguing for or against the imposition of a death sentence have to be viewed in the light of the attitude of the prosecuting authorities. 97. The Commonwealth ’ s Attorney for Bedford County, Mr Updike, who is responsible for conducting the prosecution against the applicant, has certified that "should Jens Soering be convicted of the offence of capital murder as charged ... a representation will be made in the name of the United Kingdom to the judge at the time of sentencing that it is the wish of the United Kingdom that the death penalty should not be imposed or carried out" (see paragraph 20 above). The Court notes, like Lord Justice Lloyd in the Divisional Court (see paragraph 22 above), that this undertaking is far from reflecting the wording of Article IV of the 1972 Extradition Treaty between the United Kingdom and the United States, which speaks of "assurances satisfactory to the requested Party that the death penalty will not be carried out" (see paragraph 36 above). However, the offence charged, being a State and not a Federal offence, comes within the jurisdiction of the Commonwealth of Virginia; it appears as a consequence that no direction could or can be given to the Commonwealth ’ s Attorney by any State or Federal authority to promise more; the Virginia courts as judicial bodies cannot bind themselves in advance as to what decisions they may arrive at on the evidence; and the Governor of Virginia does not, as a matter of policy, promise that he will later exercise his executive power to commute a death penalty (see paragraphs 58-60 above). This being so, Mr Updike ’ s undertaking may well have been the best "assurance" that the United Kingdom could have obtained from the United States Federal Government in the particular circumstances. According to the statement made to Parliament in 1987 by a Home Office Minister, acceptance of undertakings in such terms "means that the United Kingdom authorities render up a fugitive or are prepared to send a citizen to face an American court on the clear understanding that the death penalty will not be carried out ... It would be a fundamental blow to the extradition arrangements between our two countries if the death penalty were carried out on an individual who had been returned under those circumstances" (see paragraph 37 above). Nonetheless, the effectiveness of such an undertaking has not yet been put to the test. 98. The applicant contended that representations concerning the wishes of a foreign government would not be admissible as a matter of law under the Virginia Code or, if admissible, of any influence on the sentencing judge. Whatever the position under Virginia law and practice (as to which, see paragraphs 42, 46, 47 and 69 above), and notwithstanding the diplomatic context of the extradition relations between the United Kingdom and the United States, objectively it cannot be said that the undertaking to inform the judge at the sentencing stage of the wishes of the United Kingdom eliminates the risk of the death penalty being imposed. In the independent exercise of his discretion the Commonwealth ’ s Attorney has himself decided to seek and to persist in seeking the death penalty because the evidence, in his determination, supports such action (see paragraph 20 in fine above). If the national authority with responsibility for prosecuting the offence takes such a firm stance, it is hardly open to the Court to hold that there are no substantial grounds for believing that the applicant faces a real risk of being sentenced to death and hence experiencing the "death row phenomenon". 99. The Court ’ s conclusion is therefore that the likelihood of the feared exposure of the applicant to the "death row phenomenon" has been shown to be such as to bring Article 3 (art. 3) into play. 2. Whether in the circumstances the risk of exposure to the "death row phenomenon" would make extradition a breach of Article 3 (art. 3) (a) General considerations 100. As is established in the Court ’ s case-law, ill-treatment, including punishment, must attain a minimum level of severity if it is to fall within the scope of Article 3 (art. 3). The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment or punishment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim (see the above-mentioned Ireland v. the United Kingdom judgment, Series A no. 25, p. 65, § 162; and the Tyrer judgment of 25 April 1978, Series A no. 26, pp. 14-15, §§ 29 and 30). Treatment has been held by the Court to be both "inhuman" because it was premeditated, was applied for hours at a stretch and "caused, if not actual bodily injury, at least intense physical and mental suffering", and also "degrading" because it was "such as to arouse in [its] victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance" (see the above-mentioned Ireland v. the United Kingdom judgment, p. 66, § 167). In order for a punishment or treatment associated with it to be "inhuman" or "degrading", the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate punishment (see the Tyrer judgment, loc. cit.). In this connection, account is to be taken not only of the physical pain experienced but also, where there is a considerable delay before execution of the punishment, of the sentenced person ’ s mental anguish of anticipating the violence he is to have inflicted on him. 101. Capital punishment is permitted under certain conditions by Article 2 § 1 (art. 2-1) of the Convention, which reads: "Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law." In view of this wording, the applicant did not suggest that the death penalty per se violated Article 3 (art. 3). He, like the two Government Parties, agreed with the Commission that the extradition of a person to a country where he risks the death penalty does not in itself raise an issue under either Article 2 (art. 2) or Article 3 (art. 3). On the other hand, Amnesty International in their written comments (see paragraph 8 above) argued that the evolving standards in Western Europe regarding the existence and use of the death penalty required that the death penalty should now be considered as an inhuman and degrading punishment within the meaning of Article 3 (art. 3). 102. Certainly, "the Convention is a living instrument which ... must be interpreted in the light of present-day conditions"; and, in assessing whether a given treatment or punishment is to be regarded as inhuman or degrading for the purposes of Article 3 (art. 3), "the Court cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field" (see the above-mentioned Tyrer judgment, Series A no. 26, pp. 15-16, § 31). De facto the death penalty no longer exists in time of peace in the Contracting States to the Convention. In the few Contracting States which retain the death penalty in law for some peacetime offences, death sentences, if ever imposed, are nowadays not carried out. This "virtual consensus in Western European legal systems that the death penalty is, under current circumstances, no longer consistent with regional standards of justice", to use the words of Amnesty International, is reflected in Protocol No. 6 (P6) to the Convention, which provides for the abolition of the death penalty in time of peace. Protocol No. 6 (P6) was opened for signature in April 1983, which in the practice of the Council of Europe indicates the absence of objection on the part of any of the Member States of the Organisation; it came into force in March 1985 and to date has been ratified by thirteen Contracting States to the Convention, not however including the United Kingdom. Whether these marked changes have the effect of bringing the death penalty per se within the prohibition of ill-treatment under Article 3 (art. 3) must be determined on the principles governing the interpretation of the Convention. 103. The Convention is to be read as a whole and Article 3 (art. 3) should therefore be construed in harmony with the provisions of Article 2 (art. 2) (see, mutatis mutandis, the Klass and Others judgment of 6 September 1978, Series A no. 28, p. 31, § 68). On this basis Article 3 (art. 3) evidently cannot have been intended by the drafters of the Convention to include a general prohibition of the death penalty since that would nullify the clear wording of Article 2 § 1 (art. 2-1). Subsequent practice in national penal policy, in the form of a generalised abolition of capital punishment, could be taken as establishing the agreement of the Contracting States to abrogate the exception provided for under Article 2 § 1 (art. 2-1) and hence to remove a textual limit on the scope for evolutive interpretation of Article 3 (art. 3). However, Protocol No. 6 (P6), as a subsequent written agreement, shows that the intention of the Contracting Parties as recently as 1983 was to adopt the normal method of amendment of the text in order to introduce a new obligation to abolish capital punishment in time of peace and, what is more, to do so by an optional instrument allowing each State to choose the moment when to undertake such an engagement. In these conditions, notwithstanding the special character of the Convention (see paragraph 87 above), Article 3 (art. 3) cannot be interpreted as generally prohibiting the death penalty. 104. That does not mean however that circumstances relating to a death sentence can never give rise to an issue under Article 3 (art. 3). The manner in which it is imposed or executed, the personal circumstances of the condemned person and a disproportionality to the gravity of the crime committed, as well as the conditions of detention awaiting execution, are examples of factors capable of bringing the treatment or punishment received by the condemned person within the proscription under Article 3 (art. 3). Present-day attitudes in the Contracting States to capital punishment are relevant for the assessment whether the acceptable threshold of suffering or degradation has been exceeded. (b) The particular circumstances 105. The applicant submitted that the circumstances to which he would be exposed as a consequence of the implementation of the Secretary of State ’ s decision to return him to the United States, namely the "death row phenomenon", cumulatively constituted such serious treatment that his extradition would be contrary to Article 3 (art. 3). He cited in particular the delays in the appeal and review procedures following a death sentence, during which time he would be subject to increasing tension and psychological trauma; the fact, so he said, that the judge or jury in determining sentence is not obliged to take into account the defendant ’ s age and mental state at the time of the offence; the extreme conditions of his future detention on "death row" in Mecklenburg Correctional Center, where he expects to be the victim of violence and sexual abuse because of his age, colour and nationality; and the constant spectre of the execution itself, including the ritual of execution. He also relied on the possibility of extradition or deportation, which he would not oppose, to the Federal Republic of Germany as accentuating the disproportionality of the Secretary of State ’ s decision. The Government of the Federal Republic of Germany took the view that, taking all the circumstances together, the treatment awaiting the applicant in Virginia would go so far beyond treatment inevitably connected with the imposition and execution of a death penalty as to be "inhuman" within the meaning of Article 3 (art. 3). On the other hand, the conclusion expressed by the Commission was that the degree of severity contemplated by Article 3 (art. 3) would not be attained. The United Kingdom Government shared this opinion. In particular, they disputed many of the applicant ’ s factual allegations as to the conditions on death row in Mecklenburg and his expected fate there. i. Length of detention prior to execution 106. The period that a condemned prisoner can expect to spend on death row in Virginia before being executed is on average six to eight years (see paragraph 56 above). This length of time awaiting death is, as the Commission and the United Kingdom Government noted, in a sense largely of the prisoner ’ s own making in that he takes advantage of all avenues of appeal which are offered to him by Virginia law. The automatic appeal to the Supreme Court of Virginia normally takes no more than six months (see paragraph 52 above). The remaining time is accounted for by collateral attacks mounted by the prisoner himself in habeas corpus proceedings before both the State and Federal courts and in applications to the Supreme Court of the United States for certiorari review, the prisoner at each stage being able to seek a stay of execution (see paragraphs 53-54 above). The remedies available under Virginia law serve the purpose of ensuring that the ultimate sanction of death is not unlawfully or arbitrarily imposed. Nevertheless, just as some lapse of time between sentence and execution is inevitable if appeal safeguards are to be provided to the condemned person, so it is equally part of human nature that the person will cling to life by exploiting those safeguards to the full. However well-intentioned and even potentially beneficial is the provision of the complex of post-sentence procedures in Virginia, the consequence is that the condemned prisoner has to endure for many years the conditions on death row and the anguish and mounting tension of living in the ever-present shadow of death. ii. Conditions on death row 107. As to conditions in Mecklenburg Correctional Center, where the applicant could expect to be held if sentenced to death, the Court bases itself on the facts which were uncontested by the United Kingdom Government, without finding it necessary to determine the reliability of the additional evidence adduced by the applicant, notably as to the risk of homosexual abuse and physical attack undergone by prisoners on death row (see paragraph 64 above). The stringency of the custodial regime in Mecklenburg, as well as the services (medical, legal and social) and the controls (legislative, judicial and administrative) provided for inmates, are described in some detail above (see paragraphs 61-63 and 65-68). In this connection, the United Kingdom Government drew attention to the necessary requirement of extra security for the safe custody of prisoners condemned to death for murder. Whilst it might thus well be justifiable in principle, the severity of a special regime such as that operated on death row in Mecklenburg is compounded by the fact of inmates being subject to it for a protracted period lasting on average six to eight years. iii. The applicant ’ s age and mental state 108. At the time of the killings, the applicant was only 18 years old and there is some psychiatric evidence, which was not contested as such, that he "was suffering from [such] an abnormality of mind ... as substantially impaired his mental responsibility for his acts" (see paragraphs 11, 12 and 21 above). Unlike Article 2 (art. 2) of the Convention, Article 6 of the 1966 International Covenant on Civil and Political Rights and Article 4 of the 1969 American Convention on Human Rights expressly prohibit the death penalty from being imposed on persons aged less than 18 at the time of commission of the offence. Whether or not such a prohibition be inherent in the brief and general language of Article 2 (art. 2) of the European Convention, its explicit enunciation in other, later international instruments, the former of which has been ratified by a large number of States Parties to the European Convention, at the very least indicates that as a general principle the youth of the person concerned is a circumstance which is liable, with others, to put in question the compatibility with Article 3 (art. 3) of measures connected with a death sentence. It is in line with the Court ’ s case-law (as summarised above at paragraph 100) to treat disturbed mental health as having the same effect for the application of Article 3 (art. 3). 109. Virginia law, as the United Kingdom Government and the Commission emphasised, certainly does not ignore these two factors. Under the Virginia Code account has to be taken of mental disturbance in a defendant, either as an absolute bar to conviction if it is judged to be sufficient to amount to insanity or, like age, as a fact in mitigation at the sentencing stage (see paragraphs 44-47 and 50-51 above). Additionally, indigent capital murder defendants are entitled to the appointment of a qualified mental health expert to assist in the preparation of their submissions at the separate sentencing proceedings (see paragraph 51 above). These provisions in the Virginia Code undoubtedly serve, as the American courts have stated, to prevent the arbitrary or capricious imposition of the death penalty and narrowly to channel the sentencer ’ s discretion (see paragraph 48 above). They do not however remove the relevance of age and mental condition in relation to the acceptability, under Article 3 (art. 3), of the "death row phenomenon" for a given individual once condemned to death. Although it is not for this Court to prejudge issues of criminal responsibility and appropriate sentence, the applicant ’ s youth at the time of the offence and his then mental state, on the psychiatric evidence as it stands, are therefore to be taken into consideration as contributory factors tending, in his case, to bring the treatment on death row within the terms of Article 3 (art. 3). iv. Possibility of extradition to the Federal Republic of Germany 110. For the United Kingdom Government and the majority of the Commission, the possibility of extraditing or deporting the applicant to face trial in the Federal Republic of Germany (see paragraphs 16, 19, 26, 38 and 71-74 above), where the death penalty has been abolished under the Constitution (see paragraph 72 above), is not material for the present purposes. Any other approach, the United Kingdom Government submitted, would lead to a "dual standard" affording the protection of the Convention to extraditable persons fortunate enough to have such an alternative destination available but refusing it to others not so fortunate. This argument is not without weight. Furthermore, the Court cannot overlook either the horrible nature of the murders with which Mr Soering is charged or the legitimate and beneficial role of extradition arrangements in combating crime. The purpose for which his removal to the United States was sought, in accordance with the Extradition Treaty between the United Kingdom and the United States, is undoubtedly a legitimate one. However, sending Mr Soering to be tried in his own country would remove the danger of a fugitive criminal going unpunished as well as the risk of intense and protracted suffering on death row. It is therefore a circumstance of relevance for the overall assessment under Article 3 (art. 3) in that it goes to the search for the requisite fair balance of interests and to the proportionality of the contested extradition decision in the particular case (see paragraphs 89 and 104 above). (c) Conclusion 111. For any prisoner condemned to death, some element of delay between imposition and execution of the sentence and the experience of severe stress in conditions necessary for strict incarceration are inevitable. The democratic character of the Virginia legal system in general and the positive features of Virginia trial, sentencing and appeal procedures in particular are beyond doubt. The Court agrees with the Commission that the machinery of justice to which the applicant would be subject in the United States is in itself neither arbitrary nor unreasonable, but, rather, respects the rule of law and affords not inconsiderable procedural safeguards to the defendant in a capital trial. Facilities are available on death row for the assistance of inmates, notably through provision of psychological and psychiatric services (see paragraph 65 above). However, in the Court ’ s view, having regard to the very long period of time spent on death row in such extreme conditions, with the ever present and mounting anguish of awaiting execution of the death penalty, and to the personal circumstances of the applicant, especially his age and mental state at the time of the offence, the applicant ’ s extradition to the United States would expose him to a real risk of treatment going beyond the threshold set by Article 3 (art. 3). A further consideration of relevance is that in the particular instance the legitimate purpose of extradition could be achieved by another means which would not involve suffering of such exceptional intensity or duration. Accordingly, the Secretary of State ’ s decision to extradite the applicant to the United States would, if implemented, give rise to a breach of Article 3 (art. 3). This finding in no way puts in question the good faith of the United Kingdom Government, who have from the outset of the present proceedings demonstrated their desire to abide by their Convention obligations, firstly by staying the applicant ’ s surrender to the United States authorities in accord with the interim measures indicated by the Convention institutions and secondly by themselves referring the case to the Court for a judicial ruling (see paragraphs 1, 4, 24 and 77 above). II. ALLEGED BREACH OF ARTICLE 6 (art. 6) A. The United States criminal proceedings 112. The applicant submitted that, because of the absence of legal aid in Virginia to fund collateral challenges before the Federal courts (see paragraph 57 above), on his return to the United States he would not be able to secure his legal representation as required by Article 6 § 3 (c) (art. 6-3-c), which reads: "Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ..." The Commission expressed the opinion that the proposed extradition of the applicant could not give rise to the responsibility of the United Kingdom Government under Article 6 § 3 (c) (art. 6-3-c). The United Kingdom Government concurred with this analysis and, in the alternative, submitted that the applicant ’ s allegations were ill-founded. 113. The right to a fair trial in criminal proceedings, as embodied in Article 6 (art. 6), holds a prominent place in a democratic society (see, inter alia, the Colozza judgment of 12 February 1985, Series A no. 89, p. 16, § 32). The Court does not exclude that an issue might exceptionally be raised under Article 6 (art. 6) by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country. However, the facts of the present case do not disclose such a risk. Accordingly, no issue arises under Article 6 § 3 (c) (art. 6-3-c) in this respect. B. The extradition proceedings in England 114. The applicant further contended that the refusal of the Magistrates ’ Court in the extradition proceedings to consider evidence as to his psychiatric condition (see paragraph 21 above) violated paragraphs 1 and 3 (d) of Article 6 (art. 6-1, art. 6-3-d), which respectively provide: "1. In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... ." "3. Everyone charged with a criminal offence has the following minimum rights: ... (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ..." 115. As the Delegate of the Commission pointed out, this complaint was not pleaded before the Commission. Such claims as the applicant then made of a failure to take proper account of the psychiatric evidence were in relation to Article 3 (art. 3) and limited to the Secretary of State ’ s ultimate decision to extradite him to the United States. He did not formulate any grievances, whether under Article 6 (art. 6), Article 3 (art. 3) or Article 13 (art. 13), regarding the scope or conduct of the Magistrates ’ Court proceedings as such. This being so, the new allegation of a breach of Article 6 (art. 6) constitutes not merely a further legal submission or argument but a fresh and separate complaint falling outside the compass of the case, which is delimited by the Commission ’ s decision on admissibility (see, inter alia, the Schiesser judgment of 4 December 1979, Series A no. 34, p. 17, § 41, and the Johnston and Others judgment of 18 December 1986, Series A no. 112, p. 23, § 48). Accordingly, the Court has no jurisdiction to entertain the matter. III. ALLEGED BREACH OF ARTICLE 13 (art. 13) 116. Finally, the applicant alleged a breach of Article 13 (art. 13), which provides: "Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity." In his submission, he had no effective remedy in the United Kingdom in respect of his complaint under Article 3 (art. 3). The majority of the Commission arrived at the same conclusion. The United Kingdom Government however disagreed, arguing that Article 13 (art. 13) had no application in the circumstances of the present case or, in the alternative, that the aggregate of remedies provided for under domestic law was adequate. 117. In view of the Court ’ s finding regarding Article 3 (art. 3) (see paragraph 111 above), the applicant ’ s claim under that Article (art. 3) cannot be regarded either as incompatible with the provisions of the Convention or as not "arguable" on its merits (see, inter alia, the Boyle and Rice judgment of 27 April 1988, Series A no. 131, p. 23, § 52). The United Kingdom Government contended, however, that Article 13 (art. 13) can have no application in the circumstances of the case, because the challenge is in effect to the terms of a treaty between the United Kingdom and the United States and also because the alleged violation of the substantive provision is of an anticipatory nature. The Court does not consider it necessary to rule specifically on these two objections to applicability since it has come to the conclusion that in any event the requirements of Article 13 (art. 13) were not violated. 118. The United Kingdom Government relied on the aggregate of remedies provided by the Magistrates ’ Court proceedings, an application for habeas corpus and an application for judicial review (see paragraphs 21-23, 32-33 and 35 above). 119. The Court will commence its examination with judicial review proceedings since they constitute the principal means for challenging a decision to extradite once it has been taken. Both the applicant and the Commission were of the opinion that the scope of judicial review was too narrow to allow the courts to consider the subject matter of the complaint which the applicant has made in the context of Article 3 (art. 3). The applicant further contended that the courts ’ lack of jurisdiction to issue interim injunctions against the Crown was an additional reason rendering judicial review an ineffective remedy. 120. Article 13 (art. 13) guarantees the availability of a remedy at national level to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order (see the above-mentioned Boyle and Rice judgment, Series A no. 131, p. 23, § 52). The effect of Article 13 (art. 13) is thus to require the provision of a domestic remedy allowing the competent "national authority" both to deal with the substance of the relevant Convention complaint and to grant appropriate relief (see, inter alia, the Silver and Others judgment of 25 March 1983, Series A no. 61, p. 42, § 113 (a)). 121. In judicial review proceedings the court may rule the exercise of executive discretion unlawful on the ground that it is tainted with illegality, irrationality or procedural impropriety (see paragraph 35 above). In an extradition case the test of "irrationality", on the basis of the so-called "Wednesbury principles", would be that no reasonable Secretary of State could have made an order for surrender in the circumstances (ibid.). According to the United Kingdom Government, a court would have jurisdiction to quash a challenged decision to send a fugitive to a country where it was established that there was a serious risk of inhuman or degrading treatment, on the ground that in all the circumstances of the case the decision was one that no reasonable Secretary of State could take. Although the Convention is not considered to be part of United Kingdom law (ibid.), the Court is satisfied that the English courts can review the "reasonableness" of an extradition decision in the light of the kind of factors relied on by Mr Soering before the Convention institutions in the context of Article 3 (art. 3). 122. Mr Soering did admittedly make an application for judicial review together with his application for habeas corpus and was met with an unfavourable response from Lord Justice Lloyd on the issue of "irrationality" (see paragraph 22 above). However, as Lord Justice Lloyd explained, the claim failed because it was premature, the courts only having jurisdiction once the Minister has actually taken his decision (ibid.). Furthermore, the arguments adduced by Mr Soering were by no means the same as those relied on when justifying his complaint under Article 3 (art. 3) before the Convention institutions. His counsel before the Divisional Court limited himself to submitting that the assurance by the United States authorities was so worthless that no reasonable Secretary of State could regard it as satisfactory under the Treaty. This is an argument going to the likelihood of the death penalty being imposed but says nothing about the quality of the treatment awaiting Mr Soering after sentence to death, this being the substance of his allegation of inhuman and degrading treatment. There was nothing to have stopped Mr Soering bringing an application for judicial review at the appropriate moment and arguing "Wednesbury unreasonableness" on the basis of much the same material that he adduced before the Convention institutions in relation to the "death row phenomenon". Such a claim would have been given "the most anxious scrutiny" in view of the fundamental nature of the human right at stake (see paragraph 35 above). The effectiveness of the remedy, for the purposes of Article 13 (art. 13), does not depend on the certainty of a favourable outcome for Mr Soering (see the Swedish Engine Drivers ’ Union judgment of 6 February 1976, Series A no. 20, p. 18, § 50), and in any event it is not for this Court to speculate as to what would have been the decision of the English courts. 123. The English courts ’ lack of jurisdiction to grant interim injunctions against the Crown (see paragraph 35 in fine above) does not, in the Court ’ s opinion, detract from the effectiveness of judicial review in the present connection, since there is no suggestion that in practice a fugitive would ever be surrendered before his application to the Divisional Court and any eventual appeal therefrom had been determined. 124. The Court concludes that Mr Soering did have available to him under English law an effective remedy in relation to his complaint under Article 3 (art. 3). This being so, there is no need to inquire into the other two remedies referred to by the United Kingdom Government. There is accordingly no breach of Article 13 (art. 13). IV. APPLICATION OF ARTICLE 50 (art. 50) 125. Under the terms of Article 50 (art. 50), "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." Mr Soering stated that, since the object of his application was to secure the enjoyment of his rights guaranteed by the Convention, just satisfaction of his claims would be achieved by effective enforcement of the Court ’ s ruling. He invited the Court to assist the States Parties to the case and himself by giving directions in relation to the operation of its judgment. In addition, he claimed the costs and expenses of his representation in the proceedings arising from the request to the United Kingdom Government by the authorities of the United States of America for his extradition. He quantified these costs and expenses at £1,500 and £21,000 for lawyers ’ fees in respect of the domestic and Strasbourg proceedings respectively, £2,067 and 4,885.60 FF for his lawyers ’ travel and accommodation expenses when appearing before the Convention institutions, and £2,185.80 and 145 FF for sundry out-of-pocket expenses, making an overall total of £26,752.80 and 5,030.60 FF. 126. No breach of Article 3 (art. 3) has as yet occurred. Nevertheless, the Court having found that the Secretary of State ’ s decision to extradite to the United States of America would, if implemented, give rise to a breach of Article 3 (art. 3), Article 50 (art. 50) must be taken as applying to the facts of the present case. 127. The Court considers that its finding regarding Article 3 (art. 3) of itself amounts to adequate just satisfaction for the purposes of Article 50 (art. 50). The Court is not empowered under the Convention to make accessory directions of the kind requested by the applicant (see, mutatis mutandis, the Dudgeon judgment of 24 February 1983, Series A no. 59, p. 8, § 15). By virtue of Article 54 (art. 54), the responsibility for supervising execution of the Court ’ s judgment rests with the Committee of Ministers of the Council of Europe. 128. The United Kingdom Government did not in principle contest the claim for reimbursement of costs and expenses, but suggested that, in the event that the Court should find one or more of the applicant ’ s complaints of violation of the Convention to be unfounded, it would be appropriate for the Court, deciding on an equitable basis as required by Article 50 (art. 50), to reduce the amount awarded accordingly (see the Le Compte, Van Leuven and De Meyere judgment of 18 October 1982, Series A no. 54, p. 10, § 21). The applicant ’ s essential concern, and the bulk of the argument on all sides, focused on the complaint under Article 3 (art. 3), and on that issue the applicant has been successful. The Court therefore considers that in equity the applicant should recover his costs and expenses in full. | The Court recalled that the Convention did not govern the actions of States not parties to it, nor did it require the Contracting States to impose Convention standards on other States. However, the decision by a Contracting State to extradite someone might engage that State’s responsibility under the Convention where a risk existed that the person would be tortured or otherwise ill-treated if extradited. There was no question of |
800 | Right to liberty and security (Article 5 of the Convention) | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Relevant statutory provisions 1. The Mental Health Act 1983 (“the 1983 Act”) 52. The majority of persons who receive in-patient psychiatric care are treated without resort to the compulsory powers under Part II of the 1983 Act and these are called “informal patients”. Such patients are either “voluntary patients”, namely, those persons with legal capacity to consent and who have consented to admission for treatment, or persons who do not have the legal capacity to consent to treatment but who are admitted for treatment on an “informal basis” as they do not object to that admission (incapacitated but compliant). 53. Section 131(1) of the 1983 Act provides as follows: “Nothing in this Act shall be construed as preventing a patient who requires treatment for mental disorder from being admitted to any hospital or mental nursing home in pursuance of arrangements made in that behalf and without any application, order or direction rendering him liable to be detained under this Act, or from remaining in any hospital or mental nursing home in pursuance of such arrangements after he has ceased to be so liable to be detained.” 54. The 1983 Act provides for a number of substantive and procedural safeguards to those “ detained ” under its provisions. (a) Patients can only be detained for assessment ( section 2 ) or for treatment ( section 3 ) where the strict statutory criteria set out in Part II of the Act have been met. In general (and emergency admissions apart), detention requires the acceptance by the relevant institution of an application in the prescribed form by a qualified person. That application must be founded upon written medical recommendations in the prescribed form of two medical practitioners, both of whom have recently examined the patient and have no personal interest and one of whom has special experience in the diagnosis or treatment of mental disorder. (b) Part IV of the 1983 Act sets out rules on the need to obtain a patient ’ s consent or a second medical opinion for certain forms of medical treatment. (c) Part V provides for an opportunity to apply, or to be automatically referred, to a Mental Health Review Tribunal (“MHRT”) for a review of the need for continued detention. (d) The “nearest relative” of a detainee has the power, inter alia, to object to an application for involuntary committal under section 3 of the 1983 Act, to discharge a patient from such detention and to apply to the MHRT (in certain cases) for a patient ’ s discharge (sections 26-32). ( e ) A former detainee has access to aftercare services (section 117). ( f ) The Secretary of State must create a Code of Practice (section 118 ) in order to guide those concerned with the treatment of psychiatric detainees. Section 120 charges the Secretary of State with the supervision of the exercise of the powers and duties conferred and imposed by the 1983 Act and accords him associated powers to visit, interview and investigate. Section 121 established the Mental Health Act Commission, which exercises the functions of the Secretary of State under section 118 and 120 of the 1983 Act. (g) Detainees have a right to receive information about their detention from hospital managers ( section 132 of the 1983 Act ). 2. The Health Service Commissioners Act 1993 (“the 1993 Act”) 55. The relevant parts of section 3 of the 1993 Act, entitled “ General remit of Commissioners”, provide : “(1) On a complaint duly made to a Commissioner by or on behalf of a person that he has sustained injustice or hardship in consequence of – (a) a failure in a service provided by a health service body, (b) a failure of such a body to provide a service which it was a function of the body to provide, or (c) maladministration connected with any other action taken by or on behalf of such a body, the Commissioner may, subject to the provisions of this Act, investigate the alleged failure or other action. ... (4) Nothing in this Act authorises or requires a Commissioner to question the merits of a decision taken without maladministration by a health service body in the exercise of a discretion vested in that body.” 56. Section 5 of the 1993 Act is entitled “Exercise of clinical judgment” and provides as follows: “(1) A Commissioner shall not conduct an investigation in respect of action taken in connection with – (a) the diagnosis of illness, or (b) the care or treatment of a patient, which, in the opinion of the Commissioner, was taken solely in consequence of the exercise of clinical judgment ... (2) In subsection (1), ‘ illness ’ includes a mental disorder within the meaning of the Mental Health Act 1983 ... ” B. Relevant jurisprudence 1. General 57. The common - law doctrine of necessity was relied on as early as Rex v. Coate (1772) Lofft 73, Scott v. Wakem (1862) 3 Foster and Finalson ’ s Nisi Prius Reports 328, 333, and Symm v. Fraser (1863) 3 Foster and Finalson ’ s Nisi Prius Reports 859, 883 (see Lord Goff ’ s judgment, paragraph 4 3 above). These cases provide authority for the proposition that the common law permitted the detention of those who were a danger, or potential danger, to themselves or others, in so far as this was shown to be necessary. This jurisdiction has also been exercised in relation to a range of medical treatment issues and, in particular, in relation to sterilisation operations ( Re F. (Mental Patient: Sterilisation) [1990] 2 Appeal Cases 1) and the continuance of artificial nutrition and hydration ( Airedale NHS Trust v. Bland [1993] Appeal Cases 789, 869). 58. The High Court has a certain jurisdiction to make declarations as to the best interests of an adult who lacks the capacity to make decisions. The jurisdiction will be exercised when there is a serious justiciable issue requiring a decision by the court. 2. Re F. (Adult: Court ’ s Jurisdiction) ([2001] Family Division Reports 38) 59. In June 2000 the Court of Appeal found that, where there was a risk of possible harm to a mentally incapable adult, the High Court had power, under its inherent jurisdiction and in the best interests of that person, to hear the issues involved and to grant the necessary declarations. It therefore dismissed an appeal which contested the High Court ’ s jurisdiction to make a declaration requested by a local authority in respect of the residence and contacts of an adult who lacked capacity and who was at risk of harm. 60. Lady Justice Butler-Sloss noted that the local authority was seeking to rely on the inherent jurisdiction of the court under the doctrine of necessity in order to direct where T. should live and to restrict and supervise her contact with her natural family. The local authority, supported by the Official Solicitor, submitted that the doctrine operated on a day-to- day basis in making ordinary decisions for the care and protection of an incapable adult as recognised in the present case ( R v. Bournewood Community and Mental Health NHS Trust, ex parte L. [1999] Appeal Cases 458). T. ’ s mother contended that the courts were unable to fill the gap caused by statutory amendments: while there was a limited jurisdiction to make declarations in medical cases on issues capable of resolution at the time of hearing, that did not extend to cases where the effect would be coercive over a long period without limit of time and without a clear view of future requirements for that person. 61. Lady Justice Butler-Sloss had no doubt that there was a serious justiciable issue which required a decision by the court. Mental health legislation did not cover the day-to- day affairs of mentally incapable adults and in both Re F. (Mental Patient: Sterilisation) and Bournewood (cited above) the courts had recognised that the doctrine of necessity might properly be relied on side by side with the statutory regime. The jurisdiction of the High Court to grant relief by way of declarations was therefore not excluded by the Mental Health Act 1983. As to the question of whether the problem (residence and contact) arising in the case came within the established principles so as to give the court jurisdiction to hear the issue of T. ’ s best interests and make declarations, she found in the affirmative: “There is an obvious gap in the framework of care for mentally incapacitated adults. If the court cannot act and the local authority case is correct, this vulnerable young woman would be left at serious risk with no recourse to protection, other than the future possibility of the criminal law. That is a serious injustice to T. who has rights which she is unable, herself, to protect. ... Although the decision of this court in Re S. (Hospital Patient: Court ’ s Jurisdiction) [1996] Fam 1 turned upon the locus standi of the claimant, the underlying issue, recognised by counsel and by this court was the best interests of S. When the matter was remitted to Hale J for decision, the question that she answered was his future residence (see Re S. (Hospital Patient: Foreign Curator) [1996] 1 FLR 167. Lord Goff in Bournewood recognised ... that the concept of necessity had a role to play in all branches of the law where obligations existed and was therefore a concept of great importance. In Re S. the Master of the Rolls set out the long-established power of the High Court to grant declarations in a wide variety of situations and to assume jurisdiction if there is no practicable alternative. He looked at the line of medical and similar cases and said at page 18 ... : ‘ Collectively, these cases appear to constitute the development of a new advisory declaratory jurisdiction. ’ In Re C. (Mental Patient: Contact) [1993] 1 FLR 940, one of the cases referred to by Sir Thomas Bingham MR, there was a dispute between the parents of an adult mentally incapacitated girl over contact between her and her mother. Eastham J held ... that: ‘ In an appropriate case, if the evidence bears out the proposition that access is for the benefit of the patient in this case, S. , I see no reason at all why the court should not grant access by way of a declaration. ’ In both Re C. and Re S. the declarations sought were in support of identifying the best interests of an incapable adult where individuals around him or her were in conflict over his/her future welfare. The application for declaratory relief in the present appeal is between a local authority and a mother but ... there is no distinction to be drawn between a local authority and an individual. A declaration is, in many ways, a flexible remedy able to meet a variety of situations. In the present conflict, where serious question marks hang over the future care of T. if returned to her mother, there is no practicable alternative to the intervention of the court. The declarations sought by the local authority may require alteration according to the facts found by the judge, but he would have the jurisdiction to vary them to meet the situation after those findings were made. There is the possibility that the judgment itself might resolve the situation. If it does not and declarations are required which determine where T should live, there is nothing in principle to inhibit a declaration that it was in her best interests that she should live in a local authority home and should not live anywhere else, nor, while she was in the home to regulate the arrangements for her care and as to with whom she might have contact. Such were the implications of the second stage of Re S. before Hale J and of Re C. (above). I am clear that it is essential that T. ’ s best interests should be considered by the High Court and that there is no impediment to the judge hearing the substantive issues involved in this case. The assumption of jurisdiction by the High Court on a case - by - case basis does not, however, detract from the obvious need expressed by the Law Commission and by the Government for a well-structured and clearly defined framework of protection of vulnerable, mentally incapacitated adults, particularly since the whole essence of declarations under the inherent jurisdiction is to meet a recognised individual problem and not to provide general guidance for mentally incapacitated adults. Until Parliament puts in place that defined framework, the High Court will still be required to help out where there is no other practicable alternative.” 3. R. -B. (A Patient) v. Official Solicitor, sub nom Re A. (Male Patient: Sterilisation) ([2000] 1 Family Court Reports 193). 62. Lady Justice Butler-Sloss found as follows in a judgment delivered in December 1999 : “Another question which arises from the decision in Re F. is the relationship of best interests to the Bolam test ( Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582). Doctors charged with the decisions about the future treatment of patients and whether such treatment would, in the cases of those lacking capacity to make their own decisions, be in their best interests, have to act at all times in accordance with a responsible and competent body of relevant professional opinion. That is the professional standard set for those who make such decisions. The doctor, acting to that required standard has, in my view, a second duty, that is to say he must act in the best interests of a mentally incapacitated patient. I do not consider that the two duties have been conflated into one requirement. To that extent I disagree with the Law Commission ’ s Report on Mental Incapacity (paragraph 3.26 ... ) and I prefer the alternative suggestion in [the] footnote ... ” 4. R. (Wilkinson) v. the Responsible Medical Officer Broadmoor Hospital ([2001] Court of Appeal, Civil Division ( England Wales ) 1545 ). 63. Mr Wilkinson, an involuntary psychiatric detainee, applied for judicial review of past and future treatment decisions. He argued that the domestic court had to examine the competing medical views before it in order properly to review the lawfulness of the enforced medical treatment in his case. The respondents argued that the level of scrutiny on judicial review, even applying the “super-Wednesbury” approach, did not allow the courts to substitute their view for that of the primary medical decision-maker and opposed the examination of the relevant health professionals. The High Court refused to call and cross-examine the health professionals on their medical opinions. 64. By the time the Court of Appeal heard the case, the Human Rights Act 1998 (incorporating the Convention into domestic law) had come into force (in October 2000). The applicant argued therefore that the provisions of, inter alia, Articles 2, 3, 6, 8, and 14 of the Convention reinforced his position as to the level of examination of the varying medical views to be carried out, while the respondents maintained that the 1998 Act did not mean that the courts must adopt a primary fact-finding role in such circumstances. 65. As regards any future proposed medical treatment (post-1998 Act), the Court of Appeal found that Articles 2, 3 and 8 of the Convention required, on judicial review, a full review of the merits of the relevant medical decisions and that a review in accordance with the “ super-Wednesbury” criteria would not have been sufficiently intrusive as to constitute such a proper review of the merits of those medical decisions. In this connection, the Court of Appeal referred to the European Court ’ s judgment in Smith and Grady v. the United Kingdom (nos. 33985/96 and 33986/96, §§ 135-39, ECHR 1999 ‑ VI). C. The Law Commission ’ s Report on “Mental incapacity”, February 1995 66. In the early 1990s the Law Commission produced a series of consultation papers entitled “ Mental incapacitated adults and decision - making” culminating in the above- mentioned report. The introduction noted: “1.1. It is widely recognised that ... the law as it now stands is unsystematic and full of glaring gaps. It does not rest on clear or modern foundations of principle. It has failed to keep up with social and demographic changes. It has also failed to keep up with developments in our understanding of the rights and needs of those with mental instability.” 67. As to the meaning of best interests, the report noted as follows: “3.26. Our recommendation that a ‘ best interests ’ criterion should apply throughout our scheme cannot be divorced from a recommendation that statute should provide some guidance to every decision-maker about what the criterion requires. No statutory guidance could offer an exhaustive account of what is in a person ’ s best interests, the intention being that the individual person and his or her individual circumstances should always determine the result. In our 1993 consultation papers, however, we suggested that certain principles of general application would always be relevant. At least in so far as substitute health-care decisions are concerned, the principles we suggested probably involve a significant departure from the present state of the law. This, as set out in [ Re F. (Mental Patient: Sterilisation) [1990] 2 AC 1], appears to provide that a doctor who acts in accordance with an accepted body of medical opinion is both (1) not negligent and (2) acting in the best interests of a patient without capacity.” The footnote at this point in the report (and to which Lady Justice Butler-Sloss referred in R. -B. (A Patient) v. Official Solicitor, cited above ) indicated as follows: “It may be that all [the judges in Re F. ] were saying was that a doctor must both (1) meet the standard of care required to avoid liability in negligence and (2) act in an incapacitated patient ’ s best interests. However, since they gave no indication of how those ‘ best interests ’ were to be identified, some commentators have concluded that the two requirements were in fact one. The speeches of the law lords in Airedale NHS Trust v. Bland [1993] AC 789 cannot be said to have resolved this important point, and Lord Goff again referred to the professional negligence standard when discussing what was in the patient ’ s best interests.” 68. The report went on: “This apparent conflation of the criterion for assessing complaints about professional negligence with the criterion for treating persons unable to consent has been the butt of vehement criticism. No medical professional body responding to consultation paper no. 129 argued in favour of retaining such a definition of ‘ best interests ’. Many were extremely anxious to see some clear and principled guidance given as to what ‘ best interests ’ might involve. ... 3.27. It should be made clear beyond any shadow of a doubt that acting in a person ’ s best interests amounts to something more than not treating that person in a negligent manner. Decisions taken on behalf of a person lacking capacity require a careful, focused consideration of that person as an individual. Judgments as to whether a professional acted negligently, on the other hand, require careful, focused consideration of how that particular professional acted as compared with the way in which other reasonably competent professionals would have acted. ... ” 69. The Law Commission recommended that, in deciding what is in a person ’ s best interests, regard should be had to: “(1) the ascertainable past and present wishes and feelings of the person concerned and the factors that person would consider if able to do so; (2) the need to permit and encourage the person to participate, or to improve his or her ability to participate, as fully as possible in anything done for and any decision affecting him or her; (3) the views of other people whom it is appropriate and practicable to consult about the person ’ s wishes or feelings and what would be in his or her best interests; (4) whether the purpose for which any action or decision is required can be as effectively achieved in a manner less restrictive of the person ’ s freedom of action. ” D. The Mental Health Act Code of Practice 1999 70. A revised Code of Practice, prepared pursuant to section 118 of the 1983 Act, came into force on 1 April 1999. The 1983 Act did not impose a legal duty to comply with the Code but, as it was a statutory document, failure to follow it could be referred to in evidence in legal proceedings. 71. Under the title “ Informal patients”, the Code stated: “2.7. Where admission to hospital is considered necessary and the patient is willing to be admitted informally this should in general be arranged. Compulsory admission powers should only be exercised in the last resort. Informal admission is usually appropriate when a mentally capable patient consents to admission, but not if detention is necessary because of the danger the patient presents to him or herself or others. Compulsory admission should be considered where a mentally capable patient ’ s current medical state, together with reliable evidence of past experience, indicates a strong likelihood that he or she will have a change of mind about informal admission prior to actually being admitted to hospital, with a resulting risk to their health or safety or to the safety of other people. 2.8. If at the time of admission the patient is mentally incapable of consent, but does not object to entering hospital and receiving care or treatment, admission should be informal (see R. v. Bournewood Community and Mental Health NHS Trust, ex parte L. [1998] 3 ALL ER 289 ... ). The decision to admit a mentally incapacitated patient informally should be made by the doctor in charge of the patient ’ s treatment in accordance with what is in the patient ’ s best interests and is justifiable on the basis of the common - law doctrine of necessity ... If a patient lacks capacity at the time of an assessment or review, it is particularly important that both clinical and social care requirements are considered, and that account is taken of the patient ’ s ascertainable wishes and feelings and the views of their immediate relatives and carers on what would be in their best interests.” 72. The relevant parts of paragraph 15.21 read as follows: “There are particular considerations that doctors must take into account in discharging their duty of care for those who lack capacity to consent. Treatment for their condition may be prescribed for them in their best interests under the common - law doctrine of necessity (see the decisions of the House of Lords in Re F. [1990] 2 AC 1 and R. v. Bournewood Community and Mental Health NHS Trust, ex parte L. [1998] 3 ALL ER 289). According to the decision in the case of Re F. , if treatment is given to a patient who is not capable of giving consent, ‘ in the patient ’ s best interests ’ the treatment must be: – necessary to save life or prevent a deterioration or ensure an improvement in the patient ’ s physical or mental health; and – in accordance with a practice accepted at the time by a reasonable body of medical opinion skilled in the particular form of treatment in question (the test that was originally laid down in [the Bolam case] ) .” E. Practice Note and Direction 2001 73. On 1 May 2001 a practice note was issued by the Official Solicitor entitled “ Declaratory proceedings: medical and welfare decisions for adults who lack capacity”. It combined the guidance given in earlier practice notes concerning sterilisation operations for incapacitated persons and the continuance of artificial nutrition and hydration for those in vegetative states, and was extended to cover a wider range of medical and welfare disputes concerning adults who lack capacity. The relevant parts provide: “2. The High Court has jurisdiction to make declarations as to the best interests of an adult who lacks decision-making capacity. The jurisdiction will be exercised when there is a serious justiciable issue requiring a decision by the court. It has been exercised in relation to a range of medical treatment issues, in particular sterilisation operations and the continuance of artificial nutrition and hydration. It has also been exercised in relation to residence and contact issues. The jurisdiction is comprehensively reviewed and analysed in Re F. (Adult: Court ’ s Jurisdiction) [2000] 2 FLR 512. THE NEED FOR COURT INVOLVEMENT 3. Case - law has established two categories of case that will in virtually all cases require the prior sanction of a High Court judge. The first is sterilisation of a person (whether a child or an adult) who cannot consent to the operation: Re B. (A Minor) (Wardship: Sterilisation) [1988] AC 199 and Re F. (Mental Patient: Sterilisation) [1990] 2 AC 1. The second is the discontinuance of artificial nutrition and hydration for a patient in a vegetative state: Airedale NHS Trust v. Bland [1993] AC 789, 805. Further guidance about sterilisation and vegetative state cases is given below. In all other cases, doctors and carers should seek advice from their own lawyers about the need to apply to the court. In the Official Solicitor ’ s view, applications should be made where there are disputes or difficulties as to either the patient ’ s capacity or the patient ’ s best interests. Guidelines were handed down by the Court of Appeal in St George ’ s Healthcare NHS Trust v. S. ; R. v. Collins and Others, ex parte S. [1998] 2 FLR 728, 758-760. It was stressed in that case that a declaration made without notice would be ineffective and ought not to be made. ... THE EVIDENCE 7. The claimant must adduce evidence going to both capacity and best interests. (i) Capacity The court has no jurisdiction unless it is established that the patient is incapable of making a decision about the matter in issue. The test of capacity to consent to or refuse treatment is set out in Re M. B. (Medical Treatment) [1997] 2 FLR 426, 437. ... (ii) Best interests In any medical case, the claimant must adduce evidence from a responsible medical practitioner not only (1) that performing the particular operation would not be negligent but also (2) that it is necessary in the best interests of the patient: Re A. (Male Sterilisation) [2000] 1 FLR 549, 555. The court ’ s jurisdiction is to declare the best interests of the patient on the application of a welfare test analogous to that applied in wardship: Re S. (Sterilisation: Patient ’ s Best Interests) [2000] 2 FLR 389, 403. The judicial decision will incorporate broader ethical, social, moral and welfare considerations (ibid. , 401). Emotional, psychological and social benefit to the patient will be considered: Re Y. (Mental Patient: Bone Marrow Transplant) [1997] Fam 110. The court will wish to prepare a balance sheet listing the advantages and disadvantages of the procedure for the patient. If potential advantages and disadvantages are to be relied on then the court will wish to assess in percentage terms the likelihood of them in fact occurring: Re A. (Male Sterilisation) [2000] 1 FLR 549, 560. ” 74. A practice direction (issued by the High Court with the approval of the Lord Chief Justice and the Lord Chancellor on 14 December 2001 and entitled “ Declaratory proceedings: incapacitated adults”) pointed out that proceedings which involved its jurisdiction to grant declarations as to the best interests of incapacitated adults were more suited to the Family Division and that the note detailed in the preceding paragraph provided valuable guidance in relation to such proceedings and “should be followed”. F. Proposed legislative reform 75. Further to the publication (in December 2000) of a White Paper on reforming the mental health legislation, a draft Mental Health Bill and a consultation paper were published in June 2002. The objective of the bill, as described in the consultation paper, was twofold: to provide a legal structure for requiring mentally disordered persons to submit to compulsory treatment without necessarily requiring them to be detained in hospital and bringing the law more closely into line with modern human rights law (notably the case - law of the European Convention on Human Rights). Part 5 of the bill (sections 121-39) was entitled “Informal treatment of patients not capable of consenting” and provided for specific safeguards for qualifying patients. 76. Steps were also taken towards developing legislation on the broader question of incapacity. Having published a consultation paper in December 1997 entitled “Making decisions on behalf of mentally incapacitated adults”, the Government published its proposals in October 1999. It was proposed that legislation provide for a general authority enabling a person acting reasonably to make decisions on behalf of an incapacitated person and in the incapacitated person ’ s best interests. The general authority would extend to decisions about care and welfare, including medical decisions. 77. Subsequently, a Mental Capacity Bill was introduced in the House of Commons on 17 June 2004. On the assumption that additional safeguards for the care of incapacitated patients would be most appropriately included in legislation on capacity rather than on mental health, this bill provides for a detailed statutory framework to empower and protect vulnerable people incapable of making their own decisions and for safeguards not currently available under the common law. 78. In particular, the Mental Capacity Bill sets out in statutory form a number of common- law principles, including that everything done must be in the best interests of the patient and in a manner least restrictive of the patient ’ s rights. It sets down detailed tests for the assessment of capacity and best interests. The bill creates new mechanisms for the appointment, where appropriate, of a designated decision- maker to act on behalf of an incapacitated patient and to be consulted on any decision made: either a lasting power of attorney (which allows the appointment of someone to act on one ’ s behalf in the case of future loss of capacity) or a court- appointed deputy (who can make decisions on welfare, health care and financial matters as determined by the court). Two new public bodies are also proposed by the bill to support the statutory framework: a new court of protection (for dispute resolution on matters such as capacity and best interests) and a public guardian (a registered authority with supervisory responsibilities as regards the designated decision- makers described above). The bill also provides for the input of an independent consultee ( for a person lacking capacity who has no one who can be consulted about his or her best interests), allows individuals to make an “advance decision” to refuse treatment should they lose capacity in the future and creates a new criminal offence of “ ill-treatment or neglect of a person lacking capacity ”. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 79. The applicant ’ s complaints under this provision concerned his time in the hospital as an “informal patient” between 22 July and 29 October 1997, which he maintained amounted to a “deprivation of liberty” within the meaning of Article 5 § 1 of the Convention. He asserted that that detention was neither “in accordance with a procedure prescribed by law” nor “lawful” because he was not of unsound mind; the doctrine of necessity did not reflect the criteria for a valid detention under Article 5 § 1 (e) and lacked precision; and there were insufficient safeguards against arbitrary detention on grounds of necessity. He added that he remained of sound mind during his subsequent detention under the 1983 Act ( from 29 October to 12 December 1997 ). The relevant parts of Article 5 § 1 of the Convention provide : “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (e) the lawful detention ... of persons of unsound mind ...; ... ” A. Whether the applicant was “deprived of his liberty” from 22 July to 29 October 1997 1. The parties ’ submissions 80. The Government explained that acceptance by the Court that the applicant was “detained” would run counter to the long-held wish of the United Kingdom to avoid the formal statutory procedures of compulsory psychiatric committal for incapacitated patients unless absolutely necessary, the informality, proportionality and flexibility of the common - law doctrines being considered distinctly preferable. A finding that the present applicant was “detained” would mean that the care of incapacitated but compliant persons elsewhere (even in a private house or nursing home) would be considered detention, a conclusion which would have onerous legal and other implications for such patients and for any person or organisation having responsibility for their care and welfare. In addition, a person already suffering from a socially difficult illness must not unnecessarily suffer the additional stigma of being “sectioned”. Accordingly, just as incapacitated persons requiring medical treatment could be admitted and treated in hospital informally in their best interests, so too should incapacitated persons requiring psychiatric treatment. Moreover, consensual non-imposed treatment was considered more likely to attract a degree of cooperation from the patient and to be therefore more beneficial therapeutically. Furthermore, informal admission and treatment in an incapacitated patient ’ s best interests meant that that person was treated with the required dignity. These considerations explained the provisions of the new draft Mental Health Bill (paragraphs 75-77 above). The Government therefore hoped that the Court ’ s judgment would be consistent with these policy aims and would not require States to apply the full rigour of a statutory regime of involuntary committal to all incapacitated patients requiring psychiatric treatment. 81. As a further preliminary submission, the Government considered that the case should be examined on the basis of a presumption that all professionals involved with the care of the applicant acted in good faith and in what they considered to be his best interests in circumstances where he could not act for himself and was totally dependent. 82. Turning specifically to whether the applicant was “detained”, the Government relied on the test outlined in Ashingdane v. the United Kingdom (judgment of 28 May 1985, Series A no. 93, p. 19, § 41). The House of Lords had applied this test to resolve the essential question of fact, finding that the applicant had not been “detained”, and the Court should not go back on such domestic findings of fact. 83. Applying this test, the Government reasoned that, if one took the case of a person who plainly had the capacity to consent to psychiatric treatment, the regime in the hospital was clearly one which did not amount to a deprivation of liberty. The regime applied to the applicant was not materially different and could not be considered to amount to a deprivation of liberty simply because he lacked capacity. In any event, the applicant did not object to being in hospital. While he might have been detained if he had attempted to leave hospital, an intention to detain someone in the future does not amount to detention for the purposes of Article 5. Indeed, since the lucidity of an individual with a psychiatric disorder might vary over time, one could not base a finding of detention merely on a mental state if the underlying regime remained the same. Further, whether the applicant was in the carers ’ home or in the hospital was not, in itself, relevant to the determination of whether there had been a deprivation of liberty, since it was the nature of the restrictions that was relevant. Those restrictions did not amount to involuntary detention but rather to necessary and proper care for someone with the applicant ’ s needs. 84. The Government relied on Nielsen v. Denmark (judgment of 28 November 1988, Series A no. 144) and H.M. v. Switzerland (no. 39187/98, § 48, ECHR 2002- II). As in Nielsen, the hospital remained responsible for the applicant ’ s treatment and, in particular, was obliged to take decisions in his best interests and on his behalf even after his trial discharge to his carers in 1994. H.M. v. Switzerland was, in their view, the most recent expression by the Court of its opinion on the question of whether or not a person could be considered to have been “detained” in circumstances where he or she was unable to express clearly whether or not they wished to be in the relevant institution. 85. In the Government ’ s opinion, none of the factors to which the applicant referred amounted, alone or together, to a deprivation of liberty. As to the doors of the relevant unit being locked, the Government noted that this allegation could have been, but was not, made in the domestic proceedings and the Court should not be required to resolve such a disputed fact. In any event, the Government noted the affidavit evidence of Dr M. ( see paragraph 41 above) and the finding by Lord Goff ( see paragraph 4 2 above) that the doors were unlocked, together with the failure by the Commissioner to come to any conclusion on this point. Indeed, this factor needed to be carefully approached in the context of mentally disordered patients incapable of looking after themselves as their care might inevitably include locking doors temporarily as a precaution, in order to prevent them from harming themselves. In addition, there was some evidence that the applicant had not been denied access to his carers as he alleged. 86. The applicant maintained that the Convention notion of detention was more flexible than that of the House of Lords and included notions of psychological detention, potential detention (perceived threat of restraint) and the removal of the means of escape. He also agreed that the Ashingdane test had to be applied in order to determine in a specific case whether a person had been detained so that the type, duration, effects and manner of implementation of the measure in question had to be examined. As to the type of detention, the hospital was an authorised “detaining institution”, the conditions of which were to be distinguished from those of his home with his carers. As to the duration, he was detained for four months and twenty-one days for assessment whereas an involuntary admission for assessment under section 2 of the 1983 Act is for a maximum of twenty-eight days and for treatment under section 3 of the 19 83 Act is for a maximum of six months. The effect on the applicant of his stay in the hospital was a marked deterioration in his well-being. As to the manner of implementation, the applicant maintained (as did Lord Steyn in the House of Lords – see paragraph 4 6 above) that, for a number of reasons detailed by him, the idea that he was free to leave was a “fairy tale”. 87. Accordingly, he considered the question of whether the doors of the relevant unit had been locked not to be, in itself, determinative of whether he had been deprived of his liberty within the meaning of Article 5 § 1 of the Convention. However, he continued to maintain as a matter of fact that the doors had been locked and explained why he had not challenged the hospital ’ s evidence on this point in the domestic proceedings. Once he raised the point before the Commissioner, the evidence was to the effect that the doors had been locked for most of the time. 88. He maintained that Nielsen (cited above) was distinguishable because the applicant in that case was a minor who had been admitted on the basis of parental consent and detained for as long as consent lasted (type of measure). He was not medicated and was able to visit and be visited (manner of implementation). H.M. v. Switzerland (cited above) was also distinguishable: in that case, the applicant was in a terrible state before admission and improved thereafter to the extent that she agreed to stay in the institution (effect of the measure). The relevant foster home was an open institution, H.M. had freedom of movement (indeed, her freedom of movement was enhanced by the care in the institution) and she could maintain contact with the outside world (manner of implementation). While the applicants ’ situation in Nielsen and H.M. v. Switzerland fell short of “detention” by reference to the Ashingdane criteria, his own regime fell within that category. 2. The Court ’ s assessment 89. It is not disputed that in order to determine whether there has been a deprivation of liberty, the starting-point must be the concrete situation of the individual concerned and account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question. The distinction between a deprivation of, and a restriction upon, liberty is merely one of degree or intensity and not one of nature or substance ( see Guzzardi v. Italy, judgment of 6 November 1980, Series A no. 39, p. 33, § 92, and Ashingdane, cited above, p. 19, § 41). 90. The Court observes that the High Court and the majority of the House of Lords found that the applicant had not been detained during this period, while the Court of Appeal and a minority of the House of Lords found that he had. Although this Court will have regard to the domestic courts ’ related findings of fact, it does not consider itself bound by their legal conclusions as to whether the applicant was detained or not, not least because the House of Lords considered the question from the point of view of the tort of false imprisonment (see paragraph 39 above) rather than the Convention concept of “deprivation of liberty” in Article 5 § 1, the criteria for assessing those domestic and Convention issues being different. In this latter respect, considerable emphasis was placed by the domestic courts, and by the Government, on the fact that the applicant was compliant and never attempted, or expressed the wish, to leave. The majority of the House of Lords specifically distinguished actual restraint of a person (which would amount to false imprisonment) and restraint which was conditional upon his seeking to leave (which would not constitute false imprisonment). The Court does not consider such a distinction to be of central importance under the Convention. Nor, for the same reason, can the Court accept as determinative the fact relied on by the Government that the regime applied to the applicant (as a compliant incapacitated patient) did not materially differ from that applied to a person who had the capacity to consent to hospital treatment, neither objecting to their admission to hospital. The Court reiterates that the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention ( see De Wilde, Ooms and Versyp v. Belgium, judgment of 18 June 1971, Series A no. 12, p. 36, §§ 64-65), especially when it is not disputed that that person is legally incapable of consenting to, or disagreeing with, the proposed action. 91. Turning therefore to the concrete situation, as required by Ashingdane, the Court considers the key factor in the present case to be that the health care professionals treating and managing the applicant exercised complete and effective control over his care and movements from 22 July 1997, when he presented acute behavioural problems, to 29 October 1997, when he was compulsorily detained. More particularly, the applicant had been living with his carers for over three years. On 22 July 1997, following a further incident of violent behaviour and self-harm at his day-care centre, the applicant was sedated before being brought to the hospital and subsequently to the IBU, in the latter case supported by two persons. His responsible medical officer (Dr M. ) indicated clearly that, had the applicant resisted admission or subsequently tried to leave, she would have prevented him from doing so and would have considered his involuntarily committal under section 3 of the 1983 Act ( see paragraphs 12, 13 and 4 1 above). Indeed, as soon as the Court of Appeal indicated that his appeal would be allowed, he was compulsorily detained under the 1983 Act. The correspondence between the applicant ’ s carers and Dr M. ( see paragraphs 23-30 above) reflects both the carers ’ wish to have the applicant immediately released to their care and, equally, the clear intention of Dr M. and the other relevant health care professionals to exercise strict control over his assessment, treatment, contacts and, notably, movement and residence; the applicant would only be released from the hospital to the care of Mr and Mrs E. as and when those professionals considered it appropriate. While the Government suggested that “there was some evidence” that the applicant had not been denied access to his carers, it is clear from the above-noted correspondence that the applicant ’ s contact with his carers was directed and controlled by the hospital, his carers not visiting him after his admission until 2 November 1997 Accordingly, the concrete situation was that the applicant was under continuous supervision and control and was not free to leave. Any suggestion to the contrary is, in the Court ’ s view, fairly described by Lord Steyn as “stretching credulity to breaking point” and as a “fairy tale” ( see paragraph 46 above). 92. The Court would therefore agree with the applicant that it is not determinative whether the ward was “locked” or “lockable” (the evidence before the House of Lords and the Commissioner appearing to differ on this point ). In this regard, it notes that the applicant in Ashingdane was considered to have been “detained” for the purposes of Article 5 § 1 (e) even during a period when he was in an open ward with regular unescorted access to the unsecured hospital grounds and the possibility of unescorted leave outside the hospital ( pp. 13-14, § 24, and pp. 19-20, § 42 ). 93. Considerable reliance was placed by the Government on H. M. v. Switzerland ( cited above ), in which it was held that the placing of an elderly applicant in a foster home, to ensure necessary medical care as well as satisfactory living conditions and hygiene, did not amount to a deprivation of liberty within the meaning of Article 5 of the Convention. However, each case has to be decided on its own particular “range of factors” and, while there may be similarities between the present case and H. M. v. Switzerland, there are also distinguishing features. In particular, it was not established that H.M. was legally incapable of expressing a view on her position. She had often stated that she was willing to enter the nursing home and, within weeks of being there, she had agreed to stay. This, combined with a regime entirely different to that applied to the present applicant (the foster home was an open institution which allowed freedom of movement and encouraged contact with the outside world), leads to the conclusion that the facts in H.M. v. Switzerland were not of a “degree” or “intensity” sufficiently serious to justify the finding that she was detained (see Guzzardi, cited above, p. 33, § 93). The Court also finds a conclusion that the present applicant was detained consistent with Nielsen (cited above), on which the Government also relied. That case turned on the specific fact that the mother had committed the applicant minor to an institution in the exercise of her parental rights ( see Nielsen, pp. 23-24, § 63, and pp. 24-25, § 68), pursuant to which rights she could have removed the applicant from the institution at any time. Although the Government noted that the hospital retained responsibility for the present applicant following his release in 1994, the fact that the hospital had to rely on the doctrine of necessity and, subsequently, on the involuntary detention provisions of the 1983 Act demonstrates that the hospital did not have legal authority to act on the applicant ’ s behalf in the same way as Jon Nielsen ’ s mother. 94. The Court therefore concludes that the applicant was “deprived of his liberty” within the meaning of Article 5 § 1 of the Convention from 22 July 1997 to 29 October 1997. B. Whether the detention was “in accordance with a procedure prescribed by law” and “lawful” within the meaning of Article 5 § 1 (e) 1. Whether the applicant was of unsound mind (a) The parties ’ submissions 95. The Government observed that the applicant had been detained in his best interests for psychiatric assessment and treatment on the basis of the common - law doctrine of necessity. This was unanimously established by the House of Lords, which finding should not be reviewed by the Court. 96. The Government pointed out that it was common ground during the domestic proceedings that the applicant was of unsound mind and required detention for treatment until he could be released to his carers, and it was not for the Court, given its subsidiary function, to substitute its own judgment for that of the medical experts but rather to ensure that those expert opinions had an objective and reliable basis. There was no reason why the domestic courts could not have reviewed whether the facts of the case justified detention, a review which could have included an examination of whether what was done in the interests of the applicant had been reasonably done. The Government did not accept that the Commissioner ’ s conclusion amounted to a finding, as claimed by the applicant, that he was not of “unsound mind”; there was no express finding to that effect and such a conclusion could not be drawn from the contents of his report. 97. The applicant maintained that there was no legal basis for his detention because, while he may have been suffering from a mental disorder on 22 July 1997 and the circumstances that led to his being taken to the hospital on that day amounted to an emergency, his mental disorder was not of such a nature or degree as to justify his subsequent admission to the hospital ’ s IBU or, alternatively, it ceased to be of such a degree shortly thereafter. Since there was no domestic court examination of whether he was of unsound mind within the meaning of Article 5 § 1 (e) and Winterwerp v. the Netherlands ( judgment of 24 October 1979, Series A no. 33), the State could not discharge its burden of proof and establish that there was a legal basis for his detention. In this respect, he pointed out that, while the domestic courts might have concluded that the hospital had acted in good faith and reasonably in his best interests, and while the Commissioner may not have found that the hospital acted irresponsibly or maliciously, the Commissioner found it difficult to understand why the applicant had not been released to his carers on 22 July 1997 or at least the following day. The Court was not being requested to overturn the findings of the domestic courts but rather to prefer the conclusion of the Commissioner as the only body to have made findings on the applicant ’ s state of mind after a proper assessment of the evidence. (b) The Court ’ s assessment 98. The Court reiterates that an individual cannot be deprived of his liberty on the basis of unsoundness of mind unless three minimum conditions are satisfied: he must reliably be shown to be of unsound mind; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement depends upon the persistence of such a disorder (see Winterwerp, cited above, pp. 17-18, § 39; Luberti v. Italy, judgment of 23 February 1984, Series A no. 75, pp. 12-13, § 27; Johnson v. the United Kingdom, judgment of 24 October 1997, Reports of Judgments and Decisions 1997 ‑ VII, p. 2419, § 60; and Hutchison Reid v. the United Kingdom, no. 50272/99, § 4 8, ECHR 2003- IV). The national authorities have a certain margin of appreciation regarding the merits of clinical diagnoses since it is in the first place for them to evaluate the evidence in a particular case: the Court ’ s task is to review under the Convention the decisions of those authorities ( see Luberti and Winterwerp, cited above, pp. 12-13, § 27, and p. 18, § 40, respectively). 99. In this connection, the Court notes that the applicant has not suggested that the relevant health care professionals acted other than in good faith, responsibly and in what they considered to be his best interests. He had had a long history of serious behavioural problems and special care requirements, and had been treated in the hospital for over thirty years following which he was discharged in 1994 on a trial basis only. There is evidence of increasingly difficult behavioural problems before July 1997 ( see paragraphs 13, 14 and 39 above). It was not disputed that the applicant was suffering from a mental disorder on 22 July 1997, that he was agitated, self-harming and controllable with sedation only while in the day-care centre or that he had given rise to an emergency situation on that day. Having regard to the detailed consideration of the matter by Dr M. (who had cared for the applicant since 1977) and by the other health care professionals on that day (see paragraphs 1 2, 13 and 39 above) together with the day-care centre ’ s report ( see paragraph 14), the Court considers that there is adequate evidence justifying the initial decision to detain the applicant on 22 July 1997. Thereafter, Dr M. ’ s correspondence with Mr and Mrs E. is demonstrative of a detailed assessment of the applicant and the consistent clinical view, maintained throughout the relevant period, of Dr M. and other health care professionals involved that the applicant required admission for such assessment and treatment. Dr G. was briefed by the applicant ’ s carers and he expressed the same view in his report of August 1997. On the basis of the material before them, the judges of the House of Lords were unanimous in finding his detention to be justified on the grounds of necessity in his best interests. Lord Goff relied on the above -mentioned affidavit of Dr M. in which she opined that the applicant required admission for assessment and treatment and would have been considered for involuntary committal under the 1983 Act if he had tried to leave ( see paragraphs 39 -4 1 above). As noted above, once the possibility of his leaving arose in October 1997, the formal procedures for his committal were put in place (section 5(2) of the 1983 Act) followed by a committal under section 3 of that Act, which latter procedure required two medical certificates attesting to the necessity of his committal for treatment for a mental disorder ( see paragraph 54 above). Finally, the fact that he was, in the report dated 27 November 1997, found to be suffering from a mental impairment which no longer warranted confinement clearly does not undermine the validity of the prior assessments to the contrary. Indeed, following this first independent clinical indication that detention was no longer warranted, the applicant was released. 100. Given the above, the Court considers that the Commissioner ’ s later and differing view as to the necessity for the applicant ’ s detention provides limited support to the applicant. The Commissioner was not competent to review clinical decisions ( see paragraphs 5 5 -5 6 above), his examination covered welfare and social concerns broader than the strict clinical diagnoses and his principal concerns related to perceived delays in assessing the applicant in the hospital, the possibility of his being assessed at home and the manner in which the relationship with his carers had been handled by the hospital. 101. In such circumstances and on the material before it, the Court finds that the applicant has been reliably shown to have been suffering from a mental disorder of a kind or degree warranting compulsory confinement which persisted during his detention between 22 July and 5 December 1997. 2. Lawfulness and protection against arbitrary detention (a) The Government ’ s submissions 102. Noting that the House of Lords had unanimously accepted that the applicant had been detained in his best interests for psychiatric assessment and treatment on the basis of the doctrine of necessity, the Government argued that the doctrine of necessity was sufficiently precise and its consequences adequately foreseeable as to constitute “law” within the meaning of the Convention. 103. In the first place, they argued that the Court had accepted that it was impossible, especially in a common-law system, for there to be absolute certainty in the formulation and application of certain rules of law. It had also been accepted that unwritten law, so long as it was sufficiently precise, could satisfy the requirements of Article 5 § 1 of the Convention. Indeed, the Government observed that the common law had the benefit of flexibility and evolution, so the fact that the Court of Appeal applied the doctrine of necessity in a particular way after the applicant ’ s detention did not mean that it would not have done so earlier if requested. It would be wrong therefore to characterise the doctrine of necessity (and notions of best interests, necessity and reasonableness) as too uncertain for the purposes of the lawfulness requirement of Article 5 § 1, not least because similar notions are used in many States ’ systems and in the Convention system itself. 104. Secondly, the Government maintained that the doctrine of necessity was a well - established doctrine reaching as far back as the eighteenth century, and its precision was demonstrated by the thorough and authoritative examination in 1990 ( see Re F. (Mental Patient: Sterilisation), cited above ) and by its subsequent application prior to and in the present case. In particular, the doctrine of necessity required the establishment of: a lack of capacity; the best interests of the patient (such interests being long-recognised as including considerations wider than the strictly medical, such as ethical, social, moral and welfare needs – see Re F. (Adult: Court ’ s Jurisdiction), cited above, and the practice note and direction of May 2001, paragraphs 59-61 and 73-74 above); and that the proposed action was an objectively reasonable step to take. Professionals had to act in strict accordance with their common - law duty of care (Lord Nolan, paragraph 4 4 above). 105. As to the applicant ’ s submission concerning a conflict between the position outlined in R. - B. (A Patient) v. Official Solicitor, sub nom Re A. (Male Sterilisation) and paragraph 15.21 of the Mental Health Act Code of Practice 1999 ( see paragraphs 62 and 72 above), the Government pointed out that the Code amounted to guidance, it did not purport to be an authoritative statement of the law and it was open to anyone to obtain a court decision as to whether the Code provisions were accurate or not. In addition, there was no need for a definition of “compliant”, as suggested by the applicant, as it was a word of ordinary usage. Moreover, the Government considered that the Court of Appeal ’ s decision in Re F. (Adult: Court ’ s Jurisdiction) ( cited above ) did not break new ground in the High Court ’ s “best interests” declaratory powers but simply applied the House of Lords ’ decision in the present case. 106. The Government were further of the view that it was not relevant whether, as the applicant submitted, the doctrine of necessity extended beyond the treatment of those with a mental disorder; what was important was that it reflected in substance the Winterwerp criteria for lawful detention under Article 5 § 1 (e) ( see paragraph 98 above) as it was only where a mental disorder was considered to be of a nature sufficiently serious to warrant hospital treatment that a doctor could have reasonably concluded that the person was to be retained in hospital for treatment on grounds of necessity. 107. Finally, they considered that there was no risk of arbitrary detention because of the availability of judicial review (combined with a writ of habeas corpus), which action would require the authorities to demonstrate that the facts justified the detention under the doctrine of necessity (see the Government ’ s submissions under Article 5 § 4, paragraphs 126-30 below). In this manner, the doctrine of necessity could be considered to incorporate adequate judicial guarantees and safeguards. (b) The applicant ’ s submissions 108. The applicant mainly argued that at the relevant time the concepts of “best interests” and “necessity” were imprecise and unforeseeable. 109. As to the breadth of the test of best interests, he maintained that the case-law at the time of his detention ( see Bolam v. Friern Hospital Management Committee and Re F. (Mental Patient: Sterilisation ), cited above ) indicated that the question of a patient ’ s best interests was a purely clinical one to be judged by a narrow “not negligent” test. This test came under much criticism from, among others, the Law Commission, which led to a consultation paper which was, in turn, adopted by the government in large part in its Green Paper “Making decisions” in October 1999. The proposals therein were not put into effect in legislation and the test was not expanded until R. -B. (A Patient) v. Official Solicitor, sub nom Re A. (Male Patient: Sterilisation ) ( cited above ), when the Court of Appeal ruled that the concept of best interests required compliance with two duties: not to act negligently (to act in accordance with a practice accepted at the time by a reasonable body of medical opinion skilled in the particular form of treatment in question – the “ Bolam ” test), and a separate duty to act in the individual ’ s best interests. The applicant pointed out that paragraph 15.21 of the later Mental Health Act Code of Practice 1999 contradicted this case-law development, thus rendering even more complex the already difficult “best interests” assessment. 110. As to the extent of the High Court ’ s jurisdiction, the applicant noted that it was not until Re F. (Adult: Court ’ s jurisdiction) (cited above), that it was established that the courts ’ jurisdiction in this area was more analogous to a wardship jurisdiction (and therefore capable of addressing long-term and broader welfare questions, such as residence and contacts of incapacitated adults) as opposed to a narrower declaratory jurisdiction (whether a course of action would be criminal or tortious and essentially covering lawfulness questions only). 111. The applicant also criticised the lack of precision in the law resulting from the absence of any definition of the term “compliance”. This was important given that “compliance” determined whether treatment would be given under the doctrine of necessity or under the 1983 Act. 112. The applicant further maintained that the elements of the doctrine of necessity, even if foreseeable, did not equate with the criteria for lawful detention under Article 5 § 1 (e) developed in Winterwerp ( cited above, pp. 17-18, § 39) and compared unfavourably with the criteria for involuntary psychiatric committal outlined in section 3 of the 1983 Act. He suggested that it was possible for a person to be detained under the doctrine of necessity without an examination of whether he or she had been reliably shown by objective medical expertise to be suffering from a mental disorder of a kind or degree warranting compulsory confinement. 113. Finally, the applicant contended that the doctrine of necessity did not contain sufficient safeguards against arbitrary or mistaken detention and submitted that this was a particularly serious deficiency when the underlying criteria for the deprivation of liberty were themselves imprecise and unforeseeable, when the law bestowed – through that lack of precision – a wide discretionary power and when the person in question was vulnerable. ( c ) The relevant principles 114. The Court reiterates that the lawfulness of detention depends on conformity with the procedural and the substantive aspects of domestic law, the term “lawful” overlapping to a certain extent with the general requirement in Article 5 § 1 to observe a “procedure prescribed by law” ( see Winterwerp, cited above, pp. 17-18, § 39). Further, given the importance of personal liberty, the relevant national law must meet the standard of “lawfulness” set by the Convention which requires that all law be sufficiently precise to allow the citizen – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action might entail ( see S.W. v. the United Kingdom, judgment of 22 November 1995, Series A no. 335-B, pp. 41-42, §§ 35- 36; Steel and Others v. the United Kingdom, judgment of 23 September 1998, Reports 1998- VII, p. 2735, § 54; and Kawka v. Poland, no. 25874/94, § 49, 9 January 2001). The Court has outlined above ( see paragraph 98) the three minimum conditions for the lawful detention of an individual on the basis of unsoundness of mind of Article 5 § 1 (e) of the Convention. 115. Lastly, the Court reiterates that it must be established that the detention was in conformity with the essential objective of Article 5 § 1 of the Convention, which is to prevent individuals being deprived of their liberty in an arbitrary fashion (see, among many authorities, Wassink v. the Netherlands, judgment of 27 September 1990, Series A no. 185-A, p. 11, § 24, and, more recently, Assanidze v. Georgia [GC], no. 71503/01, § 170, ECHR 2004 ‑ II ). This objective, and the broader condition that detention be “in accordance with a procedure prescribed by law”, require the existence in domestic law of adequate legal protections and “fair and proper procedures” ( see Winterwerp, cited above, pp. 19-20, § 45, and Amuur v. France, judgment of 25 June 1996, Reports 1996 ‑ III, pp. 851-52, § 53). (d) The Court ’ s assessment 116. The Court considers it clear that the domestic legal basis for the applicant ’ s detention between 22 July and 29 October 1997 was the common - law doctrine of necessity: the House of Lords may have differed on whether his admission and stay in hospital amounted to detention, but it was unanimous in finding that he had been admitted to hospital pursuant to that doctrine. In addition, the Court considers that, when the doctrine of necessity was applied in the area of mental health, it accommodated the minimum conditions for the lawful detention of those of unsound mind outlined in paragraph 98 above. 117. In this connection, the Court has noted that as early as 1772 the common law permitted detention of those who were a potential danger to themselves in so far as this was shown to be necessary. In the early 1990s necessity was the recognised legal basis for the consideration of authorisations for certain medical treatment (sterilisation and artificial nutrition and hydration) of incapacitated individuals ( see paragraph 57 above). Re S. (Hospital Patient: Court ’ s Jurisdiction) and Re S. (Hospital Patient: Foreign Curator) together with Re C. (Mental Patient: Contact), reported in 1993 and 1996, resulted in declarations being made as to the best interests of incapacitated individuals pursuant to the doctrine of necessity where there was a conflict over certain welfare issues (see, in particular, the judgment of Lady Justice Butler-Sloss in Re F. (Adult: Court ’ s Jurisdiction ), paragraphs 59 -61 above). In addition, all the judges of the House of Lords in the present case relied on Re F. (Mental Patient: Sterilisation) in unanimously concluding that the admission and treatment of an incapacitated compliant patient could be justified on the basis of the doctrine of necessity. Lord Goff, delivering the main judgment, had “no doubt” about this conclusion. Moreover, all counsel before the House of Lords were in agreement as to the precise elements of the doctrine of necessity to be applied (Lord Steyn, paragraph 47 above). These were “simply ” that : ( i ) there must be a necessity to act when it is not practicable to communicate with the assisted person, and (ii) that the action taken must be such as a reasonable person would in all circumstances take, acting in the best interests of the assisted person. Furthermore, as is clear from the statistics provided by the Mental Health Act Commission to the House of Lords, the applicant was one of thousands of compliant incapacitated patients detained each year on the basis of the doctrine of necessity. Finally, the Court does not consider that the lack of a definition of “compliant ” rendered the applicant ’ s detention unforeseeable: the majority of the House of Lords expressed no particular difficulty in applying the notion of compliance in the present case. 118. It is true that, at the time of the applicant ’ s detention, the doctrine of necessity and, in particular, the “best interests” test were still developing. Clinical assessments of best interests began to be subjected to a double test (the Bolam “not negligent” test together with a separate duty to act in a patient ’ s best interests). Broader welfare matters were also introduced in the “best interests” assessment ( see Re F. (Adult: Court ’ s Jurisdiction) and R. ‑ B. (A Patient) v. Official Solicitor, sub nom Re A. (Male Sterilisation) – paragraphs 59-62 above). It is therefore true that each element of the doctrine might not have been fully defined in 1997. This is reflected in, for example, the conflict between the views of Lady Justice Butler-Sloss in R. ‑ B. (A Patient), cited above, and paragraph 15.21 of the Mental Health Act Code of Practice 1999 (see paragraphs 62 and 72 above). 119. Whether or not the above allows the conclusion that the applicant could, with appropriate advice, have reasonably foreseen his detention on the basis of the doctrine of necessity ( see The Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, pp. 31-33, §§ 49 and 52), the Court considers that the further element of lawfulness, the aim of avoiding arbitrariness, has not been satisfied. 120. In this latter respect, the Court finds striking the lack of any fixed procedural rules by which the admission and detention of compliant incapacitated persons is conducted. The contrast between this dearth of regulation and the extensive network of safeguards applicable to psychiatric committals covered by the 1983 Act ( see paragraphs 36 and 54 above) is, in the Court ’ s view, significant. In particular and most obviously, the Court notes the lack of any formalised admission procedures which indicate who can propose admission, for what reasons and on the basis of what kind of medical and other assessments and conclusions. There is no requirement to fix the exact purpose of admission ( for example, for assessment or for treatment) and, consistently, no limits in terms of time, treatment or care attach to that admission. Nor is there any specific provision requiring a continuing clinical assessment of the persistence of a disorder warranting detention. The appointment of a representative of a patient who could make certain objections and applications on his or her behalf is a procedural protection accorded to those committed involuntarily under the 1983 Act and which would be of equal importance for patients who are legally incapacitated and have, as in the present case, extremely limited communication abilities. 121. The Court observes that, as a result of the lack of procedural regulation and limits, the hospital ’ s health care professionals assumed full control of the liberty and treatment of a vulnerable incapacitated individual solely on the basis of their own clinical assessments completed as and when they considered fit: as Lord Steyn remarked, this left “effective and unqualified control” in their hands. While the Court does not question the good faith of those professionals or that they acted in what they considered to be the applicant ’ s best interests, the very purpose of procedural safeguards is to protect individuals against any “misjudgments and professional lapses” (Lord Steyn, paragraph 49 above). 122. The Court notes, on the one hand, the concerns regarding the lack of regulation in this area expressed by Lord Steyn ( see paragraph 47 above), Lady Justice Butler-Sloss ( see paragraph 61 above) and the Law Commission in 1995 ( see paragraphs 66-68 above ). On the other hand, it has also noted the Government ’ s understandable concern (outlined in paragraph 80 above) to avoid the full, formal and inflexible impact of the 1983 Act. However, the current reform proposals set out to answer the above-mentioned concerns of the Government while at the same time making provision for detailed procedural regulation of the detention of incapacitated individuals (see, in particular, the Mental Capacity Bill described in paragraphs 77-78 above). 123. The Government ’ s submission that detention could not be arbitrary within the meaning of Article 5 § 1 because of the possibility of a later review of its lawfulness disregards the distinctive and cumulative protections offered by paragraphs 1 and 4 of Article 5; the former strictly regulates the circumstances in which one ’ s liberty can be taken away, whereas the latter requires a review of its legality thereafter. 124. The Court therefore finds that this absence of procedural safeguards fails to protect against arbitrary deprivations of liberty on grounds of necessity and, consequently, to comply with the essential purpose of Article 5 § 1. On this basis, the Court finds that there has been a violation of Article 5 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 125. The applicant complained that the procedures available to him as an informal patient for the review of the legality of his detention (judicial review combined with a writ of habeas corpus) did not comply with the requirements of Article 5 § 4 of the Convention, which provision reads as follows: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. The parties ’ submissions 126. The Government considered this submission to be incorrect. An action in judicial review ( combined with a writ of habeas corpus) allowed an assessment of the essential conditions (within the meaning of Winterwerp and Article 5 § 1 (e) of the Convention) bearing on the lawfulness of his detention. 127. In particular, those domestic proceedings were sufficiently flexible to allow the court to examine the objective medical evidence to establish whether the Winterwerp conditions had been met. Relying on domestic jurisprudence which in turn relied on the judgment of the Court of Appeal in Reg. v. the Ministry of Defence, ex parte Smith ([1996] Queen ’ s Bench Reports 517), the Government argued that at the relevant time the courts could have interfered with an executive decision where they were satisfied that the decision was unreasonable in the sense that it was beyond the range of responses open to a reasonable decision- maker. The human rights context was important and the more substantial the interference with human rights, the more the court would require by way of justification before it would find the interference to be reasonable (the “ super-Wednesbury ” test). The flexibility of judicial review was demonstrated, in particular, by the significant developments immediately prior to the Human Rights Act 1998 and since incorporation (as demonstrated by cases concerning the compulsory treatment of patients, including R. (Wilkinson) v. Broadmoor Special Hospital Authority, cited above ). These developments were, in the Government ’ s opinion, not so much a result of incorporation as of flexibility of the common law and its procedures. 128. While judicial review may not have allowed the courts to substitute their views for the clinical expert views expressed, the Government noted that Article 5 § 4 did not require this ( see E. v. Norway, judgment of 29 August 1990, Series A no. 181-A). The Court ’ s judgment in X v. the United Kingdom (judgment of 5 November 1981, Series A no. 46) could, according to the Government, be distinguished in that the relevant review therein was of a decision to detain taken on the basis of legislative provisions whereas the present case concerned the review of a decision to detain on the basis of the common law. In the latter case, the domestic courts could review the facts said to justify detention on a more intrusive basis. The Government contested, as contrary to a fundamental principle of English law, the applicant ’ s suggestion that the legal burden rested on him to prove that his detention was unlawful. 129. The Government also explained why they considered the judicial review/habeas corpus procedure to be sufficiently “speedy” and to constitute a periodic control at reasonable intervals. They maintained that Article 5 § 4 did not require the review to be automatic ( see X v. the United Kingdom, cited above, pp. 22-23, § 52). 130. Finally, the Government added that a patient could also bring a civil claim for damages for negligence, false imprisonment and/ or trespass to the person (assault), which actions would be “ likely ” to cause the hospital to “ justify its treatment ” of the patient without his or her consent. They suggested that the applicant could also have brought declaratory proceedings in the High Court to obtain a declaration as to what would have been in his best interests. 131. The applicant contended that he did not have a domestic review available to him of the existence and persistence of the essential conditions for the lawfulness of his detention. 132. The MHRT could provide such a review under the 1983 Act, but the applicant had not been detained under that Act. 133. Judicial review proceedings ( combined with a writ of habeas corpus ) were clearly insufficient at the time of his detention and remained so even after incorporation. Prior to incorporation, habeas corpus only lay against a decision which was unlawful on the grounds of strict “ illegality ” or lack of jurisdiction. More importantly, the courts would rarely in judicial review interfere with primary findings of fact made by a public authority, particularly where that authority had a particular expertise. Even the more intense review (the “super-Wednesbury ” test ) did not amount to an examination as to whether the authority was correct in acting as it did, but rather whether it had acted “unreasonably” or “irrationally” ( see Smith and Grady, cited above, §§ 137-38 ). Finally, the legal burden of proof was on him to establish that his detention was unlawful, whereas Article 5 § 4 required the State to establish the lawfulness of detention under domestic law and under Article 5 § 1 (e) of the Convention. As to the Government ’ s attempt to distinguish X v. the United Kingdom, the applicant pointed out that they had not referred to a single case where the domestic courts had examined on the merits the lawfulness of a patient ’ s detention under the doctrine of necessity. Indeed, in his own domestic proceedings there was much untested affidavit evidence and no independent psychiatric evidence was obtained by the court as to whether detention was appropriate. Judicial review and habeas corpus procedures were simply not appropriate for the resolution of disputed facts, oral evidence and cross-examination being rarely used. Since incorporation, the applicant noted that the domestic courts had developed the intensity of their review on judicial review. However, he considered it telling that, even if that review was more intense when human rights were involved (the “ super-Wednesbury ” test ) and even if it included a proportionality test ( see R (Daly) v. Home Secretary [2001] 2 Appeal Cases 532), it still did not amount to an adequate review of the continuing presence of the essential conditions for the lawfulness of detention. In this connection, he pointed out that the courts had only once conducted a full merits review since incorporation ( see R. (Wilkinson) v. Broadmoor Special Hospital Authority, cited above, where the Court of Appeal specifically recognised the shift in approach to a merits review after incorporation in order to investigate and resolve medical issues and related Convention rights). In any event, he argued that judicial review / habeas corpus proceedings could not be heard sufficiently speedily or constitute a periodic control at reasonable intervals if the process was to be regularly used by all informal patients. Finally, such proceedings did not amount to the automatic review required by Article 5 § 4 ( see Megyeri v. Germany, judgment of 12 May 1992, Series A no. 237 ‑ A, pp. 11-12, § 22). 134. Finally, the applicant recognised that the High Court ’ s inherent jurisdiction in private - law claims to make “best interests” declarations had developed so that it had now become something akin to a wardship jurisdiction and that that might go some way to satisfying the requirements of Article 5 § 4. However, those developments post - dated his period of detention ( see Re F. (Adult: Court ’ s Jurisdiction), cited above) and, indeed, post-dated incorporation ( see R. (Wilkinson) v. Broadmoor Special Hospital Authority, cited above ). In any event, a “best interests” application would still not satisfy Article 5 § 4 as the onus was on the patient to bring the application. B. The Court ’ s assessment 1. General principles 135. Article 5 § 4 guarantees the right of an individual deprived of his liberty to have the lawfulness of that detention reviewed by a court in the light, not only of domestic - law requirements, but also of the text of the Convention, the general principles embodied therein and the aim of the restrictions permitted by paragraph 1: the structure of Article 5 implies that the notion of “lawfulness” should have the same significance in paragraphs 1 (e) and 4 in relation to the same deprivation of liberty. This does not guarantee a right to review of such scope as to empower the court, on all aspects of the case, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the lawful detention of a person, in this case, on the ground of unsoundness of mind ( see X v. the United Kingdom, cited above, p. 25, § § 57- 58; Ashingdane, cited above, p. 23, § 52; E. v. Norway, cited above, pp. 21-22, § 50; and Hutchison Reid, cited above, § 64). 2. Application to the present case 136. The Government mainly argued that an application for leave to apply for judicial review of the decision to admit and detain, including a writ of habeas corpus, constituted a review fulfilling the requirements of Article 5 § 4 of the Convention. The applicant disagreed. 137. The Court considers that the starting - point must be X v. the United Kingdom ( cited above, pp. 22-26, §§ 52-59), where the Court found that the review conducted in habeas corpus proceedings was insufficient for the purposes of Article 5 § 4 as not being wide enough to bear on those conditions which were essential for the “lawful” detention of a person on the basis of unsoundness of mind since it did not allow a determination of the merits of the question as to whether the mental disorder persisted. The Court is not persuaded by the Government ’ s argument that X v. the United Kingdom can be distinguished because it concerned detention pursuant to a statutory power : no authority has been cited and no other material adduced to indicate that the courts ’ review of detention based on the common - law doctrine of necessity would indeed have been more intrusive. 138. Nor does the Court find convincing the Government ’ s reliance on the development of the “super-Wednesbury” principles of judicial review prior to the entry into force of the Human Rights Act 1998 in October 2000. Those principles were outlined and applied in the domestic judgment in Reg. v. the Ministry of Defence, ex parte Smith (cited above). In the subsequent application to this Court by the same applicant, it was found that, even if his essential complaints under Article 8 of the Convention had been considered by the domestic courts, the threshold at which those courts could have found to be irrational the impugned policy excluding homosexuals from the armed forces had been placed so high that it effectively ruled out any consideration by the domestic courts of the question whether the interference with the applicant ’ s rights answered a pressing social need or was proportionate to the national security and public - order aims pursued, principles which lay at the heart of the Court ’ s analysis of complaints under Article 8. The Court concluded that the remedy of judicial review, even on a “super-Wednesbury” basis, could not therefore constitute an effective remedy (within the meaning of Article 13) for a breach of Mr Smith ’ s rights under Article 8 ( see Smith and Grady, cited above, §§ 35 and 129 - 39). 139. The Court considers that it can equally be concluded for the purposes of Article 5 § 4 (the lex specialis vis-à-vis Article 13 in terms of entitlement to a review of the lawfulness of detention (see Nikolova v. Bulgaria [GC], no. 31195/96, § 69, ECHR 1999 ‑ II ) that, even with the application of the “super-Wednesbury” principles on judicial review, the bar of unreasonableness would, at the time of the applicant ’ s domestic proceedings, have been placed so high as effectively to exclude any adequate examination of the merits of the clinical views as to the persistence of mental illness justifying detention. This is indeed confirmed by the decision of the Court of Appeal, in a case where the necessity of medical treatment was contested by the patient ( see R. (Wilkinson) v. the Responsible Medical Officer Broadmoor Hospital, cited in paragraph 63 above), that pre-incorporation judicial review of necessity in accordance with the “ super-Wednesbury” criteria was not sufficiently intrusive to constitute an adequate examination of the merits of the relevant medical decisions. 140. For these reasons, the Court finds that the requirements of Article 5 § 4 were not satisfied, as suggested by the Government, by judicial review and habeas corpus proceedings. It is not necessary therefore to examine the applicant ’ s additional submissions that those proceedings did not satisfy the requirements of that Article because, inter alia, the burden of proof was on the detainee or because such proceedings did not provide “speedy” and “periodic control” at “reasonable intervals”. 141. The Government also contended, without elaboration, that a dissatisfied patient could bring a civil claim for damages for negligence, false imprisonment and for trespass to the person ( technical assault consequent on detention for treatment ), which actions would be “likely” to cause the hospital to justify its treatment of the patient without consent. The Government then proposed, without further detail, that the applicant could have relied on the declaratory jurisdiction of the High Court. However, the applicant did not allege that the relevant health professionals were negligent, but rather that they had been incorrect in their diagnosis. His own action in false imprisonment and assault did not involve the submission of expert evidence by each of the parties or any assessment by the courts of that expertise and no case, decided at or around the relevant time, has been cited where such expertise was requested or such a merits review was carried out. As to seeking declaratory relief from the High Court, the Government have not cited any case decided around the relevant time where the High Court accepted that there was a “serious justiciable issue” to be examined by it in a case such as the present one where the patient was readmitted and detained for assessment and treatment (which treatment was not of an exceptional nature ) on the basis of a consensus amongst the health professionals that admission was necessary (see, in particular, the Practice Note and Direction 2001 – paragraph 7 3 above). 142. In such circumstances, the Court concludes that it has not been demonstrated that the applicant had available to him a procedure which satisfied the requirements of Article 5 § 4 of the Convention. There has therefore been a violation of this provision. III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 5 143. The applicant further complained under Article 14 of the Convention taken in conjunction with Article 5 that he was discriminated against as an “informal patient ”. Article 14 reads as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 144. While the Government accepted that the applicant ’ s complaints fell within the scope of Article 5, they argued that he had not suffered a discriminatory difference in treatment. In their view, there was an objective and reasonable difference between informal patients and those requiring compulsory detention and there was a reasonable relationship of proportionality between the means chosen to regulate both situations and the legitimate aims sought to be achieved. The applicant alleged a discriminatory difference in treatment between compliant and non-compliant incapacitated patients. Only the latter were treated on an involuntary basis and attracted the full protection of the 1983 Act. 145. The Court considers that this complaint does not give rise to any issue separate from those already examined by it under Article 5 §§ 1 and 4 of the Convention, which provisions the Court has found to have been violated. It does not therefore find it necessary also to examine the complaint under Article 14 of the Convention taken in conjunction with Article 5. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 146. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Non- pecuniary damage 147. The applicant claimed 10,000 pounds sterling (GBP) in compensation for non-pecuniary damage arising from the violations of Article 5 §§ 1 and 4 of the Convention. He pointed out that his complaints under Article 5 § 1 were mainly of a substantive nature. As to Article 5 § 4, he maintained that the Court should follow the line of cases in which an award for non-pecuniary damage in terms of distress and frustration was made even though there had been no underlying unlawful detention or substantive violation ( see, inter alia, Delbec v. France, no. 43125/98, § 42, 18 June 2002, and Laidin v. France (no. 1), no. 43191/98, § 34, 5 November 2002). The Government maintained that a finding of a violation of Article 5 §§ 1 and 4 of the Convention would constitute sufficient just satisfaction. 148. The Court notes that the violations established of Article 5 § § 1 and 4 are of a procedural nature. In Nikolova (cited above, § 76) the question of making an award for non-pecuniary damage was raised in the context of procedural violations of Article 5 §§ 3 and 4 of the Convention. The Court noted that in some earlier cases relatively small awards for non-pecuniary damage had been made but that, in more recent cases, the Court had declined to accept such claims ( see, inter alia, Pauwels v. Belgium, judgment of 26 May 1988, Series A no. 135, p. 20, § 46; Brogan and Others v. the United Kingdom (Article 50), judgment of 30 May 1989, Series A no. 152-B, pp. 4 4 -45, § 9; Huber v. Switzerland, judgment of 23 October 1990, Series A no. 188, p. 19, § 46; and Hood v. the United Kingdom [GC], no. 27267/95, §§ 84-87, ECHR 1999-I). In Nikolova, the Court endorsed the principle, outlined in certain of the above-mentioned cases, that just satisfaction could be awarded only in respect of damage resulting from a deprivation of liberty that the applicant would not have suffered if he or she had had the benefit of the guarantees of Articles 5 §§ 3 and 4 and, further, it confirmed that it would not speculate as to whether or not the applicant would have been detained if there had been no violation of the Convention. The Court therefore concluded in Nikolova that the finding of a violation was sufficient just satisfaction as regards any frustration suffered by the applicant on account of the absence of adequate procedural guarantees. 149. The Court does not see any reason to depart from the position outlined in Nikolova concerning just satisfaction for any distress and frustration suffered by the applicant as a result of the established procedural violations of the rights guaranteed by Article 5 of the Convention. The awards in respect of non-pecuniary damage in Hutchinson Reid (cited above) and in the series of French cases to which the applicant has referred followed findings of, inter alia, unreasonable delay in the domestic proceedings determining applications for release from detention. This is consistent with the award of compensation for non-pecuniary damage following a finding of unreasonable delay under Article 6 § 1 of the Convention: despite the procedural nature of such a violation, it is accepted that there can be a causal link between the violation (delay) and the non-pecuniary damage claimed ( see, more recently, Mitchell and Holloway v. the United Kingdom, no. 44808/98, § 69, 17 December 2002). 150. Accordingly, the Court considers that the finding of a violation of Article 5 § § 1 and 4 of the Convention constitutes sufficient just satisfaction. B. Costs and expenses 151. The applicant claimed reimbursement of approximately GBP 40,000 for costs and expenses. The Government considered this sum excessive. The applicant claimed GBP 20,000 ( exclusive of value-added tax – “VAT”) for his representation by Queen ’ s Counsel at the oral hearing in Strasbourg. He also claimed GBP 12,161.25 (inclusive of VAT) in respect of the work completed by junior counsel, the relevant fee note referring to work done from the application stage to the hearing, to an hourly rate of GBP 150 and to 113 hours ’ work. The Government did not take issue with the fact that two counsel had been briefed, but were concerned about duplication of work. In addition, they considered the sum claimed for Queen ’ s Counsel to be excessive, noting that no fee note or voucher had been submitted and that, if the hourly rate was GBP 200, Queen ’ s Counsel was claiming for 100 hours ’ work solely to represent the applicant at the oral hearing. As to junior counsel ’ s fees, the Government considered the hourly rate excessive and did not accept that the case warranted 113 hours ’ work. They proposed a total sum of GBP 20,000 (inclusive of VAT) as regards all counsels ’ fees. The applicant also claimed GBP 4,542.55 (inclusive of VAT) in solicitors ’ fees, and the Government considered this to be a reasonable figure. 152. The Court reiterates that it must ascertain whether the sum claimed for costs and expenses was actually and necessarily incurred and is reasonable as to quantum (see, among other authorities, Witold Litwa v. Poland, no. 26629/95, § 88, ECHR 2000- III). While it is noted that the applicant did not submit any voucher concerning the fees of Queen ’ s Counsel ( see Ciborek v. Poland, no. 52037/99, § 63, 4 November 2003), the Court acknowledges that he must have incurred certain costs in this connection given that counsel ’ s appearance and submissions on the applicant ’ s behalf at the oral hearing in Strasbourg (see Migoń v. Poland, no. 24244/94, § 95, 25 June 2002). As to junior counsel, the Court notes his involvement from the beginning of the application, but also notes that certain substantial complaints under Articles 3, 8 and 13 were declared inadmissible ( see Nikolova, cited above, § 79). The detailed breakdown of the applicant ’ s solicitors ’ costs is also noted and that the Government considered the claim in that respect to be reasonable. 153. Having regard to all the circumstances, the Court considers it reasonable to award the applicant 29,500 euros (EUR) for his costs and expenses (inclusive of VAT), less EUR 2,667. 57 received by way of legal aid from the Council of Europe, the final sum of EUR 26,832.43 to be converted into pounds sterling at the date of settlement. C. Default interest 154. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court observed in particular that, as a result of the lack of procedural regulation and limits, the hospital's health care professionals had assumed full control of the liberty and treatment of a vulnerable incapacitated individual solely on the basis of their own clinical assessments completed as and when they had considered fit. It found that this absence of procedural safeguards had failed to protect the applicant against arbitrary deprivation of liberty on grounds of necessity and, consequently, to comply with the essential purpose of Article 5 § 1 (right to liberty and security) of the Convention, in violation of that provision. The Court further held that there had been a violation of Article 5 § 4 (right to have lawfulness of detention decided speedily by a court) of the Convention, finding that it had not been demonstrated that the applicant had had available to him a procedure to have the lawfulness of his detention reviewed by a court. Stanev v. Bulgaria |
124 | Minor’s exposure to violent arrest of parent | THE LAW I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION 45. The applicant complained that the unjustified use of physical force against her father during his arrest in her presence and her treatment by FSKN officers had breached her rights under Article 3 of the Convention. She further complained under Article 13 of the Convention that there had been no thorough and independent investigation into that incident. Articles 3 and 13 of the Convention read as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties ’ submissions 1. The Government 46. The Government contested the applicant ’ s allegations, relying on the results of the pre-investigation inquiry (see paragraph 17 above). They submitted that the applicant ’ s presence during B ’ s arrest at the scene of the crime, immediately after his receiving money for sold drugs, had not been anticipated. The arresting officers had been unable to predict the time and place of the offence committed by B. If B had not been arrested, the evidence of the criminal offence would have been lost. 47. The Government stated that the authorities had conducted a comprehensive and thorough investigation into the applicant ’ s alleged ill ‑ treatment in compliance with Article 3. However, not a single piece of information, apart from what had been provided by the applicant ’ s family members, had demonstrated that force had been used against the applicant ’ s father or that she herself had been subjected to the treatment alleged. The applicant had availed herself of effective domestic remedies. The relevant decisions had not been in her favour because her allegations had been unsubstantiated. 2. The applicant 48. The applicant argued that as an involuntary witness to her father ’ s cruel arrest and beatings, she had not received any support or protection from a State representative. After her father ’ s arrest she had been left alone in his car, had run home alone and by chance had been found by one of her relatives in the street in a condition of profound shock. The incident had had serious consequences for her health and development. Ten years after the events complained of she was still suffering from its consequences. Given that she had been nine years old at the time and therefore more susceptible than an adult to the negative consequences of cruel treatment, and taking into account the long-lasting adverse effects it had had on her, the level of her suffering had been so high that her treatment by the police officers should be classified as torture. 49. The applicant further argued that the authorities should have anticipated her possible presence at the scene of the arrest, since the arrest had been carried out near the school where her father had taken her. They could have, for instance, communicated with the school administration to prevent her from coming out of the school at the time of the arrest, or to ensure the presence of a member of the school staff to provide her with psychological support during the arrest. Afterwards they could have taken her back to the school in order to shorten her presence at the place of the arrest or to avoid her going home unaccompanied. The authorities had had the necessary time but had not taken any measures to prevent or minimise the harm to her health. 50. The authorities had refused to initiate criminal proceedings into the applicant ’ s alleged ill-treatment by the police and, instead of a proper investigation, had carried out a superficial pre-investigation inquiry. Their decision had been based on the FSKN officers ’ statements and had failed to take into consideration evidence supporting the applicant ’ s allegations and the contradictions between the statements of the FSKN officers and the witnesses. B. Admissibility 51. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. C. Merits 1. General principles 52. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim ’ s behaviour (see Kudła v. Poland [GC], no. 30210/96, § 90, ECHR 2000 ‑ XI). 53. Where an individual makes a credible assertion that he or she has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State ’ s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. That investigation should be capable of leading to the identification and punishment of those responsible (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000 ‑ IV). Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998 ‑ VIII). 54. Allegations of ill-treatment contrary to Article 3 of the Convention must be supported by appropriate evidence. To establish the facts, the Court applies the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, 18 January 1978, § 161 in fine, Series A no. 25). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000 ‑ VII). 55. In respect of children, who are particularly vulnerable, the measures applied by the State to protect them against acts of violence falling within the scope of Articles 3 and 8 should be effective and include reasonable steps to prevent ill-treatment of which the authorities had, or ought to have had, knowledge and effective deterrence against such serious breaches of personal integrity. Such measures must be aimed at ensuring respect for human dignity and protecting the best interests of the child (see Söderman v. Sweden [GC], no. 5786/08, § 81, ECHR 2013). 56. The Court has previously found in the case of Gutsanovi that the possible presence of children, whose young age makes them psychologically vulnerable, at the scene of an arrest is a factor to be taken into consideration in planning and carrying out this kind of operation (see Gutsanovi v. Bulgaria, no. 34529/10, § 132, ECHR 2013 (extracts)). In that case the Court found that the fact that the police operation had taken place in the early hours of the morning and had involved special agents wearing masks had served to heighten the feelings of fear and anxiety experienced by the children who had witnessed their father ’ s arrest, to the extent that the treatment to which they had been subjected exceeded the threshold of severity required for Article 3 to apply, amounting to degrading treatment (ibid., § 134). 2. Application to the present case (a) The establishment of the facts 57. It is not disputed between the parties that the applicant was present at the place of B ’ s arrest and saw what happened to him, and that shortly after those events she was diagnosed with a number of medical conditions, including a neurological disorder, enuresis and post-traumatic stress disorder. The applicant claimed that her health disorders had been caused by her exposure to a scene of violence against her father, who had not resisted his arrest, involving his being knocked to the ground and beaten up, notably being kicked repeatedly to his torso. The Government contested the applicant ’ s allegations, claiming that B ’ s arrest did not involve any use of force against him and that the authorities could not therefore be held responsible for any harm suffered by the applicant. In doing so the Government relied on the records of B ’ s detention facility and the statements made in the course of the pre ‑ investigation inquiry into the applicant ’ s allegations by: - FSKN officers S.K., V.D., A.O., V.E., E.N. and S.S.; - Federal Security Service officer S.P.; - Apsheronsk police officers K.A. and M.I.; - attesting witnesses A.Sh. and P.M., and - FSKN officer A.Z., who carried out the FSKN internal investigation (see paragraph 17 above). The Court will examine that material, together with the other material in the case file before it. 58. According to the records from the detention facility in which B was detained after his arrest, he bore no traces of injuries and made no complaints (see paragraph 27 below). It is not necessary for the Court to examine the reliability of those records in view of B ’ s own statements that the blows received by him during his arrest did not leave bruises on his body (see paragraph 34 above). It cannot be excluded that the alleged force used against B – notably being knocked to the ground and kicked several times – could have left no visible traces on his body. The Court notes in this regard that – according to B and witness R.G. (see paragraphs 10 and 13 above) – the FSKN officers who arrested B, including the one who allegedly used force against him, were dressed in tracksuits (see also the statements by attesting witnesses A.Sh. and P.M., FSKN officer E.N. and Apsheronsk police officers K.A. and M.I., who mentioned that the arresting officers had been in civilian clothing, paragraphs 31 and 35-37 above). This suggests that they may have been wearing trainers, which might not have caused the same blunt-trauma bruising and abrasions as army-type boots (see, for example, Ksenz and Others v. Russia, nos. 45044/06 and 5 others, § § 39, 43, 45 and 96, 12 December 2017). 59. According to the identical written “explanations” made by FSKN officers S.K., V.D. and A.O., who apprehended B, and senior officer V.E., who was present during the arrest, no physical force was used against B during his arrest (see paragraph 24 above). According to FSKN officer E.N., who acted as a buyer in the undercover operation against B and was also present during B ’ s arrest, no physical force, “strong-arm tactics” or “holds” were used against B (see paragraph 36 above). Apart from the fact that the above-mentioned officers had a direct interest in denying the accusations made against them by the applicant, their statements sit ill with those made by S.P. and R.G. 60. S.P., the Federal Security Service officer present during B ’ s arrest, acknowledged that physical force had been used against B. He contended that it had been necessary because B had tried to escape, and had not been excessive, that is it had not escalated into a beating (see paragraph 39 above). It should be noted that S.P. ’ s statement that B had tried to escape finds no support in the statements of the FSKN officers (see paragraphs 24 and 36 above), the attesting witnesses (see paragraphs 31 and 35 above) or witness R.G. (see paragraph 13 above). Nor was it claimed that B had resisted his arrest by using force. 61. According to R.G., an electrician who had been carrying out maintenance work on the traffic lights near school no. 1 on the morning of 31 May 2008 and witnessed B ’ s arrest, FSKN officer S.K. delivered several blows to B during his arrest (see paragraph 40 above); he knocked B to the ground and kicked him (see paragraph 13 above). FSKN officer A.Z., who carried out the FSKN internal investigation, dismissed R.G. ’ s statements as unreliable. He alleged that R.G. was a drug user who had been arrested in the past for administrative offences of drugs consumption. Moreover, there had been no confirmation from his employer that R.G. had indeed been working in the area on 31 May 2008 (see paragraph 40 above). The Court does not find A.Z. ’ s assessment convincing, since he belonged to the same unit as the FSKN officers who were allegedly at fault, which raises an issue as to the independence of such an investigation. Apart from the fact that R.G. ’ s alleged drugs consumption or his employer ’ s failure to submit the relevant certificate would not as such be sufficient grounds to discard his statements, no details were given as regards any administrative proceedings against him. Furthermore, R.G., whose testimony was very important for establishing the facts, was never interviewed by the investigative committee, which instead relied on A.Z. ’ s assessment. The same is true in respect of a “specialist” (whose name, qualifications and other details were not provided) allegedly consulted by A.Z. and on whose opinion A.Z. had relied in concluding that the applicant had a pre-existing neurological pathology which made her prone to psychological trauma as a result of even a minor stressful situation (see paragraph 40 above), to hold that her health disorders had been caused by her having observed B being arrested without any use of force against him. This conclusion was adopted by the official pre-investigation inquiry without ever questioning the “specialist”. 62. The Court also notes that FSKN officer S.S. arrived at the place of B ’ s arrest after B had been apprehended and therefore did not see his arrest (see paragraph 38 above). The same applies to B ’ s colleagues from the Apsheronsk police department, K.A. and M.I. (see paragraph 37 above). The latter contended that B ’ s shirt had been open and slightly torn, and that the shirt buttons had been missing. K.A. ’ s and M.I. ’ s statements therefore confirm the applicant ’ s allegation that during her father ’ s violent arrest his shirt had been torn and its buttons ripped off. This is also supported by her parents ’ statements (see paragraphs 10, 12 and 34 above), as well as by photographs of the shirt (see paragraph 16 above). 63. Lastly, the Government relied on the explanations by attesting witnesses to the undercover operation against B carried out on 30 and 31 May 2008, A.Sh. and P.M., according to whom no physical force had been used against B during his arrest (see paragraphs 31 and 35 below). However, when examined as a witness a year later in relation to the criminal proceedings against B, P.M. acknowledged that he had testified falsely, at the request of the FSKN officers, that he had seen the transfer of drugs and money. He also acknowledged that on 31 May 2008 he and A.Sh. had been taken to the place of B ’ s arrest after B had been apprehended (see paragraph 43 above). It follows from P.M. ’ s witness statements that neither he nor A.Sh. saw B being apprehended, and the explanations they submitted in the course of the pre-investigation inquiry into the applicant ’ s complaint cannot have any evidentiary value. Furthermore, their statements, together with the findings in the decision terminating the criminal proceedings against B (see paragraphs 43-44 above), which were not disputed by the Government, discredit the explanations made by the FSKN officers, as well as the Government ’ s arguments about the unpredictability of the offence committed by B and the applicant ’ s presence at the “scene of the crime”, and the need to arrest B in order to prevent the loss of evidence (see paragraph 46 above). 64. It transpires that E.N., who acted as a buyer in the FSKN operation against B, learned from a telephone call on the morning of 31 May 2008 that B was at the school (see E.N. ’ s statements and B ’ s statements about informing E.N. that he was at the school with his child, paragraphs 36 and 10, respectively). When B came out of the school together with the applicant, E.N. was waiting for him. Immediately after the meeting between B and E.N., B was arrested by the FSKN officers, who acknowledged in their explanations to the investigative committee that when they apprehended B, he was near his car in which his daughter, A, was sitting (see paragraph 24 above). Federal Security Service officer S.P. ’ s statements also show that the law-enforcement officers participating in B ’ s arrest were aware that B ’ s daughter, A, was present at the place of arrest (see paragraph 39 above). 65. While the Court cannot examine the applicant ’ s allegation that she had been left to go home unaccompanied, which was not raised in the domestic proceedings (see paragraph 23 above), and cannot establish beyond reasonable doubt on the basis of the material before it her allegations about being addressed rudely and held in the car, the above assessment leads the Court to conclude that her allegations concerning her being exposed to her father ’ s arrest, and the violent nature of the arrest, were credible. (b) Compliance with Article 3 66. The Court notes next that the Government ’ s version of the facts was based on the pre ‑ investigation inquiry, the first stage in the procedure for examining criminal complaints. The Court has held, however, that the mere carrying out of a pre-investigation inquiry, not followed by a preliminary investigation, is insufficient for the authorities to comply with the requirements of an effective investigation into credible allegations of ill ‑ treatment by the police under Article 3 of the Convention (see Lyapin v. Russia, no. 46956/09, § 136, 24 July 2014, and, more recently, Samesov v. Russia, no. 57269/14, § 51, 20 November 2018). The Court has no reason to reach a different conclusion in the present case. The authorities responded to the applicant ’ s credible allegations of treatment proscribed by Article 3 by carrying out a pre-investigation inquiry and refused to institute criminal proceedings and carry out a fully-fledged investigation. This was endorsed by the domestic courts, thereby departing from their procedural obligation under Article 3. The pre ‑ investigation inquiry did not provide the Government with a proper basis to discharge their burden of proof and produce evidence capable of casting doubt on the applicant ’ s credible allegations concerning her exposure to the violent arrest of her father, which the Court therefore finds established (see Olisov and Others v. Russia, nos. 10825/09 and 2 others, § 85, 2 May 2017, and Samesov, cited above, § 53). 67. The interests of the applicant, who was nine years old at the time, were not taken into consideration at any stage in the planning and carrying out of the authorities ’ operation against her father. The law-enforcement officers paid no heed to her presence, of which they were well aware, proceeding with the operation and exposing her to a scene of violence against her father in the absence of any resistance on his part. This very severely affected the applicant and, in the Court ’ s view, amounted to a failure on the part of the authorities to prevent her ill-treatment (see paragraph 55 above). 68. There has therefore been a violation of the State ’ s positive substantive obligation under Article 3 of the Convention. 69. There has also been a violation of Article 3 under its procedural limb in that no effective investigation was carried out in that respect. 70. In view of its finding of a violation of Article 3 under its procedural limb the Court does not find it necessary to examine separately under Article 13 of the Convention the applicant ’ s complaint concerning the lack of an effective investigation into the incident of 31 May 2008. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 71. The applicant complained that the use of unjustified force against her father in her presence had also disregarded her feelings towards her beloved father in breach of her rights under Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 72. The Government contested that argument. 73. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 74. Having regard to the finding relating to the applicant ’ s complaint under Article 3 (see paragraphs 67-68 above) which was based on the same facts as her complaint under Article 8, the Court considers that this complaint is absorbed by the preceding complaint and it is not therefore necessary to examine whether, in this case, there has also been a violation of Article 8. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 75. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 76. The applicant claimed compensation in respect of non-pecuniary damage, leaving it to the Court to determine its amount. 77. The Government submitted that Article 41 should be applied in accordance with the Court ’ s case-law. 78. The Court awards the applicant 25,000 euros (EUR) in respect of non-pecuniary damage. B. Costs and expenses 79. The applicant also claimed EUR 4,500 for the costs and expenses incurred before the Court. 80. The Government stated that Article 41 should be applied in accordance with the Court ’ s case-law. 81. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession, notably a legal services agreement concluded by the applicant after lodging her application with the Court, and the above criteria, the Court considers it reasonable to award the sum of EUR 3,500 for costs and expenses for the proceedings before the Court. C. Default interest 82. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court found that the applicant’s allegations were credible. It further noted that the law-enforcement officers, who had to have been well aware that the applicant was or would be on the scene of the operation, had taken no account of her interests when planning and carrying out their operation against her father, thus exposing her to a scene of violence. That had very severely affected her, as she had suffered in particular from a neurological disorder and post-traumatic stress disorder for several years afterwards. In the Court’s view, the applicant witnessing such a violent incident had amounted to ill-treatment which the authorities had failed to prevent, in breach of their obligations under Article 3 (prohibition of inhuman or degrading treatment) of the Convention. The Court also held that there had been a violation of Article 3 of the Convention, under its procedural limb, on account of the lack of an effective investigation into the incident. In this respect, it found that the mere carrying out of a pre-investigation inquiry, not followed by a preliminary investigation, was insufficient for the authorities to comply with the requirements of an effective investigation into credible allegations of ill treatment by the police under Article 3 of the Convention. |
929 | Impression of independence | II. Relevant domestic law and practice 1. The law in force at the time of Mr Findlay ’ s court martial (a) General 32. The law and procedures which applied to the applicant ’ s court martial were contained in the Army Act 1955 ("the 1955 Act"), the Rules of Procedure (Army) 1972 ("the 1972 Rules") and the Queen ’ s Regulations (1975). Since the Commission ’ s consideration of the case, certain provisions in the 1955 Act have been amended by the Armed Forces Act 1996 ("the 1996 Act"), which comes into force on 1 April 1997 (see paragraphs 52-57 below). 33. Many civilian offences are also offences under the 1955 Act (section 70 (1)). Although the final decision on jurisdiction lies with the civilian authorities, army personnel who are accused of such offences are usually tried by the military authorities unless, for example, civilians are involved in some way. Depending on their gravity, charges against army law can be tried by district, field or general court martial. A court martial is not a standing court: it comes into existence in order to try a single offence or group of offences. 34. At the time of the events in question, a general court martial consisted of a president (normally a brigadier or colonel in the army), appointed by name by the convening officer (see paragraphs 36-41 below), and at least four other army officers, either appointed by name by the convening officer or, at the latter ’ s request, by their commanding officer. 35. Each member of the court martial had to swear the following oath: "I swear by almighty God that I will well and truly try the accused before the court according to the evidence, and that I will duly administer justice according to the Army Act 1955, without partiality, favour or affection, and I do further swear that I will not on any account at any time whatsoever disclose or discover the vote or opinion of the president or any member of this court martial, unless thereunto required in the due course of law." (b) The convening officer 36. Before the coming into force of the 1996 Act, a convening officer (who had to be a field officer or of corresponding or superior rank, in command of a body of the regular forces or of the command within which the person to be tried was serving) assumed responsibility for every case to be tried by court martial. He or she would decide upon the nature and detail of the charges to be brought and the type of court martial required, and was responsible for convening the court martial. 37. The convening officer would draw up a convening order, which would specify, inter alia, the date, place and time of the trial, the name of the president and the details of the other members, all of whom he could appoint (see paragraph 15 above). He ensured that a judge advocate (see paragraph 43 below) was appointed by the Judge Advocate General ’ s Office and, failing such appointment, could appoint one. He also appointed, or directed a commanding officer to appoint, the prosecuting officer. 38. Prior to the hearing, the convening officer was responsible for sending an abstract of the evidence to the prosecuting officer and to the judge advocate, and could indicate the passages which might be inadmissible. He procured the attendance at trial of all witnesses to be called for the prosecution. When charges were withdrawn, the convening officer ’ s consent was normally obtained, although it was not necessary in all cases, and a plea to a lesser charge could not be accepted from the accused without it. 39. He had also to ensure that the accused had a proper opportunity to prepare his defence, legal representation if required and the opportunity to contact the defence witnesses, and was responsible for ordering the attendance at the hearing of all witnesses "reasonably requested" by the defence. 40. The convening officer could dissolve the court martial either before or during the trial, when required in the interests of the administration of justice (section 95 of the 1955 Act). In addition, he could comment on the "proceedings of a court martial which require confirmation". Those remarks would not form part of the record of the proceedings and would normally be communicated in a separate minute to the members of the court, although in an exceptional case "where a more public instruction [was] required in the interests of discipline", they could be made known in the orders of the command (Queen ’ s Regulations, paragraph 6.129). 41. The convening officer usually acted as confirming officer also (see paragraph 48 below). (c) The Judge Advocate General and judge advocates 42. The current Judge Advocate General was appointed by the Queen in February 1991 for five years. He is answerable to the Queen and is removable from office by her for inability or misbehaviour. At the time of the events in question, the Judge Advocate General had the role of adviser to the Secretary of State for Defence on all matters touching and concerning the office of Judge Advocate General, including advice on military law and the procedures and conduct of the court-martial system. He was also responsible for advising the confirming and reviewing authorities following a court martial (see paragraph 49 below). 43. Judge advocates are appointed to the Judge Advocate General ’ s Office by the Lord Chancellor. They must have at least seven and five years experience respectively as an advocate or barrister. 44. At the time of the events in question, a judge advocate was appointed to each court martial, either by the Judge Advocate General ’ s Office or by the convening officer. He or she was responsible for advising the court martial on all questions of law and procedure arising during the hearing and the court had to accept this advice unless there were weighty reasons for not doing so. In addition, in conjunction with the president, he was under a duty to ensure that the accused did not suffer any disadvantage during the hearing. For example, if the latter pleaded guilty, the judge advocate had to ensure that he or she fully understood the implications of the plea and admitted all the elements of the charge. At the close of the hearing, the judge advocate would sum up the relevant law and evidence. 45. Prior to the coming into force of the 1996 Act, the judge advocate did not take part in the court martial ’ s deliberations on conviction or acquittal, although he could advise it in private on general principles in relation to sentencing. He was not a member of the court martial and had no vote in the decision on conviction or sentence. (d) Procedure on a guilty plea 46. At the time of the events in question, on a plea of guilty, the prosecuting officer outlined the facts and put in evidence any circumstance which might have made the accused more susceptible to the commission of the offence. The defence made a plea in mitigation and could call witnesses (rules 71 (3) (a) and 71 (5) (a) of the 1972 Rules). The members of the court martial then retired with the judge advocate to consider the sentence, which was pronounced in open court. There was no provision for the giving of reasons by the court martial for its decision. 47. Certain types of sentence were not available to courts martial at the time of the applicant ’ s trial, even in respect of civilian offences. For example, a court martial could not suspend a prison sentence, issue a probation order or sentence to community service. (e) Confirmation and post-hearing reviews 48. Until the amendments introduced by the 1996 Act, a court martial ’ s findings were not effective until confirmed by a "confirming officer". Prior to confirmation, the confirming officer used to seek the advice of the Judge Advocate General ’ s Office, where a judge advocate different to the one who acted at the hearing would be appointed. The confirming officer could withhold confirmation or substitute, postpone or remit in whole or in part any sentence. 49. Once the sentence had been confirmed, the defendant could petition the "reviewing authorities". These were the Queen, the Defence Council (who could delegate to the Army Board), or any officer superior in command to the confirming officer (section 113 of the 1955 Act). The reviewing authorities could seek the advice of the Judge Advocate General ’ s Office. They had the power to quash a finding and to exercise the same powers as the confirming officer in relation to substituting, remitting or commuting the sentence. 50. A petitioner was not informed of the identity of the confirming officer or of the reviewing authorities. No statutory or formalised procedures were laid down for the conduct of the post-hearing reviews and no reasons were given for decisions delivered subsequent to them. Neither the fact that advice had been received from the Judge Advocate General ’ s Office nor the nature of that advice was disclosed. 51. A courts martial appeal court (made up of civilian judges) could hear appeals against conviction from a court martial, but there was no provision for such an appeal against sentence when the accused pleaded guilty. 2. The Armed Forces Act 1996 52. Under the 1996 Act, the role of the convening officer will cease to exist and his functions will be split among three different bodies: the "higher authorities", the prosecuting authority and court administration officers (see 1996 Act, Schedule I). 53. The higher authority, who will be a senior officer, will decide whether any case referred to him by the accused ’ s commanding officer should be dealt with summarily, referred to the new prosecuting authority, or dropped. Once the higher authority has taken this decision, he or she will have no further involvement in the case. 54. The prosecuting authority will be the Services ’ legal branches. Following the higher authority ’ s decision to refer a case to them, the prosecuting authority will have absolute discretion, applying similar criteria as those applied in civilian cases by the Crown Prosecution Service to decide whether or not to prosecute, what type of court martial would be appropriate and precisely what charges should be brought. They will then conduct the prosecution (1996 Act, Schedule I, Part II). 55. Court administration officers will be appointed in each Service and will be independent of both the higher and the prosecuting authorities. They will be responsible for making the arrangements for courts martial, including arranging venue and timing, ensuring that a judge advocate and any court officials required will be available, securing the attendance of witnesses and selection of members. Officers under the command of the higher authority will not be selected as members of the court martial (1996 Act, Schedule I, Part III, section 19). 56. Each court martial will in future include a judge advocate as a member. His advice on points of law will become rulings binding on the court and he will have a vote on sentence (but not on conviction). The casting vote, if needed, will rest with the president of the court martial, who will also give reasons for the sentence in open court. The Judge Advocate General will no longer provide general legal advice to the Secretary of State for Defence (1996 Act, Schedule I, Part III, sections 19, 25 and 27). 57. Findings by a court martial will no longer be subject to confirmation or revision by a confirming officer (whose role is to be abolished). A reviewing authority will be established in each Service to conduct a single review of each case. Reasons will be given for the decision of the reviewing authority. As part of this process, post-trial advice received by the reviewing authority from a judge advocate (who will be different from the one who officiated at the court-martial) will be disclosed to the accused. A right of appeal against sentence to the (civilian) courts martial appeal court will be added to the existing right of appeal against conviction (1996 Act, section 17 and Schedule V). PROCEEDINGS BEFORE THE COMMISSION 58. In his application to the Commission (no. 22107/93) of 28 May 1993, Mr Findlay made a number of complaints under Article 6 para. 1 of the Convention (art. 6-1), inter alia that he had been denied a fair hearing before the court martial and that it was not an independent and impartial tribunal. 59. The Commission declared the application admissible on 23 February 1995. In its report of 5 September 1995 (Article 31) (art. 31), it expressed the unanimous opinion that there had been a violation of Article 6 para. 1 of the Convention (art. 6-1), in that the applicant was not given a fair hearing by an independent and impartial tribunal, and that it was unnecessary to examine the further specific complaints as to the fairness of the court-martial proceedings and the subsequent reviews or the reasonableness of the decisions taken against him and the available sentencing options. The full text of the Commission ’ s opinion is reproduced as an annex to this judgment [3]. FINAL SUBMISSIONS TO THE COURT 60. At the hearing, the Government said that it did not contest the Commission ’ s conclusions but asked the Court to take note of the changes to the court-martial system to be effected by the Armed Forces Act 1996 which, they submitted, more than satisfactorily met the Commission ’ s concerns. On the same occasion, the applicant asked the Court to find a violation of Article 6 para. 1 (art. 6-1) and to award him just satisfaction under Article 50 of the Convention (art. 50). AS TO THE LAW I. SCOPE OF THE CASE A. The complaints concerning Article 6 para. 1 of the Convention (art. 6-1) 61. In his written and oral pleadings before the Court, Mr Findlay complained that the court martial was not an "independent and impartial tribunal", that it did not give him a "public hearing" and that it was not a tribunal "established by law". 62. The Government and the Commission ’ s Delegate both observed at the hearing that since the latter two complaints had not been expressly raised before the Commission, the Court should decline to entertain them. 63. The Court recalls that the scope of its jurisdiction is determined by the Commission ’ s decision on admissibility and that it has no power to entertain new and separate complaints which were not raised before the Commission (see, inter alia, the Singh v. the United Kingdom judgment of 21 February 1996, Reports of Judgments and Decisions 1996-I, p. 293, para. 44). However, while Mr Findlay in his application to the Commission may not expressly have invoked his rights under Article 6 para. 1 of the Convention (art. 6-1) to a "public hearing" and a "tribunal established by law", he does appear to have raised in substance most of the matters which form the basis of his complaints in relation to these two provisions. Thus, in the Commission ’ s decision on admissibility, he is reported as referring in particular to the facts that the members of the court martial were appointed ad hoc, that the judge advocate ’ s advice on sentencing was not disclosed, that no reasons were given for the decisions taken by the court-martial board and the confirming and reviewing officers, and that the post-hearing reviews were essentially administrative in nature and conducted in private (see the Commission ’ s decision on admissibility, application no. 22107/93, pp. 32 ‑ 35). It follows that these are not new and separate complaints, and that the Court has jurisdiction to consider these matters (see, inter alia and mutatis mutandis, the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, p. 46, para. 80). B. The complaint concerning Article 25 of the Convention (art. 25) and Article 2 of the European Agreement 64. In his additional memorial (see paragraph 4 above) the applicant asserted that, in correspondence with the Solicitors ’ Complaints Bureau (a professional disciplinary body) concerning a matter of no relevance to the present case, the Judge Advocate General had complained that, during the course of Mr Findlay ’ s application to the Commission, his solicitor had made allegations concerning a lack of impartiality in the advice given by the Judge Advocate General ’ s Office. The Judge Advocate General, Judge Rant, had commented: "These are extremely serious allegations ...". In a later letter, Judge Rant wrote: "I wish to make it clear that, at this stage and without prejudice to any action which might have to be taken in the future, I am making no formal complaint about the passage [from the applicant ’ s submission to the Commission] quoted in that letter. The reason for this is that the case of Findlay is to be argued before the European Court of Human Rights in September 1996 and therefore it is only proper for me to defer action until the end of those proceedings." The applicant alleged that his solicitor felt constrained in presenting his arguments to the Court in the knowledge that they might subsequently form the basis of disciplinary proceedings and he invoked his rights under Article 25 of the Convention (art. 25) and Article 2 of the European Agreement relating to Persons Participating in Proceedings before the European Commission and Court of Human Rights. 65. Since this issue was not pursued by the applicant at the hearing or referred to by the Government or the Delegate of the Commission at any time, the Court does not find it appropriate to examine it. C. The new legislation 66. In their written and oral pleadings, the Government asked the Court to take note in its judgment of the changes to be effected in the court-martial system by the Armed Forces Act 1996 (see paragraphs 52-57 above). 67. The Court recalls that this new statute does not come into force until April 1997, and thus did not apply at the time of Mr Findlay ’ s court martial. It is not the Court ’ s task to rule on legislation in abstracto and it cannot therefore express a view as to the compatibility of the provisions of the new legislation with the Convention (see, mutatis mutandis, the Silver and Others v. the United Kingdom judgment of 25 March 1983, Series A no. 61, p. 31, para. 79). Nonetheless, it notes with satisfaction that the United Kingdom authorities have made changes to the court-martial system with a view to ensuring the observance of their Convention commitments. II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 OF THE CONVENTION (art. 6-1) 68. The applicant claimed that his trial by court martial failed to meet the requirements of Article 6 para. 1 of the Convention (art. 6-1), which provides (so far as is relevant): "In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law ..." The Commission found that there had been a violation, in that the applicant was not given a fair hearing by an independent and impartial tribunal, and the Government did not contest this conclusion. A. Applicability 69. In the view of the Court, Article 6 para. 1 (art. 6-1) is clearly applicable to the court-martial proceedings, since they involved the determination of Mr Findlay ’ s sentence following his plea of guilty to criminal charges; indeed, this point was not disputed before it (see the Engel and Others v. the Netherlands judgment of 18 June 1976, Series A no. 22, pp. 33-36, paras. 80-85, and the Eckle v. Germany judgment of 15 July 1982, Series A no. 51, pp. 34-35, paras. 76-77). B. Compliance 70. The applicant complained that the court martial was not an "independent and impartial tribunal" as required by Article 6 para. 1 (art. 6 ‑ 1), because, inter alia, all the officers appointed to it were directly subordinate to the convening officer who also performed the role of prosecuting authority (see paragraphs 14-17 and 36-41 above). The lack of legal qualification or experience in the officers making the decisions either at the court martial or review stages made it impossible for them to act in an independent or impartial manner. In addition, he asserted that he was not afforded a "public hearing" within the meaning of Article 6 para. 1 (art. 6-1), in that the judge advocate ’ s advice to the court-martial board, the confirming officer and the reviewing authorities was confidential; no reasons were given for the decisions made at any of these stages in the proceedings; and the process of confirming and reviewing the verdict and sentence by the confirming officer and reviewing authorities was carried out administratively, in private, with no apparent rules of procedure (see paragraphs 42-46 and 48-51 above). Finally, he claimed that his court martial was not a tribunal "established by law", because the statutory framework according to which it proceeded was too vague and imprecise; for example, it was silent on the question of how the convening officer, confirming officer and reviewing authorities were to be appointed. 71. The Government had no observations to make upon the Commission ’ s conclusion that there had been a violation of Article 6 para. 1 of the Convention (art. 6-1) by reason of the width of the role of the convening officer and his command links with members of the tribunal. They asked the Court to take note of the changes to the court-martial system to be effected by the Armed Forces Act 1996 which, in their submission, more than satisfactorily met the Commission ’ s concerns. 72. The Commission found that although the convening officer played a central role in the prosecution of the case, all of the members of the court ‑ martial board were subordinate in rank to him and under his overall command. He also acted as confirming officer, and the court martial ’ s findings had no effect until confirmed by him. These circumstances gave serious cause to doubt the independence of the tribunal from the prosecuting authority. The judge advocate ’ s involvement was not sufficient to dispel this doubt, since he was not a member of the court martial, did not take part in its deliberations and gave his advice on sentencing in private. In addition, it noted that Mr Findlay ’ s court-martial board contained no judicial members, no legally qualified members and no civilians, that it was set up on an ad hoc basis and that the convening officer had the power to dissolve it either before or during the trial. The requirement to take an oath was not a sufficient guarantee of independence. Accordingly, it considered that the applicant ’ s fears about the independence of the court martial could be regarded as objectively justified, particularly in view of the nature and extent of the convening officer ’ s roles, the composition of the court martial and its ad hoc nature. This defect was not, moreover, remedied by any subsequent review by a judicial body affording all the guarantees required by Article 6 para. 1 (art. 6-1), since the confirming officer was the same person as the convening officer, and the reviewing authorities were army officers, the second of whom was superior in rank to the first. The ineffectiveness of the post-hearing reviews was further underlined by the secrecy surrounding them and the lack of opportunity for Mr Findlay to participate in a meaningful way. 73. The Court recalls that in order to establish whether a tribunal can be considered as "independent", regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence (see the Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 15, para. 37). As to the question of "impartiality", there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect (see the Pullar v. the United Kingdom judgment of 10 June 1996, Reports 1996-III, p. 792, para. 30). The concepts of independence and objective impartiality are closely linked and the Court will consider them together as they relate to the present case. 74. The Court observes that the convening officer, as was his responsibility under the rules applicable at the time, played a significant role before the hearing of Mr Findlay ’ s case. He decided which charges should be brought and which type of court martial was most appropriate. He convened the court martial and appointed its members and the prosecuting and defending officers (see paragraphs 14-15 and 36-37 above). Under the rules then in force, he had the task of sending an abstract of the evidence to the prosecuting officer and the judge advocate and could indicate passages which might be inadmissible. He procured the attendance at trial of the witnesses for the prosecution and those "reasonably requested" by the defence. His agreement was necessary before the prosecuting officer could accept a plea to a lesser charge from an accused and was usually sought before charges were withdrawn (see paragraphs 38 and 39 above). For these reasons the Court, like the Commission, considers that the convening officer was central to Mr Findlay ’ s prosecution and closely linked to the prosecuting authorities. 75. The question therefore arises whether the members of the court martial were sufficiently independent of the convening officer and whether the organisation of the trial offered adequate guarantees of impartiality. In this respect also the Court shares the concerns of the Commission. It is noteworthy that all the members of the court martial, appointed by the convening officer, were subordinate in rank to him. Many of them, including the president, were directly or ultimately under his command (see paragraph 16 above). Furthermore, the convening officer had the power, albeit in prescribed circumstances, to dissolve the court martial either before or during the trial (see paragraph 40 above). 76. In order to maintain confidence in the independence and impartiality of the court, appearances may be of importance. Since all the members of the court martial which decided Mr Findlay ’ s case were subordinate in rank to the convening officer and fell within his chain of command, Mr Findlay ’ s doubts about the tribunal ’ s independence and impartiality could be objectively justified (see, mutatis mutandis, the Sramek v. Austria judgment of 22 October 1984, Series A no. 84, p. 20, para. 42). 77. In addition, the Court finds it significant that the convening officer also acted as "confirming officer". Thus, the decision of the court martial was not effective until ratified by him, and he had the power to vary the sentence imposed as he saw fit (see paragraph 48 above). This is contrary to the well-established principle that the power to give a binding decision which may not be altered by a non-judicial authority is inherent in the very notion of "tribunal" and can also be seen as a component of the "independence" required by Article 6 para. 1 (art. 6-1) (see, mutatis mutandis, the Van de Hurk v. the Netherlands judgment of 19 April 1994, Series A no. 288, p. 16, para. 45). 78. The Court further agrees with the Commission that these fundamental flaws in the court-martial system were not remedied by the presence of safeguards, such as the involvement of the judge advocate, who was not himself a member of the tribunal and whose advice to it was not made public (see paragraphs 45-46 above), or the oath taken by the members of the court-martial board (see paragraph 35 above). 79. Nor could the defects referred to above (in paragraphs 75 and 77) be corrected by any subsequent review proceedings. Since the applicant ’ s hearing was concerned with serious charges classified as "criminal" under both domestic and Convention law, he was entitled to a first-instance tribunal which fully met the requirements of Article 6 para. 1 (art. 6-1) (see the De Cubber v. Belgium judgment of 26 October 1984, Series A no. 86, pp. 16-18, paras. 31-32). 80. For all these reasons, and in particular the central role played by the convening officer in the organisation of the court martial, the Court considers that Mr Findlay ’ s misgivings about the independence and impartiality of the tribunal which dealt with his case were objectively justified. In view of the above, it is not necessary for it to consider the applicant ’ s other complaints under Article 6 para. 1 (art. 6-1), namely that he was not afforded a "public hearing" by a tribunal "established by law". In conclusion, there has been a violation of Article 6 para. 1 of the Convention (art. 6-1). III. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50) 81. The applicant claimed just satisfaction pursuant to Article 50 of the Convention (art. 50), which states: "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." A. Pecuniary damage 82. The applicant claimed compensation for loss of income totalling 440,200 pounds sterling (GBP), on the basis that, had he not been convicted and sentenced as he was, he would have completed a twenty-two year engagement in the army, eventually attaining the rank of Colour Sergeant, with entitlement to a pension from the age of forty. 83. The Government submitted that a finding of a violation would constitute sufficient satisfaction, or, in the alternative, that only a very modest amount should be awarded. First, there were no grounds for believing that the applicant would not have been convicted, sentenced to a term of imprisonment and dismissed from the army following his trial (at which he pleaded guilty), even if the court martial had been differently organised. Secondly, it was in any case unlikely that he would have enjoyed a long career in the army, in view of the post traumatic stress disorder and back injury from which he suffered (see paragraphs 8, 9 and 30 above); he had already received GBP 100,000 in settlement of his civil claim against the Ministry of Defence, a large part of which related to loss of earning capacity. 84. At the hearing, the Commission ’ s Delegate observed that no causal link had been established between the breach of the Convention complained of by the applicant and the alleged pecuniary damage, and submitted that it was not possible to speculate as to whether the proceedings would have led to a different outcome had they fulfilled the requirements of Article 6 para. 1 (art. 6-1). 85. The Court agrees; it cannot speculate as to what the outcome of the court-martial proceedings might have been had the violation of the Convention not occurred (see, for example, the Schmautzer v. Austria judgment of 23 October 1995, Series A no. 328-A, p. 16, para. 44). It is therefore inappropriate to award Mr Findlay compensation for pecuniary damage. B. Non-pecuniary damage 86. The applicant claimed compensation of GBP 50,000 for the distress and suffering caused by the court-martial proceedings and for the eight months he spent in prison. He also asked that his conviction be quashed. 87. The Government pointed out that it was beyond the power of the Court to quash the applicant ’ s conviction. 88. The Court reiterates that it is impossible to speculate as to what might have occurred had there been no breach of the Convention. Furthermore, it has no jurisdiction to quash convictions pronounced by national courts (see the above-mentioned Schmautzer judgment, loc. cit.). In conclusion, the Court considers that a finding of violation in itself affords the applicant sufficient reparation for the alleged non-pecuniary damage. C. Costs and expenses 89. The applicant claimed GBP 23,956.25 legal costs and expenses, which included GBP 1,000 solicitor ’ s costs and GBP 250 counsel ’ s fees for the application before the Divisional Court. 90. The Government expressed the view that the costs of the application to the Divisional Court should be disallowed, and submitted that a total of GBP 22,500 would be a reasonable sum. 91. The Court considers that, in the circumstances of the present case, it was reasonable to make the application to the Divisional Court, in an attempt to seek redress for the violation of which Mr Findlay complains. It therefore decides to award in full the costs and expenses claimed, less the amounts received in legal aid from the Council of Europe which have not already been taken into account in the claim. D. Default interest 92. According to the information available to the Court, the statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment is 8% per annum. | The Court held that there had been a violation of Article 6 § 1 of the Convention, finding that, on account in particular of the central role played by the convening officer in the organisation of the court martial, the applicant’s misgivings about the independence and impartiality of the tribunal which had dealt with his case had been objectively justified. It noted in particular that the convening officer had played a central role in the applicant’s prosecution and had been closely linked to the prosecuting authorities, in that inter alia he had decided which charges should be brought, appointed the members of the court-martial board and the prosecuting and defending officers and secured the attendance of witnesses at the hearing. The question therefore arose whether the members of the court-martial were sufficiently independent of him and whether the organisation of the trial offered adequate guarantees of impartiality. In this respect, the Court noted that all the members of the court-martial were military personnel subordinate in rank to the convening officer who, as confirming officer, had also the power to vary the sentence imposed. |
1,038 | Proceedings to divest individuals of their legal capacity | II. RELEVANT DOMESTIC LAW 57. The relevant provisions of the Family Act ( Obiteljski zakon, Official Gazette nos. 116/2003, 17/2004, 136/2004 and 107/2007) read: Section 159 “(1) An adult who, on account of mental illness or other reasons, is unable to care for his or her own needs, rights and interests, or who presents a risk to the rights and interests of others, shall be partly or completely divested of legal capacity by a court of law in non-contentious proceedings. (2) Before adopting a decision under subsection 1 of this section, a court shall obtain the opinion of a medical expert concerning the health condition of the person concerned and the effect of that condition on his or her ability to protect all or individual personal needs, rights and interests and whether it could put at risk the rights and interests of others ....” Section 161 “(1) A social welfare centre shall initiate court proceedings when it assesses that, on the grounds set out in section 159(1) of this Act, there is a need to divest a person of legal capacity either completely or in part. (2) A social welfare centre shall appoint a special guardian to a person in respect of whom the proceedings for divesting him or her of legal capacity have been instituted ...” Section 162 “The competent social welfare centre shall place under guardianship a person ... divested of legal capacity ...” Section 179 (1) The guardian shall care for the person and his or her rights, obligations and well-being with due diligence, manage his or her assets and take measures aimed at enabling the ward to have an independent professional and personal life. ...” Section 184 “(1) The guardian represents the ward. ...” Section 185 “In order to take more important measures concerning the person, personal status or health of the ward, the guardian shall obtain prior consent from a social welfare centre.” COURT PROCEEDINGS Section 315 “(1) Where a decision alters the personal status of a party or his or her rights and obligations, such a decision comes into effect when it becomes final.” ...” Section 316 “An appeal may be lodged against a decision adopted at first instance where this Act does not provide otherwise. ...” PROCEEDINGS FOR DIVESTING AND RESTORING LEGAL CAPACITY Section 326 “(1) A court shall invite to a hearing the requesting party, the person concerned, his or her guardian and a representative of a social welfare centre. (2) Persons mentioned in subsection 1 and a social welfare centre may participate in the presentation of evidence, hearings and the presentation of the outcome of the entire proceedings. (3) A court shall try to hear the person concerned. Where that person has been placed in a psychiatric or social institution, he or she shall be heard in that institution. (4) A court may decide not to invite and hear the person concerned where it could be detrimental for that person or where it is not possible to hear that person in view of his or her mental impairment and health condition.” Section 329 (1) A court decision divesting someone of legal capacity shall be served on the requesting party, the person concerned, his or her guardian and a social welfare centre. (2) The court is not obliged to serve the decision on the person concerned where he or she cannot understand the legal consequences of that decision or where it would be detrimental to his or her health. ...” 58. The relevant part of section 190 of the Social Welfare Act (Official Gazette nos. 73/1997, 27/2001, 59/2001, 82/2001, 103/ 2003 and 44/2006, Zakon o socijalnoj skrbi ) provides: “(1) An adult accommodated on the basis of a decision by a social welfare centre is obliged to pay for his or her accommodation, up to the full price, using all of his or her income and monetary assets. ...” 59. Section 428(a) of the Civil Procedure Act ( Zakon o parničnom postupku ) enables an applicant in respect of whom the European Court of Human Rights has found a violation of the Convention or its Protocols to request, within 30 days of the Court’s judgment becoming final, the re ‑ opening of the domestic proceedings in question. In the new proceedings the domestic courts are obliged to follow the reasons given in the Court’s judgment. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 8 OF THE CONVENTION IN RESPECT OF THE PROCEEDINGS DIVESTING THE FIRST APPLICANT OF LEGAL CAPACITY 60. The first applicant complained that the manner in which the proceedings divesting her of legal capacity had been conducted violated her right to a fair trial and to respect for her private life. She relied on Article 6 § 1 and Article 8 of the Convention, the relevant part of which provides: Article 6 § 1 “1. In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ...” Article 8 “1. Everyone has the right to respect for his private ... life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 1. Exhaustion of domestic remedies (a) The parties’ arguments 61. The Government argued that the first applicant had failed to exhaust domestic remedies because she had not lodged a constitutional complaint in the proceedings with regard to her legal capacity. Had she done so, the Constitutional Court would have invited her guardian to give her consent to such a complaint and, had the guardian given her consent, the Constitutional Court would have examined the complaint on the merits. 62. The first applicant argued that a constitutional complaint was not an effective remedy because it depended on the discretion of a guardian and that the Constitutional Court sometimes took more than two years after the lodging of a constitutional complaint to ask for a guardian’s consent. In any event, the decision divesting the first applicant of legal capacity had not been served on her, so she had been unable to use any remedies against it. (b) The Court’s assessment 63. The rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring a case against a State to use first the remedies provided by the national legal system, thus allowing States the opportunity to put matters right through their own legal systems before being required to answer for their acts before an international body. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged; there is no obligation to have recourse to remedies which are inadequate or ineffective (see, among many other authorities, Akdivar and Others v. Turkey, 16 September 1996, §§ 65-67, Reports of Judgments and Decisions 1996-IV; and Demopoulos and Others v. Turkey (dec.), nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04, § 70, ECHR 2010-...). 64. Remedies the use of which depends on the discretionary powers of public officials and which are, as a consequence, not directly accessible to the applicant cannot be considered as effective remedies within the meaning of Article 35 § 1 of the Convention (see Tumilovich v. Russia (dec.), no. 47033/99, 2 June 1999; Gurepka v. Ukraine, no. 61406/00, § 60, 6 September 2005; and Tănase v. Moldova [GC], no. 7/08, § 122, ECHR 2010-...). 65. As to the present case, the Court notes firstly that the first applicant was not informed of the proceedings initiated before the I. Municipal Court with a view to divesting her of legal capacity and was never given an opportunity to participate in these proceedings, but was represented by a guardian ad litem, who appears to have had no contact with her. 66. Under the relevant procedural rules, before lodging a constitutional complaint an applicant has first to exhaust all previous remedies. Thus, the first applicant should first have lodged an appeal against the first-instance decision of the I. Municipal Court. However, the decision of the I. Municipal Court divesting the first applicant of her legal capacity was never served on her and she was therefore unable to use any remedies against it. 67. Furthermore, had the first applicant lodged a constitutional complaint, the Constitutional Court would not have examined it before obtaining the consent of the first applicant’s guardian. Although a guardian ad litem is not a public official, the Court still considers that in these circumstances it cannot be said that the remedies relied on by the Government were accessible to the first applicant. It follows that the Government’s objection must be dismissed. 2. Compliance with the six-month time-limit 68. The Government argued that the first applicant had lodged her application with the Court out of the six-month time-limit, because she had received a decision on appointing D.P.D. as her special guardian on 20 June 2008. 69. The first applicant argued that the only relevant decision was that adopted by the I. Municipal Court on 21 August 2008. 70. The Court notes that the last decision in connection with the proceedings whereby the first applicant was divested of her legal capacity was adopted by the I. Municipal Court on 21 August 2008. The present application was lodged with the Court on 15 January 2009. It follows that the Government’s objection must be rejected. 3. Conclusion 71. The parties did not dispute the applicability of Article 6, under its “civil” head, to the proceedings at issue concerning the first applicant, and the Court does not see any reason to hold otherwise (see Winterwerp v. the Netherlands, 24 October 1979, Series A no. 33, § 73; and Shtukaturov v. Russia, no. 44009/05, § 64, 27 March 2008). 72. The Court notes that the first applicant’s complaints under Article 6 § 1 and Article 8 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3(a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1. The parties’ arguments 73. The first applicant argued that the proceedings concerning her legal capacity were unfair because she had not participated in them. Nor had she been given an opportunity to participate in the proceedings whereby the special guardian appointed to represent her in the court proceedings had been selected. The same body, the I. Centre for Social Welfare, had appointed a guardian against her will and had instituted the proceedings to divest her of legal capacity before the I. Municipal Court. The authorisation she had given to her daughter, entitling the latter to represent her in these proceedings at a time when she still had legal capacity, had been ignored and the submissions made by her daughter in these proceedings, although containing arguments relevant to assessment of her condition, had been ignored. The decision divesting her of legal capacity had not been served on either her or her daughter. All this had been in contravention of the Family Act, which required that an individual concerned by proceedings to divest him or her of legal capacity was to be heard in the proceedings. 74. The decision divesting her of legal capacity contained only one and a half page and was not adequately reasoned. 75. The consequence of the decision to divest her of legal capacity was that she had completely lost her autonomy and had no right to make any decisions concerning her life. Furthermore, her daughter, as her sole living close relative, had not been appointed as her guardian and had also been completely excluded from taking any decision as regards the first applicant’s life. There had been no reason to divest her completely of legal capacity, since she had never in any manner put at risk her own or others’ interests. 76. The Government argued that the measure to divest the first applicant of her legal capacity had been adopted in proceedings conducted in accordance with the relevant provisions of domestic law, and that she had been represented by her niece as her special guardian, which had ensured the adversarial nature of the proceedings. The guardian attended the hearings and had requested that the first applicant be seen by a medical expert. 77. Furthermore, the first applicant had not lodged an appeal against the decision appointing D.P.D. as her special guardian, although that decision had been served on her and she must have known that it concerned the proceedings to divest her of legal capacity. 78. The measure as such was based on the relevant provisions of the Family Act, pursued the legitimate aim of protecting the interests of the first applicant as a demented and disoriented person, incapable of caring for her interests, and was proportionate since no other, less stringent measure, would suffice in the circumstances. The decision was based on a report by the Centre, a statement given by D.P.D. and the report by an expert in psychiatry, who established that the first applicant, owing to her various health problems, was unable to care for her interests. 2. The Court’s assessment (a) General principles 79. In the context of Article 6 § 1 of the Convention, the Court assumes that in cases involving a mentally ill person the domestic courts should also enjoy a certain margin of appreciation. Thus, for example, they can make the relevant procedural arrangements in order to secure the good administration of justice, protection of the health of the person concerned, etc. However, such measures should not affect the very essence of the applicant’s right to a fair hearing as guaranteed by Article 6 of the Convention. In assessing whether or not a particular measure, such as exclusion of the applicant from a hearing, was necessary, the Court will take into account all relevant factors (such as the nature and complexity of the issue before the domestic courts, what was at stake for the applicant, whether his appearance in person represented any threat to others or to himself, etc. (see Shtukaturov, cited above, § 68)). In particular, the Court considers that stricter scrutiny is called for where measures which have such a strong impact on one’s private life as divesting one of legal capacity are at stake. 80. Furthermore, according to the Court’s established case-law, reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case. Although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument (see García Ruiz v. Spain, 21 January 1999, Reports 1999-I, § 26, and Helle v. Finland, 19 December 1997, Reports 1997-VIII, §§ 59). (b) Application of these principles in the present case 81. As regards the present case, the Court notes that it is not disputed that the first applicant was not notified of the proceedings concerning her legal capacity before the I. Municipal Court. Further, she was neither summoned by the Municipal Court in order to give evidence nor seen by the judge conducting the proceedings. The Court concludes that the first applicant was unable to participate personally in the proceedings before the I. Municipal Court in any form. It remains to be ascertained whether, in the circumstances, this was compatible with the requirements of Articles 6 and 8 of the Convention. 82. The Government argued that, according to the relevant provisions of the Family Act, the fact that the first applicant was not heard in the proceedings concerning her legal capacity had been lawful in domestic terms. However, the crux of the complaint is not the domestic legality but the “fairness” of the proceedings from the standpoint of the Convention and the Court’s case-law (see Shtukaturov, cited above, § 70) and ensuring the relevant procedural safeguards when taking a decision seriously affecting the applicant’s private life. 83. The Court has already held in its above-cited Shtukaturov judgment: “72. ... the Court notes that the applicant played a double role in the proceedings: he was an interested party, and, at the same time, the main object of the court’s examination. His participation was therefore necessary not only to enable him to present his own case, but also to allow the judge to form her personal opinion about the applicant’s mental capacity (see, mutatis mutandis, Kovalev v. Russia, no. 78145/01, §§ 35-37, 10 May 2007).” 84. The same is true in respect of the first applicant in the present case. The Court considers that judges adopting decisions with serious consequences for a person’s private life, such as those entailed by divesting someone of legal capacity, should in principle also have personal contact with those persons. 85. The Court is aware of the relevance of medical reports concerning persons suffering from impairment to their mental capacities and agrees that any decision based on the assessment of mental health has to be supported by relevant medical documents. However, at the end of the day, it is the judge and not a physician, albeit a psychiatrist, who is to assess all relevant facts concerning the person in question and his or her personal circumstances. It is the function of the judge conducting the proceedings to decide whether such an extreme measure is necessary or whether a less stringent measure might suffice. When such an important interest for an individual’s private life is at stake a judge has to balance carefully all relevant factors in order to assess the proportionality of the measure to be taken. The necessary procedural safeguards require that any risk of arbitrariness in that respect is reduced to a minimum. 86. The psychiatrist who saw the first applicant concluded that she was a gravely ill person, bedridden, completely dependent on the help of others, demented and that meaningful contact with her was not possible, suffering form severe impairment of global cognitive ability, with an unfavourable prognosis for the future (see above, § 35). She also found that the first applicant was incapable of caring for herself and her rights and interests and recommended that the court divest her entirely of legal capacity. However, in the Court’s view it would still be preferable for the judge conducting the proceedings to verify that these conclusions were not arbitrary; to hear witnesses as well as the doctor. In particular, it was for the judge to make any conclusions as regards the issue of divesting the first applicant of her legal capacity. 87. In this connection the Court notes that, even if the psychiatrist examined the first applicant of 18 July 2008, the medical documentation which served as a basis for the psychiatric report dated from 2002. In this respect it should be noted that the second applicant submitted that the psychiatrist saw the first applicant for only twenty minutes, at a time when the first applicant was tired and under the influence of medication. She also drew attention to the fact that both letters, the first of 14 August 2008 and the second of 22 August 2008, by which the first applicant sought to be represented by the second applicant were signed by the first applicant with her full name. 88. The Court takes note of the second applicant’s submissions to the I. Municipal Court that D.P.D. had not seen the first applicant. While it is true that the reasoning in the decision to divest the first applicant of her legal capacity also cited the statement given by D.P.D. concerning the first applicant’s condition, it was exactly D.P.D. who asked the court to carry out a medical examination of the first applicant. 89. The Court also notes that on 14 August 2008 the first applicant authorised the second applicant to represent her in the proceedings at issue. At that time the first applicant still had legal capacity and according to domestic law her authorisation was thus legally valid, irrespective of the fact that a special guardian had already been appointed. However, the second applicant was not informed of the hearing held on 21 August 2008 before the I. Municipal Court and her submissions, although containing important arguments, were not addressed by that court in any manner. In addition, the decision divesting the first applicant of her legal capacity was not served on her. 90. As regards the reasons adduced by the national authorities for divesting the first applicant of her legal capacity, the Court notes that the I. Municipal Court based its decision on the findings of a medical expert stating that, on account of her mental illness, she was not capable of caring for herself, her rights and interests, was demented and was entirely dependant on the care and help of others. In this connection the Court stresses that it is legitimate to provide care for the sick or elderly, or persons with diminished capacity who are unable to care for themselves. It is, however, an entirely different thing to deprive someone of legal capacity. Divesting someone of legal capacity entails serious consequences. The person concerned is not able to take any legal action and is thus deprived of his or her independence in all legal spheres. Such persons are put in a situation where they depend on others to take decisions concerning various aspects of their private life, such as, for example, where to live or how to dispose of their assets and all income. Numerous rights of such persons are extinguished or restricted. For example, such person is not able to make a will, cannot be employed, and cannot marry or form any other relationship creating consequences for their legal status, etc. 91. In order to ensure that the sick and elderly are properly cared for, the State authorities have at their disposal other means than divesting such persons of their legal capacity. Divesting someone of legal capacity is a very serious measure which should be saved for exceptional circumstances. 92. Finally, the Court reiterates that it must always assess the proceedings as a whole, including any decisions of the appeal courts (see C.G. v. the United Kingdom, no. 43373/98, § 35, 19 December 2001). The Court notes that in the present case the decision divesting the first applicant of legal capacity was not served on her, despite the fact that at that time she still preserved legal capacity since the decision in question had not yet become final. However, by failing to inform the first applicant of that decision, the Municipal Court also deprived her of the possibility of using any remedies against it. Therefore, any possible defects in the proceedings before the first-instance court could not be remedied at further instance. 93. The Court finds also that the fact that the judge who divested the first applicant of legal capacity completely ignored the second applicant’s arguments in his assessment of the first applicant’s condition, although the first applicant had authorised the second applicant to represent her in the proceedings at a time when she still had legal capacity, ran contrary to the guarantees of a fair hearing and also deprived the first applicant of adequate procedural safeguards in proceedings where a decision adversely affecting her private life was adopted. 94. There has therefore been a violation of Article 6 § 1 of the Convention. In view of that finding, the Court considers that no separate issue remains to be examined under Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION CONCERNING THE INSTITUTION OF COURT PROCEEDINGS WITH A VIEW TO DIVESTING THE SECOND APPLICANT OF LEGAL CAPACITY 95. The second applicant, relying on Article 8 of the Convention complained that the institution of proceedings with a view to divesting her of legal capacity had violated her right to respect for her private life. A. Admissibility 96. The Government argued that any complaint in respect of the proceedings concerning the second applicant’s legal capacity was premature since these proceedings were still pending. 97. The Court notes that the second applicant is complaining that the institution of court proceedings with a view to divesting her of legal capacity amount to an unjustified interference with her right to respect for her private life. In view of the nature of this complaint, the Court considers that the question whether the second applicant’s complaint under Article 8 of the Convention in connection with the institution of proceedings to divest her of legal capacity is premature because these proceedings are still pending is closely linked to the merits of this complaint. It should therefore be joined to the merits. 98. The Court further considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3(a) of the Convention. Moreover, it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ arguments 99. The second applicant argued that there had been no need to appoint a guardian for her and to institute the court proceedings to divesting her of legal capacity, since she had been entirely capable of caring for her needs and interests. She challenged the Centre’s arguments for initiating those proceedings, namely that in 2006 she had refused to leave her home and to communicate with others for several days; that in 1994 she had been treated in a psychiatric institution; that her attitude towards her mother had been overly possessive; that she had constantly complained about the treatment of her mother in the Caritas Home; that she had repeatedly made unrealistic requests concerning her mother; and that she had changed the lawyers who represented her on several occasions. 100. As regards her complaints about her mother’s treatment in the Caritas Home, the second applicant submitted that at the time that same Home had been the subject of widespread criticism by many persons; this had been reported in the media, and she enclosed press clippings. Furthermore, she did not agree that the love and care she had been showing her mother could be a sign of mental illness. In her view, the proceedings to divest her of legal capacity had been instituted because of her complaints against the Caritas Home and her opposition to the Centre’s actions with regard to her mother. 101. The Government argued that the rights of the second applicant in the proceedings at issue had been adequately protected since a special guardian had been appointed for her and the second applicant had also been represented by a lawyer of her own choice. She had been invited to every hearing and given an opportunity to present her arguments. Her mental condition had been assessed by an expert in psychiatry. 2. The Court’s assessment (a) Whether there has been an interference 102. The Court considers that a measure such as divesting one of legal capacity amounts to a serious interference with that person’s private life. In this connection the Court notes that the mere institution of these proceedings already has serious consequences. Thus, a special guardian is appointed for the person concerned and represents him or her in the court proceedings, and the person is subject to various assessments, including a psychiatric report, all of which concern one’s private life. 103. Further, in the present case the guardian appointed to the second applicant was given a wide range of powers, such as representing her in all personal matters and matters concerning her property, managing her assets and taking proper care of her person, rights, obligations and well-being. The Court therefore considers that the institution of the proceedings with a view to divesting the second applicant of legal capacity amounted to an interference with her private life within the meaning of Article 8 of the Convention. 104. Any such interference with the right to respect for one’s private life will constitute a violation of Article 8 unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 of this provision and can be regarded as “necessary in a democratic society”(see Anayo v. Germany, no. 20578/07, § 63, 21 December 2010; and Mikolajová v. Slovakia, no. 4479/03, § 58, 18 January 2011). (b) Whether the interference was based on law, pursued a legitimate aim and was necessary in a democratic society 105. In the circumstances of the present case the Court considers that the issues of the legality of the interference, the legitimate aim pursued and its necessity are closely interconnected, and it will examine them together. 106. As to the legal basis for the interference concerned, the Court notes that section 159 of the Family Act provides that an adult unable to care for his or her own needs, rights and interests, or who presents a risk to the rights and interests of others on account of mental illness or other reasons may be partially or completely divested of legal capacity. 107. In the Court’s view, in order to be able to institute such proceedings a social welfare centre (or any other authority) should be able to present convincing evidence that the person concerned is either unable to care for his or her own needs, rights and interests, or presents a risk to the rights and interests of others. This cannot be done on the basis of general statements but only on the basis of specific facts. 108. In the present case the Centre claimed that the second applicant was unable to protect her rights and interests, without relying in its statement on any specific fact. The general nature of the statements made by the Centre raises doubts as to the compliance with the statutory requirements for the institution of the proceedings to divest the second applicant of legal capacity (see above, § 47). 109. The Court considers that in deciding whether the proceedings to divest a person of capacity were proportionate, the national authorities are to be recognised as having a certain margin of appreciation. It is in the first place for the national authorities to evaluate the evidence adduced before them in a particular case; the Court’s task is to review under the Convention the decisions of those authorities (see, mutatis mutandis, Winterwerp v. the Netherlands, 24 October 1979, § 40, Series A no. 33; Luberti v. Italy, 23 February 1984, Series A no. 75, § 27; and Shtukaturov v. Russia, no. 44009/05, § 67, 27 March 2008). In this connection the Court would like to stress once again that strict scrutiny is called for where measures that have such adverse effect on one’s personal autonomy are at stake. In this connection the Court is mindful that divesting someone of legal capacity entails grave consequences for various spheres of that person’s life. 110. The Government in their submissions before the Court and the Centre in its request to the I. Municipal Court both stressed that the purpose of instituting the proceedings to divest the second applicant of legal capacity was to ensure the protection of her interests through the institution of guardianship. 111. In the Court’s view, however, the institution of such proceedings, which oblige the person concerned to submit himself or herself to court proceedings in which he or she is represented by a guardian and where various aspects of his or her private life are examined and questioned and that person’s mental condition, behaviour and personality are assessed, is justified where convincing evidence exists that a measure to divest that person of legal capacity is an adequate answer to the situation at issue. 112. As regards the second applicant’s mental health, the Court notes that it is true that she was twice hospitalised in a psychiatric ward, the first time in 1994 and the second in 2006. The discharge letter of 20 December 2006 states that she had visibly recovered physically, had reacted positively to therapy, that the psychopathology for which she had been hospitalised had completely ceased and that there was an optimistic prognosis for further treatment (see above, § 44). 113. As regards the psychiatric report commissioned for the court proceedings to divest the second applicant of legal capacity, the Court notes firstly that the report, which is clearly negative with regard to the applicant’s condition, was drawn up by a psychiatrist who had not previously treated the applicant and who held only a telephone conversation with her. The Court is sceptical as to whether a person’s mental condition could be assessed with sufficient certainty after only a single telephone conversation, albeit of one hour, in particular given the significance of such a report in the present case. 114. The Court notes that under section 161 taken together with section 159 of the Family Act a social welfare centre shall institute the proceedings for divesting a person of legal capacity where it is shown that that person, on account of mental illness or other reasons, is unable to care for his or her own needs, rights and interests, or who presents a risk to the rights and interests of others. 115. The applicant in the present case, when heard by the national authorities, explained that she lived alone and had taken care of all her needs. She stressed that she regularly paid all her bills, was seeing regularly her general physician, had taken care of her meals and organised her social life. Further to her statements, the Court notes that there is no indication, either before the institution of the proceedings in question or during them, of specific damage that the second applicant had committed against her own interests or the interests of others which would warrant divesting her of legal capacity. 116. Against the above background, the Court finds that in the circumstances of the present case the institution of the court proceedings with a view to divesting the applicant of legal capacity did not observe the procedure and requirements prescribed by law, did not pursue a legitimate aim and was not necessary in a democratic society, and dismisses the Government’s objections as to the exhaustion of domestic remedies. 117. There has accordingly been a violation of Article 8 in that respect. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION CONCERNING THE FIRST APPLICANT’S PLACEMENT IN A CARITAS HOME 118. Relying on Article 8 of the Convention, the applicants also complained about the refusal to place the first applicant in a single room in the Caritas Home and about the limitation on the frequency of visits allowed. Admissibility 1. The parties’ arguments 119. The applicants argued that they were not allowed to place the first applicant in a single room in the Caritas Home, although that would have been beneficial for her health. Furthermore, visits in multi-occupancy rooms were limited to one hour a day, which prevented the applicants from spending more time together; it also prevented the second applicant from spending more quality time with the first applicant, since the first applicant had been the only person who visited her. 120. The Government argued that the applicants were able at all times to enter into a private agreement with the Caritas Home with a view to placing the first applicant in a single room at their own expense. As regards contacts between the applicants, these were structured in such a way that the second applicant was able to visit the first applicant for an hour a day in her room and otherwise in the communal premises of the Caritas Home between 9 a.m. and 7 p.m. or 8 p.m. in the winter and summer periods respectively. The second applicant had been spending almost entire days with the first applicant at the Caritas Home. 2. The Court’s assessment 121. The Court notes that in July 2006 the first applicant was placed in the Caritas Home at the request of her daughter, the second applicant, who claimed that, owing to the special needs caused by her mother’s illness, and her own illness, she was no longer able to care for her mother alone. Shortly afterwards, in August 2006 the first applicant’s right to care outside her family was established and she continued to reside in the Caritas Home. She was accommodated in a multi-occupancy room with three other persons and until May 2008 the second applicant was able to spend whole days with her. 122. The second applicant made frequent requests that her mother be placed in a single room, offering to pay the difference between the amount covered by the State and the full price for a single room. However, this request was denied on the ground that such an arrangement was not possible; she could only ask that her mother be placed in a single room on the basis of a private contract with the Caritas Home, and then pay the full price herself. 123. In assessing whether a fair balance has been struck as regards the measure adopted, the Court reiterates that in choosing the most appropriate manner in order to comply with their obligations under the Convention, the States enjoy a certain margin of appreciation. In matters concerning its social policy this margin has been recognised as being quite wide (see, mutatis mutandis, James and Others v. the United Kingdom, 21 February 1986, § 46, Series A no. 98; and Şerife Yiğit v. Turkey [GC], no. 3976/05, § 100, ECHR 2010 ‑ ...). Furthermore, effective protection of respect for private and family life cannot require the national authorities to enable persons benefiting from State assistance to have a single room in an institution caring for them, unless prevailing health or other relevant reasons require it. 124. The applicants never explained on what exact grounds they sought a single room for the second applicant and why her placement in a room with three other persons was incompatible with her right to respect for her private and family life. The second applicant repeatedly invoked health grounds in her requests before the national authorities and the Caritas Home. However, she never gave any details concerning such grounds nor did she support her claim with any relevant medical opinion. Thus, the applicants failed to present any convincing reasons for placing the first applicant in a single room. 125. By placing the first applicant in the Caritas Home at the partial expense of the State, the national authorities satisfied their duty to provide the first applicant with adequate social care. The fact that she is placed in a multi-occupancy room and that visits in such rooms might be limited to an hour a day cannot be said to be disproportionate and in contravention of the applicants’ right to respect for their private and family life, in particular in view of the fact that visits in communal premises are allowed from 9 a.m. to 7 p.m. and 8 p.m. in the winter and summer periods respectively (see paragraph 24 above). 126. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 127. The applicants further complained that the decision to pay the first applicant’s pension directly to the Caritas Home and her inability to freely dispose of her assets had violated her right to peaceful enjoyment of her possessions. They relied on Article 1 of Protocol No. 1, which provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 1. The parties’ arguments 128. The applicants argued that by ordering that the first applicant’s pension was to be used to cover the costs of her accommodation in the Caritas Home, and by preventing her, as a person divested of legal capacity, from freely disposing of her pension and other assets, the State had violated her right to peaceful enjoyment of her possessions. 129. The Government argued that the right of the first applicant to care outside her family had been established on a request by her daughter, the second applicant, and that ordering the first applicant to bear part of the costs of her accommodation in a home had been based on the Social Welfare Act, since she was in receipt of a pension. However, the first applicant could have sought termination of that arrangement at any time. 130. The decision that the first applicant was to bear part of the costs of her accommodation was proportionate, since all her needs had been satisfied in the Caritas Home. The State had still been paying more than half of the costs of the first applicant’s accommodation. (a) Payment of the first applicant’s pension to the Caritas Home 131. The Court notes that the decision of 31 August 2006 established the first applicant’s right to care outside her family. However, she was still ordered to bear the costs of her accommodation, since she was in receipt of a pension. The difference between the full costs of the first applicant’s accommodation and the amount of her pension, the former being higher, has been covered by the State. 132. The Court notes that neither the first nor the second applicant used any remedies against that decision. Therefore, the decision of 31 August 2006 which arguably represented an interference with the first applicant’s right to peaceful enjoyment of her possession was the final decision taken by the national authorities in this respect. However, the present application was lodged with the Court on 15 January 2009. 133. It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. (b) The first applicant’s inability to dispose of her assets 134. The Court notes that the first applicant’s inability to dispose of her assets is a consequence of the decisions to divest her of legal capacity. For this reason the Court considers that this part of the application must be declared admissible. B. Merits 135. The Court notes that it has addressed the issue of the proceedings divesting the first applicant of legal capacity under Article 6 of the Convention and that the first applicant will be able to seek that the proceedings concerning her legal capacity be reopened. 136. Therefore the Court considers that there is no need to examine separately the complaint under Article 1 of Protocol No. 1 to the Convention. IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 137. The applicants complained further that they had no effective domestic remedy at their disposal as regards their Convention complaints. They relied on Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 1. Article 13 in connection with Article 6 and 8 of the Convention as regards the proceedings divesting the applicants of legal capacity 138. The Court considers that this complaint is closely linked to that concerning Article 6 and Article 8 of the Convention as regards the proceedings divesting the applicants of legal capacity, and must also therefore be declared admissible. 2. Article 13 in connection with the complaint under Article 1 of Protocol No. 1 concerning the first applicant’s inability to dispose of her assets 139. This complaint, being closely related to the complaint under Article 1 of Protocol No. 1 which the Court has declared admissible, must therefore also be declared admissible. 3. Article 13 in connection with the remaining complaints under Article 8 of the Convention and under Article 1 of Protocol No. 1 140. The Court notes that these complaints have been declared inadmissible and that Article 13 has no autonomous standing. It follows that the complaints under Article 13, in so far as they are related to the complaints under the substantive Articles of the Convention which have been declared inadmissible as manifestly ill-founded, must also be rejected as manifestly ill-founded in accordance with Article 35 §§ 3(a) and 4 of the Convention. B. Merits 1. Article 13 in connection with Article 6 and 8 of the Convention as regards the proceedings divesting the applicants of legal capacity 141. The applicants argued that they were unable to use any remedy in the proceedings concerning their legal capacity. As regards the first applicant, the judge conducting the proceedings had not allowed the second applicant to represent the first applicant in those proceedings and the first ‑ instance decision had not been served on them. As regards the second applicant, she had at her disposal no means to prevent the national authorities to institute the proceedings for divesting her of legal capacity. 142. The Government maintained that the first applicant could have lodged an appeal against the decision appointing D.P.D. as her guardian and filed a constitutional complaint. 143. The Court is of the opinion that this complaint, although somewhat rephrased, is essentially the same as those already examined under Article 6 § 1 and Article 8 of the Convention. Having regard to its findings in relation to these provisions, the Court considers that the applicants’ complaint under Article 13 does not require a separate examination on the merits (see Salontaji-Drobnjak, cited above, § 147). 2. Article 13 in connection with the complaint under Article 1 of Protocol No. 1 concerning the first applicant’s inability to dispose of her assets 144. As already stated above, the first applicant will have the possibility of seeking the reopening of the proceedings at issue in which the issue of her ability to dispose of her assets will also be addressed. Having regard to this the Court concludes that this complaint does not require a separate examination. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 145. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 146. The first applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage and the second applicant EUR 10,000 on the same account. 147. The Government deemed the sums claimed excessive and unsubstantiated. 148. As regards the first applicant, the Court notes that section 428(a) of the Civil Procedure Act provides for the reopening of domestic proceedings if the Court has found a violation of the Convention and in view of that possibility the Court considers that in the circumstances of the present case the finding of a violation constitutes sufficient redress. 149. As regards the second applicant, the Court considers that she must have suffered non-pecuniary damage as a result of the institution of the proceedings to divest her of legal capacity. Making its assessment on an equitable basis, the Court awards the second applicant EUR 2,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses 150. The applicants also claimed EUR 4,400 for the costs and expenses incurred before the Court. 151. The Government contested the claim. 152. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and have been reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,000 for the proceedings before the Court, plus any tax that may be chargeable to the applicants on this amount. C. Default interest 153. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 6 § 1 (right to a fair trial) of the Convention in respect of the first applicant, finding that she had been deprived of adequate procedural safeguards in proceedings resulting in a decision adversely affecting her private life. As regards in particular the reasons adduced by the domestic court for its decision, the Court could not but observe that in order to ensure proper care for the ill and older, the State authorities had at their disposal much less intrusive measures than divesting them of legal capacity. |
1,034 | Prohibition of slavery and forced labour (Article 4 of the Convention) | II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A. Relevant domestic law 15. Article 7 of the Federal Constitution guarantees human dignity in the following terms. Article 7 “Human dignity must be respected and protected.” 16. Article 10 of the Constitution enshrines the right to life and to individual freedom. Article 10 “Every human being shall have the right to life. The death penalty shall be prohibited. Every human being shall have the right to individual freedom, and in particular the right to physical and mental integrity and freedom of movement. Torture and all other forms of cruel, inhuman or degrading treatment or punishment shall be prohibited.” 17. The Swiss Criminal Code of 21 December 1937 defines as follows the principles governing the execution of custodial sentences and measures. Article 74 – Principles “Prisoners and persons subject to custodial measures shall be entitled to respect for their dignity. The exercise of their rights may be restricted only to the extent required by detention and by the requirements of collective living in the institution.” Article 75 – Execution of custodial sentences/Principles “1. The execution of the custodial sentence should improve the prisoner’s social skills, and in particular his or her ability to live in a law-abiding manner. It must correspond as closely as possible to the conditions of normal life, provide the prisoner with the necessary support, combat the adverse effects of detention and make proper allowance for the need to protect the community, the staff and other inmates. 2. ... 3. The rules of the institution shall provide for a sentence plan to be drawn up with each prisoner. This shall cover, among other elements, the support provided, the possibility of working and receiving training or further training, redress for the damage caused, relationships with the outside world and preparations for release. 4. Prisoners must participate actively in efforts to promote resocialisation and in preparations for their release. 5. The specific concerns and needs of each prisoner must be taken into consideration, regard being had to the prisoner’s gender.” Article 81 – Execution of custodial sentences/Work “1. Prisoners shall be required to work. The work must be matched as closely as possible to prisoners’ abilities, training and interests. 2. Prisoners who consent to such an arrangement may work for a private employer.” Article 90 – Execution of custodial measures “... 3. If the person concerned is fit to work he or she must be prompted to do so, provided that his or her treatment or care within the institution requires or permits it. In such cases, Articles 81 to 83 shall apply by analogy.” 18. Article 103 of the Order of 6 December 2006 issued by the Canton of Zürich concerning the execution of sentences ( Justizvollzugsverordnung ) defines the requirement to work as follows: “Requirement to work ... 103. 1 In the context of the execution of custodial sentences and measures, whether in a closed setting or on conditional release, convicted persons shall be required to perform the work assigned to them. In assigning work account shall be taken, in so far as possible and reasonable, of individuals’ abilities. ...” B. Relevant domestic practice 19. A delegation of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) made its most recent visit to Switzerland in October 2011. Among other institutions, the delegation visited Pöschwies, Bochuz and Bostadel Prisons. In its report to the Swiss Federal Council following the visit to those prisons, the CPT found as follows. “58. Except where a derogation has been obtained, prisoners detained under the ordinary prison regime were required to work, usually full-time, in one of the eleven workshops in Bochuz Prison (printing, painting, electrical, carpentry, etc.) or one of the nine workshops in Bostadel Prison (carpentry, metallurgy, etc.). Special arrangements were possible for prisoners over the age of 65 (possibility of working part-time in Bochuz Prison, for instance). However, some older prisoners whom the delegation met in the course of the visit voiced considerable concern at the legal requirement to work beyond the retirement age for persons outside prison or those with severely reduced mobility. The CPT would like to receive comments from the Swiss authorities in this regard .” [Emphasis in original.] 20. In its reply of 10 October 2012, the Swiss Federal Council stated as follows. “In accordance with Article 81 of the Swiss Criminal Code (CP, RS 311.0), prisoners are required to work. The requirement to work was retained in the Criminal Code following the revision of the general provisions which came into force on 1 January 2007, as it is an appropriate and necessary tool enabling prisoners to maintain their personal and vocational skills. It was also felt to be essential for keeping order and ensuring the financial management of prisons. The requirement to work concerns all inmates irrespective of age. Needless to say, it applies only to those prisoners who are actually capable of working. The work must be matched as far as possible to the abilities, training and interests of the prisoner concerned (Article 81 § 1 of the Criminal Code). Work – which, under Article 83 of the Criminal Code, also creates entitlement to payment – should be taken to mean not just gainful employment in the narrow sense but also, for instance, the care of the prisoner’s own children (inside or outside prison). Furthermore, participation in training and further training courses is considered as work and paid under Article 83 § 3 of the Criminal Code. Under Article 75 § 1 of the Criminal Code, the execution of a custodial sentence should correspond as closely as possible to the conditions of normal life. With regard to prisoners who have reached retirement age, solutions are devised on a case-by-case basis under the above-mentioned provisions. The requirement to work does not apply to all prisoners to an equal extent, but must be tailored, depending on the circumstances, to prisoners’ abilities and especially to their fitness for work and state of health. Persons with physical difficulties are given only light work, usually on a reduced basis. Prisoners who have a medical certificate stating that they are unfit to work are exempted from the obligation to work. The issue of the growing number of prisoners of retirement age has been recognised, although the number is still very small. In 2012 a special wing for retired prisoners was opened in the new Lenzburg Central Prison. The Judicial Enforcements Office of the Canton of Zürich has set up a special project dealing with this issue.” C. International law 21. The relevant provisions of the International Labour Organization Convention concerning Forced or Compulsory Labour 1930 (no. 29), to which Switzerland is a Party, read as follows. Article 1 “1. Each Member of the International Labour Organisation which ratifies this Convention undertakes to suppress the use of forced or compulsory labour in all its forms within the shortest possible period. ...” Article 2 “1. For the purposes of this Convention the term forced or compulsory labour shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily. 2. Nevertheless, for the purposes of this Convention, the term forced or compulsory labour shall not include ... (c) any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations; ...” 22. Recommendation No. R (87) 3 of the Committee of Ministers to the member States on the European Prison Rules is a set of guidelines as to the minimum standards to be applied in prisons. States are encouraged to be guided in legislation and policies by the Rules and to ensure wide dissemination of them to their judicial authorities as well as to prison staff and inmates. They were adopted by the Committee of Ministers on 12 February 1987. 23. On 11 January 2006 the Committee of Ministers adopted a new version of the European Prison Rules (Recommendation Rec(2006)2 – “the 2006 Rules”), noting that the 1987 European Prison Rules needed to be substantively revised and updated in order to reflect developments in penal policy, sentencing practice and the overall management of prisons in Europe. Part I of the 2006 Rules enshrines the following basic principles. Basic principles “1. All persons deprived of their liberty shall be treated with respect for their human rights. 2. Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody. 3. Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed. 4. Prison conditions that infringe prisoners’ human rights are not justified by lack of resources. 5. Life in prison shall approximate as closely as possible the positive aspects of life in the community. 6. All detention shall be managed so as to facilitate the reintegration into free society of persons who have been deprived of their liberty. 7. Co- operation with outside social services and as far as possible the involvement of civil society in prison life shall be encouraged. 8. Prison staff carry out an important public service and their recruitment, training and conditions of work shall enable them to maintain high standards in their care of prisoners. 9. All prisons shall be subject to regular government inspection and independent monitoring. ...” 24. The Commentary on the 2006 Rules makes clear that, in accordance with Rule 2, the loss of the right to liberty should not lead to the assumption that prisoners automatically lose their political, civil, social, economic and cultural rights as well, and that there should be as few restrictions as possible. Any further restrictions should be specified in law and should be instituted only when they are essential for maintaining order, safety and security in prison. The restrictions imposed should not derogate from the 2006 Rules. 25. The Commentary specifies that Rule 5 emphasises the positive aspects of “normalisation”. It adds that, while life in prison can never be the same as life in a free society, active steps should nevertheless be taken to make conditions in prison as close to normal life as possible and to ensure that this normalisation does not lead to inhumane prison conditions. 26. Rule 26 deals with prisoners’ work in general. “ Work 26.1 Prison work shall be approached as a positive element of the prison regime and shall never be used as a punishment. 26.2 Prison authorities shall strive to provide sufficient work of a useful nature. 26.3 As far as possible, the work provided shall be such as will maintain or increase prisoners’ ability to earn a living after release. 26.4 In conformity with Rule 13 there shall be no discrimination on the basis of gender in the type of work provided. 26.5 Work that encompasses vocational training shall be provided for prisoners able to benefit from it and especially for young prisoners. 26.6 Prisoners may choose the type of employment in which they wish to participate, within the limits of what is available, proper vocational selection and the requirements of good order and discipline. 26.7 The organisation and methods of work in the institutions shall resemble as closely as possible those of similar work in the community in order to prepare prisoners for the conditions of normal occupational life. 26.8 Although the pursuit of financial profit from industries in the institutions can be valuable in raising standards and improving the quality and relevance of training, the interests of the prisoners should not be subordinated to that purpose. 26.9 Work for prisoners shall be provided by the prison authorities, either on their own or in co-operation with private contractors, inside or outside prison. 26.10 In all instances there shall be equitable remuneration of the work of prisoners. 26.11 Prisoners shall be allowed to spend at least a part of their earnings on approved articles for their own use and to allocate a part of their earnings to their families. 26.12 Prisoners may be encouraged to save part of their earnings, which shall be handed over to them on release or be used for other approved purposes. 26.13 Health and safety precautions for prisoners shall protect them adequately and shall not be less rigorous than those that apply to workers outside. 26.14 Provision shall be made to indemnify prisoners against industrial injury, including occupational disease, on terms not less favourable than those extended by national law to workers outside. 26.15 The maximum daily and weekly working hours of the prisoners shall be fixed in conformity with local rules or custom regulating the employment of free workers. 26.16 Prisoners shall have at least one rest day a week and sufficient time for education and other activities. 26.17 As far as possible, prisoners who work shall be included in national social security systems.” 27. Rule 105 deals more specifically with work by sentenced prisoners: “ Work by sentenced prisoners 105.1 A systematic programme of work shall seek to contribute to meeting the objective of the regime for sentenced prisoners. 105.2 Sentenced prisoners who have not reached the normal retirement age may be required to work, subject to their physical and mental fitness as determined by the medical practitioner. 105.3 If sentenced prisoners are required to work, the conditions of such work shall conform to the standards and controls which apply in the outside community. ...” 28. The Commentary points out that Rule 105 reflects the important role that work plays in the regime for sentenced prisoners, and emphasises that it should not in any circumstances be an additional form of punishment. Furthermore, Rule 105 is to be read in conjunction with Rule 26 laying down the general rules on work, and all the safeguards contained in Rule 26 apply to sentenced prisoners as well. 29. On 22 May 2015 the United Nations Commission on Crime Prevention and Criminal Justice, meeting in Vienna, adopted a major revision of the Standard Minimum Rules for the Treatment of Prisoners, which had been in force for sixty years (UN Doc. E/CN.15/2015/L.6/Rev.1). The amendments were adopted by the General Assembly on 17 December 2015. Rules 96 to 103 concern work by prisoners. The relevant parts read as follows. “ Rule 96 1. Sentenced prisoners shall have the opportunity to work and/or to actively participate in their rehabilitation, subject to a determination of physical and mental fitness by a physician or other qualified health-care professional. 2. Sufficient work of a useful nature shall be provided to keep prisoners actively employed for a normal working day.” “ Rule 97 1. Prison labour must not be of an afflictive nature. 2. Prisoners shall not be held in slavery or servitude. 3. No prisoner shall be required to work for the personal or private benefit of any prison staff.” “ Rule 98 1. So far as possible the work provided shall be such as will maintain or increase the prisoners’ ability to earn an honest living after release. 2. Vocational training in useful trades shall be provided for prisoners able to profit thereby and especially for young prisoners. 3. Within the limits compatible with proper vocational selection and with the requirements of institutional administration and discipline, prisoners shall be able to choose the type of work they wish to perform.” “ Rule 99 1. The organization and methods of work in prisons shall resemble as closely as possible those of similar work outside of prisons, so as to prepare prisoners for the conditions of normal occupational life. 2. The interests of the prisoners and of their vocational training, however, must not be subordinated to the purpose of making a financial profit from an industry in the prison.” D. Comparative law 30. The Court deemed it appropriate to conduct a comparative survey of the legislation adopted by twenty-eight Council of Europe member States on the subject of the requirement for prisoners having reached retirement age to continue working. 31. The research showed that in sixteen of the member States surveyed, convicted prisoners are not required to work beyond retirement age (Azerbaijan, Belgium, Estonia, Finland, Germany, Hungary, Italy, Latvia, Lithuania, the Republic of Moldova, Portugal, Russia, Slovakia, Sweden, Ukraine and the United Kingdom). In thirteen of these countries, exemption from compulsory work for prisoners of retirement age arises directly out of the legislation in place. In the remaining three countries (Finland, Italy and Portugal), the issue is dealt with by referring to the relevant provisions of the employment legislation. In other words, the obligation to work ceases when retirement age is reached, in accordance with the Labour Code. 32. In the other twelve member States, the issue is not explicitly addressed in domestic law (Austria, Bosnia and Herzegovina, Bulgaria, Croatia, Ireland, Luxembourg, Poland, Romania, Serbia, Slovenia, the former Yugoslav Republic of Macedonia and Turkey). Consequently, compulsory work for convicted prisoners who have reached retirement age is not formally prohibited. However, most of these countries make provision in practice for exemptions from the requirement for prisoners to work, particularly on grounds of age and ability. In Bulgaria, for instance, all prisoners who reach retirement age are examined by a doctor who assesses their fitness for work. Similar arrangements apply in Ireland and in the former Yugoslav Republic of Macedonia. In Slovenia there is no formal legal obstacle to requiring prisoners to work beyond retirement age. However, the decision to continue to require a prisoner to work should be taken on the basis of each prisoner’s individual support plan, which must take account of his or her personal situation. THE LAW I. ALLEGED VIOLATION OF ARTICLE 4 § 2 OF THE CONVENTION 33. The applicant alleged a violation of his right not to be required to perform forced or compulsory labour. More specifically, he complained of being obliged to work while serving his sentence, despite having reached retirement age. He relied on Article 4 of the Convention, the relevant parts of which provide: “1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. 3. For the purpose of this Article the term ‘forced or compulsory labour’ shall not include: (a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of [the] Convention or during conditional release from such detention; ...” 34. The Government contested that argument. A. Admissibility 35. The Government submitted that the applicant had not raised the complaints alleging a violation of Article 4 of the Convention before the Federal Court and had therefore not exhausted domestic remedies. The applicant contested that assertion. 36. The Court observes that it is not necessary for the Convention right to have been explicitly relied upon in the domestic proceedings provided that the complaint was raised “at least in substance” (see, among other authorities, Castells v. Spain, 23 April 1992, § 32, Series A no. 236; Ahmet Sadık v. Greece, 15 November 1996, § 33, Reports of Judgments and Decisions 1996 ‑ V; and Azinas v. Cyprus [GC], no. 56679/00, §§ 40-41, ECHR 2004 ‑ III). 37. The Court notes that the applicant did not refer explicitly to Article 4 of the Convention in his grounds of appeal to the Federal Court on 15 February 2013. However, he did refer to human dignity and personal freedom within the meaning of Articles 7 and 10 respectively of the Federal Constitution, read in conjunction with Article 81 of the Criminal Code governing work by prisoners. Accordingly, the Court considers that the applicant, at least in substance, exhausted domestic remedies in respect of the crux of his complaint under Article 4 of the Convention. 38. Furthermore, it must be observed that the Federal Court, of its own motion, reclassified the applicant’s complaint in a sense by referring, among other provisions, to Article 4 of the Convention. Accordingly, it cannot be claimed that the applicant did not exhaust domestic remedies in respect of the complaint under Article 4 (see, mutatis mutandis, Verein gegen Tierfabriken Schweiz ( VgT ) v. Switzerland (no. 2) [GC], no. 32772/02, §§ 43-45, ECHR 2009). 39. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicant 40. The applicant submitted that he risked incurring significant disciplinary penalties if he did not comply with the requirement to work. He referred in that regard to the decision taken by the competent authority in Pöschwies Prison on 29 May 2012 placing him under a stricter prison regime, whereby he was confined to his cell, and confiscating his television and computer for fourteen days on account of his refusal to work (see paragraph 10 above). 41. In the applicant’s submission, the European Prison Rules (see paragraphs 22 et seq. above), despite their non-binding nature, reflected a trend among European States. According to Rule 105.2 of the 2006 Rules, sentenced prisoners who had not reached the normal retirement age could be required to work, provided that due account was taken of their physical and mental fitness. The applicant maintained that Article 81 of the Criminal Code (see paragraph 17 above), as interpreted by the Federal Court, was in breach of that Rule. 42. The applicant did not dispute that work in prison was aimed at the resocialisation of prisoners. However, that principle should be tailored to his individual situation as a prisoner who had reached retirement age. In view of his advanced age, he should no longer have to adjust to a different occupation. 43. The applicant added that, under Rule 3 of the 2006 Rules (see paragraph 23 above), restrictions placed on persons deprived of their liberty should be the minimum necessary and should be proportionate to the legitimate objective for which they were imposed; this also followed from Article 74 of the Criminal Code (see paragraph 17 above). In his case, the requirement to continue working beyond retirement age would do nothing to contribute to the aims of resocialisation or preventing mental and physical deterioration, or to comply with the authorities’ duty to support prisoners as referred to by the Federal Court. 44. The applicant conceded that prisoners needed a certain amount of structure in their daily lives. However, he did not agree with the authorities that this had to be achieved by requiring prisoners to work, at least not if they had reached retirement age. Other ways of keeping prisoners occupied needed to be found. 45. The applicant referred to Rule 5 of the 2006 Rules, according to which life in prison should approximate as closely as possible the positive aspects of life in the community. In his view, the corollary to this Rule was Article 75 of the Criminal Code (see paragraph 17 above), which stated that detention should correspond as closely as possible to the conditions of normal life. It followed that detention conditions should reflect the current state and trends of contemporary society. In the applicant’s view, a requirement for prisoners to work beyond retirement age was incompatible with that principle. 46. The applicant added that he had been contributing to the pension insurance scheme while in Pöschwies Prison. If he was still required to work even after reaching retirement age, there was no guarantee that he would one day be able to reap the benefits of that insurance. The obligation to contribute to the pension insurance scheme would thus come into conflict with the requirement to continue working beyond retirement age. 47. The applicant also took note of the Government’s detailed observations on the situation regarding employment law in the five prisons described as “representative” (see paragraphs 55 et seq. below). However, he pointed out that he had consistently requested complete exemption from compulsory work. The question in this connection was not what working conditions were appropriate but whether he could actually be required to work in the first place. 48. The applicant did not dispute that the law provided for exemption from compulsory work where the prisoner in question was no longer physically or mentally able to perform the prescribed tasks. However, the law made no provision for prisoners to be exempted on age grounds. The Government’s argument that work in prison was in no way comparable to work outside prison, because of its simplicity and the minimal physical effort it entailed, could not disguise the fact that what was involved was work or services which persons were required to perform if they wished to avoid penalties, and which were not voluntary. In the applicant’s view, the situation therefore came within the scope of Article 2 of the International Labour Organization (ILO) Convention concerning Forced or Compulsory Labour 1930 (no. 29) (“Convention no. 29” – see paragraph 21 above). 49. As to the Government’s argument that the activities offered to the applicant were not comparable to ordinary work, but rather to the activities on offer in psychiatric clinics or sheltered workshops for persons with physical and mental difficulties, the applicant submitted that he had no need of such workshops. 50. According to Article 4 of the Convention, it was primarily the notion of human dignity that determined whether a particular set of tasks should be regarded as forced or compulsory labour. Article 74 of the Criminal Code referred to two key principles with regard to the execution of sentences, namely dignity and proportionality (see paragraph 17 above). Furthermore, all Western civilised nations accepted that it was inhuman to compel people to work until they were old, ill or close to death. That was why all those nations had mechanisms and social regulations in place to ensure that elderly people could manage financially. 51. For all these reasons, the applicant concluded that the requirement for prisoners to work beyond retirement age was in breach of human dignity. Hence, the work he had been required to perform came into the category of forced or compulsory labour within the meaning of Article 4 of the Convention, and there had therefore been a violation of that provision. (b) The Government 52. The Government submitted at the outset that the requirement for prisoners to work was based on Articles 81 § 1 and 90 § 3 of the Criminal Code and on Article 103 of the Order of 6 December 2006 issued by the Canton of Zürich concerning the execution of sentences (see paragraphs 17 ‑ 18 above). 53. The Government referred to the dispatch issued by the Federal Council in 1998 regarding Article 75 of the Criminal Code (see paragraph 17 above), according to which “[d] eveloping prisoners’ social skills, and in particular their ability to live in a law ‑ abiding manner, is the primary aim pursued by the execution of sentences. It can be inferred from this that the task of the authorities responsible for execution consists first and foremost in putting socialisation programmes in place. The same paragraph emphasises the need to provide living conditions that are as close as possible to those of normal life, to provide support, to reduce the negative impact of detention and to protect the community ...” ( Feuille fédérale [FF – Federal Gazette] 1999 1787, 1917). According to the same dispatch, Article 90 § 3 of the Criminal Code qualified the requirement to work under Article 81 of the Code. While some individuals subject to custodial measures were wholly unfit for work, for those who were fit, work might not just be permissible – as in the case of young adults – but even necessary. 54. Referring to the Federal Court’s judgment in the instant case, the Government stressed that as prisoners got older greater emphasis was placed on the obligation to provide them with the necessary support (necessary-support principle) and on reducing the negative impact of detention (principle of least possible harm). The first of these principles consisted in providing prisoners with the requisite support regarding their health-related, social, religious, financial and legal needs. The second recommended that the authorities responsible for the execution of sentences take all necessary steps to compensate for and reduce the harmful effects of detention and its negative impact on the prisoner’s personality and social skills. 55. The Government stated that the overview of practice set out in the following paragraphs was based on the information received from five closed institutions ( Pöschwies, Lenzburg, Bostadel, Bochuz and Hindelbank ). These were considered to be representative because they housed prisoners aged over 65 and prisoners serving lengthy custodial sentences. The practice of compulsory work for prisoners aged over 65 was applied in these five closed institutions, which considered it to be useful and appropriate in so far as the requirement to work had a beneficial effect on these older prisoners from a psychological and social point of view. 56. Like the Federal Court, the Government stressed that the work performed in the context of the execution of custodial sentences and measures did not correspond to work in the conventional labour market, but rather to work in a closed system. The work which prisoners aged over 65 were required to carry out in this closed system had three main characteristics. Firstly, the five closed institutions in question sought to devise individual programmes for prisoners aged over 65 in order to find appropriate activities that matched their abilities. Secondly, the work carried out by these prisoners usually had little in common with ordinary work carried out by employees outside prison or by prisoners who had not reached retirement age. Thirdly, the emphasis was on giving structure to everyday life and maintaining a suitable level of activity. In other words, the requirement for prisoners aged over 65 to work was designed to enable them to remain as autonomous as possible and to maintain their cognitive, intellectual and motor faculties. 57. Pöschwies Prison currently housed six prisoners who had reached retirement age, including the applicant. Five of them, including the applicant, were in the “dependent and retired prisoners” wing ( Abteilung für Sucht und Pensionäre ). Prisoners’ activities were geared to their physical and mental abilities, irrespective of the nature and length of their sentence. On account of their simplicity and the minimal physical effort they entailed, the activities offered in that wing could not be compared to the work carried out in the other prison workshops, but more closely resembled the activities on offer in psychiatric clinics or sheltered workshops for persons with physical or mental difficulties. 58. The doctor at Pöschwies Prison also issued a certificate to all prisoners aged over 65 with limited capacity, stating that their degree of capacity to work should be lowered to reflect their individual situation. Where a reduction of working hours was granted on medical grounds, the persons concerned did not suffer any loss of earnings. 59. With regard to the specific case of the applicant, he had not alleged before the Court that the work he was required to perform exceeded his capabilities. Moreover, the work was perfectly appropriate to his age. Since reaching retirement age, the applicant had been detained in the “dependent and retired prisoners” wing of Pöschwies Prison, apart from the period from 4 July 2012 to 17 July 2013 when he had been held in the “integration” unit. 60. The activity group to which the applicant now belonged was required to carry out tasks under supervision and with assistance. The applicant had a medical certificate stating that his degree of capacity to work was 50%; accordingly, he was required to work for an average of three hours per working day. Hence, his working time totalled eighteen hours and twenty minutes a week. The applicant was required to take part only in supervised activities such as colouring mandalas, cleaning his cell or making sculptures from driftwood; these occupations were designed solely to stabilise his current condition and give continued structure to his daily life. Moreover, the applicant had volunteered several times to carry out additional tasks in the afternoon, although he was not required to take part in afternoon activities. 61. The Government therefore concluded that the work the applicant had been required to perform was appropriate to his age and that the requirement to work was proportionate. Echoing the reasoning of the Federal Court (see paragraph 14 above), they submitted that a voluntary occupation would not achieve the desired objectives. Accordingly, the work the applicant had been required to perform came within the scope of Article 4 § 3 (a) of the Convention and did not constitute forced or compulsory labour within the meaning of Article 4 § 2 of the Convention. In the Government’s submission, therefore, the complaint alleging a violation of Article 4 was manifestly ill-founded. 2. The Court’s assessment (a) General principles and summary of the relevant case-law 62. The Court reiterates that Article 4 enshrines one of the fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 4 § 1 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see Siliadin v. France, no. 73316/01, § 112, ECHR 2005 ‑ VII, and Rantsev v. Cyprus and Russia, no. 25965/04, § 283, ECHR 2010). 63. Article 4 § 2 of the Convention prohibits “forced or compulsory labour”. In interpreting that provision, the Court has in previous cases taken into account the relevant ILO conventions, which are binding on almost all of the Council of Europe’s member States, including Switzerland, and especially Convention no. 29 (see Van der Mussele v. Belgium, 23 November 1983, § 32, Series A no. 70, and Siliadin, cited above, § 115). 64. In those cases the Court noted that there was a striking similarity, which was not accidental, between paragraph 3 of Article 4 of the European Convention and paragraph 2 of Article 2 of Convention no. 29. Paragraph 1 of the last-mentioned Article provides that “for the purposes” of Convention no. 29, the term “forced or compulsory labour” shall mean “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily” (see Siliadin, cited above, § 116). The Court regarded this definition as a starting-point for the interpretation of Article 4 of the Convention but noted that sight should not be lost of the Convention’s special features or of the fact that it was a living instrument to be read “in the light of the notions currently prevailing in democratic States” (see Van der Mussele, cited above, § 32). 65. The Court also stresses the specific structure of Article 4. Paragraph 3 is not intended to “limit” the exercise of the right guaranteed by paragraph 2, but to “delimit” the very content of that right, for it forms a whole with paragraph 2 and indicates what the term “forced or compulsory labour” is not to include. This being so, paragraph 3 serves as an aid to the interpretation of paragraph 2. The four sub-paragraphs of paragraph 3, notwithstanding their diversity, are grounded on the governing ideas of the general interest, social solidarity and what is normal in the ordinary course of affairs (see Van der Mussele, cited above, § 38; see also Karlheinz Schmidt v. Germany, 18 July 1994, § 22, Series A no. 291 ‑ B, and Zarb Adami v. Malta, no. 17209/02, § 44, ECHR 2006 ‑ VIII). 66. The Court’s case-law concerning prison work is rather sparse. In one of its early judgments, the Court had to consider the work a recidivist prisoner was required to perform, his release being conditional on accumulating a certain amount of savings. While accepting that the work in issue was compulsory, the Court found no violation of Article 4 of the Convention on the ground that the requirements of Article 4 § 3 (a) had been met. In the Court’s view, the work required had not gone beyond what was “ordinary” in this context since it had been calculated to assist the applicant in reintegrating into society and had as its legal basis provisions which had an equivalent in certain other member States of the Council of Europe (see Van Droogenbroeck v. Belgium, 24 June 1982, § 59, Series A no. 50, with reference to De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, §§ 89 ‑ 90, Series A no. 12). 67. In Stummer v. Austria ([GC], no. 37452/02, §§ 132 et seq., ECHR 2011), the Grand Chamber found that there was not sufficient consensus on the issue of the affiliation of working prisoners to the old-age pension system to give rise to an obligation under Article 4 of the Convention. Consequently, the compulsory work performed by the applicant as a prisoner without being affiliated to the old-age pension system was to be regarded as “work required to be done in the ordinary course of detention” within the meaning of Article 4 § 3 (a) of the Convention. (b) Application of the above-mentioned principles 68. This is the first time that the Court has had to address the issue of the requirement for a prisoner to work after reaching retirement age. 69. The Court must ascertain whether the present case involved “forced or compulsory labour” contrary to Article 4 of the Convention. It notes that the applicant was required to work under Article 81 § 1 of the Criminal Code. Refusing to perform the work assigned to him constituted an offence for which he would have to face the consequences, as demonstrated by the decision of the competent authority of Pöschwies Prison of 29 May 2012 placing the applicant under a stricter prison regime and confiscating his television and computer for fourteen days on account of his refusal to work (see paragraph 10 above). Although that decision was subsequently revoked, the Court accepts that the penalty imposed on the applicant appears quite harsh. 70. In any event, taking the definition of forced or compulsory labour contained in Article 2 § 1 of Convention no. 29 as a starting-point for the interpretation of Article 4 § 2 of the Convention (see Van der Mussele, cited above, §§ 32-34, and Stummer, cited above, § 125), the Court has no doubt that the applicant was performing work “under the menace of [a] penalty and for which [he had] not offered himself voluntarily ”. 71. While the parties appear to be in agreement on this point, they disagree as to whether the work performed by the applicant was covered by Article 4 § 3 (a) of the Convention, which excludes “any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of the Convention” from the term “forced or compulsory labour”. 72. The Court observes at the outset that the wording of the Convention does not give any indication as regards the issue of the requirement for prisoners who have reached retirement age to work. However, the Court considers that the question of the applicability of Article 4 § 3 (a) of the Convention to such situations should be examined in the light of the aim of the work imposed, its nature, its extent and the manner in which it has to be performed. 73. As regards the aim of the work imposed, the Court accepts the Government’s argument that the requirement for prisoners to continue working even after retirement age forms part of efforts to reduce the harmful impact of detention. It acknowledges that suitable and reasonable work may help to structure daily life and maintain an appropriate level of activity, both of which are important goals as regards the well-being of long-term prisoners. In that connection the Court considers that the domestic authorities provided sufficient reasons to demonstrate the distinction between work carried out in the course of execution of a custodial sentence or measure, corresponding to a closed system, and work performed outside prison under free-market conditions. 74. As to the nature of the work carried out by prisoners who have reached retirement age, it is clear from the observations made by the Federal Council on 10 October 2012, in response to the CPT report on the latter’s visit to Switzerland in October 2011 (see paragraphs 19-20 above), that the requirement to work does not apply to all prisoners to an equal extent and that it has to be tailored, depending on the circumstances, to prisoners’ abilities and especially to their capacity for work and their state of health. Furthermore, according to the Federal Council, persons with physical difficulties are required only to perform light tasks, usually on a reduced basis. Prisoners who are unfit to work, as certified by a doctor, are exempted from the requirement to work. As to the specific situation of the applicant, his work appears to comply with these guidelines; it is clear from the Government’s observations that the applicant is required only to take part in supervised work such as colouring mandalas, cleaning his cell and making sculptures from driftwood. The Court shares the Government’s view that these activities are wholly appropriate to the applicant’s age and physical capacities, an assertion which the applicant did not dispute. 75. As to the extent of the requirement to work, the Court considers that this too is suited to the circumstances and the applicant’s individual situation, in so far as he works only for around three hours a day, that is to say, for eighteen hours and twenty minutes a week. 76. Lastly, with regard to the manner in which his work has to be performed, the Court observes that the applicant, together with other prisoners who have reached retirement age, has been placed in the “dependent and retired prisoners” wing of Pöschwies Prison. Furthermore, the applicant is paid for his work and, according to the Government, he does not suffer any loss of earnings if his capacity for work is reduced for medical reasons. As to the applicant’s claim that there is no guarantee that he will receive benefits from the pension insurance scheme given that he is required to continue working, the Court considers that he has not substantiated this argument in any way, for instance by providing the Court with decisions to that effect by the competent authorities. 77. In establishing what is to be considered “work required to be done in the ordinary course of detention”, the Court will also have regard to the standards prevailing in member States (see Van Droogenbroeck, cited above, § 59, and Stummer, cited above, §§ 131 et seq.). As regards the practice of the Council of Europe member States, the Court notes that the comparative survey of twenty-eight countries shows that, in sixteen of those countries, sentenced prisoners are not required to work after reaching retirement age. In the remaining twelve member States surveyed, the issue is not explicitly addressed in domestic law. However, these countries usually provide for exemptions from the requirement for prisoners to work, notably on account of their capacities and their age. Consequently, the arrangements put in place by these countries resemble the approach taken in Switzerland. The Court therefore concludes that, in the absence of sufficient consensus among the Council of Europe member States on the requirement for prisoners to work after they have reached retirement age, the Swiss authorities enjoyed a considerable margin of appreciation (see, mutatis mutandis, Stummer, cited above, § 132). 78. Moreover, the Court reiterates that the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law. Account should be taken, as indicated in Article 31 § 3 (c) of the Vienna Convention on the Law of Treaties of 1969, of “[a] ny relevant rules of international law applicable in the relations between the parties”, and in particular the rules concerning the international protection of human rights (see, among other authorities, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 131, ECHR 2010, and Golder v. the United Kingdom, 21 February 1975, § 29, Series A no. 18). In this connection the Court observes that Rule 105.2 of the 2006 European Prison Rules (see paragraph 27 above) states that “[s] entenced prisoners who have not reached the normal retirement age may be required to work, subject to their physical and mental fitness as determined by the medical practitioner”. Although the aforementioned European Prison Rules do not have binding legal force, the Court has always attributed considerable importance to them in its case-law. In the case before it, it observes that the wording of Rule 105.2 is quite open and that it does not impose a uniform regime as regards the requirement for prisoners who have reached retirement age to work. In any event, the Court considers that this Rule should not necessarily be interpreted as completely prohibiting the member States from requiring prisoners who have reached retirement age to work. In the present case the Court does not deem it necessary to provide a definitive answer to this question, bearing in mind that the member States enjoy a certain margin of appreciation when it comes to implementation of this Rule by the prison authorities, who are in any event better placed than the Court to assess issues linked to conditions of detention and the treatment of prisoners. In that regard the Court takes the view that it is primarily for the domestic authorities to establish effective and practicable conditions and arrangements with a view to organising their prison systems, while at the same time complying with the requirements of the Convention. 79. In sum, and particularly in the absence of consensus among the Council of Europe member States on the issue of the requirement for prisoners to work after reaching retirement age, no absolute prohibition can be inferred from Article 4 of the Convention. The compulsory work performed by the applicant while in detention, including the work carried out since he reached retirement age, can therefore be regarded as “work required to be done in the ordinary course of detention” within the meaning of Article 4 § 3 (a) of the Convention. Accordingly, that work did not amount to “forced or compulsory labour” within the meaning of Article 4 § 2. 80. In view of the foregoing considerations, and noting that the applicant in the present case confined himself to challenging the actual principle of requiring prisoners to work after reaching retirement age and did not complain of the manner in which the work assigned to him by the Swiss authorities had to be performed, the Court finds that there has been no violation of Article 4 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 14 TAKEN IN CONJUNCTION WITH ARTICLE 4 OF THE CONVENTION 81. The applicant also alleged that he had been discriminated against as a prisoner having reached retirement age compared with persons outside prison, who, he argued, were not required to continue working. In support of his complaint he relied on Article 14 of the Convention, which provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 82. The Government submitted that the applicant had not exhausted domestic remedies in respect of this complaint. 83. The applicant contested that argument. 84. The Court notes that the applicant, who was duly represented by a lawyer, did not present arguments before the Federal Court, even in substance, in support of his discrimination complaint. 85. It follows that this complaint must be rejected for failure to exhaust domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention. | The Court held that there had been no violation of Article 4 § 2 (prohibition of forced labour) of the Convention. It noted in particular that there was insufficient consensus among Council of Europe member States regarding compulsory work for prisoners after retirement age. Accordingly, it emphasised, on the one hand, that the Swiss authorities enjoyed a considerable margin of appreciation and, on the other, that no absolute prohibition could be inferred from Article 4 of the Convention. The compulsory work performed by the applicant during his detention could therefore be regarded as “work required to be done in the ordinary course of detention”, for the purpose of Article 4 of the Convention. Consequently, it did not constitute “forced or compulsory labour” within the meaning of that Article. |
27 | Affiliation- and inheritance-related rights | III. Both parties agree that it is the contents of the will that determine the testatrix ’ s intention at the time of making it, so that the will has to be interpreted in accordance with that intention, which is to be inferred from the words used in the will ( Digest 50, 16, 219). Since 1941 it has been apparent from the case-law of the Andorran courts (judgment of the Judge of Appeals dated 3 February 1941) that ‘ on both a partially intestate and a testate succession it is principally the testator ’ s intention that must be taken into account, as can be inferred from many provisions of Roman and canon law ... ’ V. It is apparent from the foregoing that, although the law in force when the child was actually adopted allowed adopted children to inherit from their adoptive parents on an intestate succession (code 8, 48, 10), those rights cannot extend to a testate succession, where the main factor is the testator ’ s intention. Accordingly, any doubt as to the scope of the expression ‘ offspring of a lawful and canonical marriage ’ falls away when the testatrix ’ s intention is analysed in the light of the social, family and legal conditions in which she lived. In the present case, nothing militates in favour of including the life tenant ’ s adopted children, given the minimal impact of adoption on Andorran family and inheritance law, the adopted child ’ s status as the adoptive parents ’ child (son) but not as a member of the parents ’ family, the purpose traditionally ascribed to family settlements under Catalan law, and Catalan and Andorran legal tradition.” D. Application to the High Court of Justice of Andorra to have the proceedings set aside on grounds of nullity 19. The applicants lodged an application with the High Court of Justice to have the proceedings set aside. They submitted that the latter had breached the principle of equality before the law enshrined in Article 6 of the Andorran Constitution and that they had breached Article 10 (right to judicial protection and to a fair trial) of the Andorran Constitution. In a decision of 28 June 2000, the High Court of Justice dismissed their application as ill-founded. E. Appeal ( recurso de empara ) before the Constitutional Court 20. The applicants lodged an empara appeal with the Constitutional Court against the decisions of the High Court of Justice. They alleged a violation of Article 13 § 3 (principle of children ’ s equality before the law regardless of filiation) and Article 10 (right to judicial protection and a fair trial) of the Andorran Constitution. In a decision of 13 October 2000, the Constitutional Court declared their appeal inadmissible for the following reasons: “... It seems clear that the judgment of the High Court of Justice is limited to clarifying and determining, that is, interpreting, a specific point concerning the testatrix ’ s intention, as expressed in her will in the form of a family settlement in favour of a child or grandson of a lawful and canonical marriage. The High Court of Justice does not at any point suggest that there is general discrimination against, or inequality between, children according to whether they are biological or adopted. Such an assertion would evidently amount to a flagrant breach of Article 13 § 3 of the Constitution and would also be contrary to the prevailing legal opinion according to which legal systems must always be interpreted, which is that all children are equal, irrespective of their origin. However, as submitted in substance by State Counsel, ‘ discrimination against adopted children as compared to biological children does not in the instant case derive from an act of the public authorities, that is, from the judgment of the Civil Division of the High Court of Justice, but from the intention of the testatrix or settlor regarding who should inherit under her will ’ in accordance with the principle of freedom to make testamentary dispositions, which is a concrete manifestation of the general principle of civil liberty. In its judgment, the High Court of Justice confined itself to interpreting a testamentary disposition. It did so from the legal standpoint it considered adequate and in accordance with its unfettered discretion, seeing that the interpretation of legal instruments is a question of fact which, as such, falls under the jurisdiction of the ordinary courts. ...” 21. The applicants lodged an appeal ( recurso de súplica ) with the Constitutional Court, which dismissed it on 17 November 2000. II. RELEVANT DOMESTIC LAW 22. Articles 6, 13 and 14 of the Andorran Constitution of 14 March 1993 provide: Article 6 “1. Everyone is equal before the law. No one may be discriminated against on grounds of birth, race, sex, origin, religion, opinions or any other personal or social condition. 2. The public authorities shall create the conditions necessary to give full effect to the principles of equality and freedom.” Article 13 “1. The civil status of persons and forms of marriage shall be regulated by law. Canonical marriages are recognised as having civil effects. ... 3. Both spouses have the same rights and duties. All children are equal before the law, regardless of their filiation.” Article 14 “Everyone has the right to respect for their privacy, honour and image. Everyone is entitled to legal protection from unlawful interference with their private and family life.” 23. Section 24 of the Special Law ( qualificada ) of 21 March 1996 on the adoption and protection of minors in distress provides: “... Adopted children have the same rights and obligations within the adoptive family as legitimate children.” THE LAW I. THE GOVERNMENT ’ S PRELIMINARY OBJECTION 24. The Government raised the objection that Article 8 of the Convention was inapplicable to the facts of the case because there had been no “family life” within the meaning of that provision between the applicants and Carolina Pujol Oller. In that connection, the Government referred to the lack of a genuine relationship between the grandmother, Carolina Pujol Oller, who had died in 1949, and the first applicant, who was adopted in 1969. In the Government ’ s submission, the Court had always adopted a pragmatic approach to the concept of “family life” in order to protect de facto rather than de iure family life. In that sense, the existence of a formal family tie was insufficient to attract the protection of Article 8. 25. For their part, the applicants disputed the Government ’ s submission, arguing that, if upheld, it would, for example, exclude posthumous children from the scope of Article 8. Moreover, the Government ’ s argument also concerned Carolina and Immaculada Serra, who had brought the proceedings in the Andorran courts to have the codicil set aside and had not known their great-grandmother either. 26. The Court points out that in Marckx v. Belgium (judgment of 13 June 1979, Series A no. 31, pp. 23-24, §§ 51-52), it accepted that the right of succession between children and parents, and between grandchildren and grandparents, was so closely related to family life that it came within the sphere of Article 8. It has thus considered that matters of intestate succession – and voluntary dispositions – between near relatives prove to be intimately connected with family life. Family life does not include only social, moral or cultural relations, for example in the sphere of children ’ s education; it also comprises interests of a material kind, as is shown by, amongst other things, the obligations in respect of maintenance and the position occupied in the domestic legal systems of the majority of the Contracting States by the institution of the reserved portion of an estate ( réserve héréditaire ). The fact that Carolina Pujol Oller had died before the first applicant was adopted is no reason for the Court to adopt a different approach in the present case (see, mutatis mutandis, Camp and Bourimi v. the Netherlands, no. 28369/95, § 35, ECHR 2000- X). Article 8 of the Convention is therefore applicable. II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8 27. The applicants complained that, in determining inheritance rights, the High Court of Justice and the Constitutional Court had breached the applicants ’ right to respect for their private and family life by unjustifiably discriminating against the first applicant on the ground of his filiation. They submitted that this had resulted in a violation of Article 14 of the Convention taken in conjunction with Article 8. 28. Article 8 of the Convention provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 29. Article 14 provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. The parties ’ submissions 1. The applicants 30. The applicants stressed at the outset that the Court was faced with a problem that it had never had to deal with before. The previous cases it had examined (see Marckx, cited above; Inze v. Austria, judgment of 28 October 1987, Series A. no. 126; and Mazurek v. France, no. 34406/97, ECHR 2000-II) had concerned the statutory provisions governing instances of intestate succession that had given rise to an unlawful interference by the State with the applicants ’ family life and/or discrimination in family relations on grounds of birth. 31. The present case related to the private sphere since it concerned the freedom to arrange one ’ s affairs in the form of a will made by Carolina Pujol Oller in 1939. The testatrix had died in 1949. The first applicant was adopted in 1969 and it was not until 1996, after the death of Carolina ’ s son and life tenant under her will, that the codicil he had drawn up in 1995 was opened. The applicants were in no doubt that the case fell to be examined under the provisions of private law, which had to be read in the light of Andorran law as in force in 1996 and the Convention. Those rules had evidently not been applied by the High Court of Justice. 32. The applicants pointed out that customary law ( ius commune) was a supplementary source of civil law under the Andorran law. The ius commune in force in Andorra incorporated Andorran customary law based on Roman law as revised in the light of canon law. That was the applicable legal framework in 1939, when the will was made. Adoption had already been a feature of canon law when it was first drafted over a thousand years ago. The Catholic Church attributed to adopted children the status laid down in canon 1094 of the Benedict XV Code, which was the relevant legislation in force when the will had been drafted in 1939. That status had been confirmed in 1983 by canon 110 of the modern Code of Canon Law, which enshrined the principle that adopted children and legitimate children were equal. There was abundant case-law authority to support the submission that canon law was a supplementary source of law in the Principality of Andorra. Moreover, under Roman law adopted children had the same inheritance and family rights as legitimate and illegitimate children. Adoption had therefore been envisaged both in canon law and in Roman law. It was therefore undeniably a known legal institution that had been used by Andorrans in 1939. 33. With regard to the rules on interpreting wills, the applicants observed that, in accordance with the relevant Roman tradition, where a testamentary disposition was clear and unambiguous there was no need to depart from it on the pretext of ascertaining its meaning. 34. Accordingly, if the testatrix had really intended to exclude adopted children from the family settlement, she would have inserted a specific clause to that effect, as was habitually done by Andorran and Catalan notaries. In that connection, the applicants referred to the many forms, notarial deeds and court decisions by which adopted sons were in practice always prevented from inheriting an estate by an express exclusion clause which required the child to be legitimate and biological. This was phrased in the following ways: “ son of a lawful, canonical and carnal marriage ”, or “ legitimate and biological son of a canonical marriage ” or “ son procreated by lawful and carnal marriage ”. In the present case, however, Carolina Pujol Oller had made no mention in her will of any tacit or express exclusion of adopted sons. The sole purpose of the clause had been to exclude illegitimate sons. 35. The High Court of Justice of Andorra had therefore failed to apply the appropriate law in the present case. In the applicants ’ submission, the court should have interpreted the will in accordance with the legislation in force in 1996, particularly the Andorran Constitution of 1993 and the adoption law of March 1996. That total failure to apply the appropriate law had resulted in an interference with their rights by the Andorran authorities, which were the ultimate guarantors of their right to enjoy their family life without any unjustified discrimination. In their view, the testatrix had clearly not made any distinction in her will regarding adopted children. Accordingly, it was neither for individuals nor the courts to make such a distinction, which was moreover contrary to the Andorran Constitution and the European Convention. The judgment of the High Court of Justice therefore amounted to an unlawful interference with their private and family life, which was clearly discriminatory as regards the first applicant. That interference and discrimination were expressly prohibited by the Andorran Constitution of 1993 and the Special Law on adoption and protection of minors in distress enacted in March 1996. 36. In conclusion, the applicants submitted that there had been a violation of Articles 8 and 14 of the Convention. 2. The Government 37. The Government stressed at the outset that Andorran law did not in any way discriminate between adopted children and legitimate children. In Marckx, the Court had found a violation of the Convention, but that had been based on a statutory discrimination. It was the exact opposite situation here, since Andorran law recognised that grandchildren, be they legitimate, illegitimate or adopted, had the same statutory inheritance rights with regard to their parents (reserved portion of the estate on a testate succession and hereditary rights on an intestate succession) and with regard to their grandparents. In the Government ’ s submission, the present case differed substantially from Marckx because the first applicant had been left more than EUR 300,000 by his father and had had the same inheritance rights as his sister or any other legitimate brother or sister if there had been one. 38. The property dispute in the present case arose as a result of the free will of a testatrix who, under domestic law, had been entirely free to dispose of her property as she wished, apart from the reserved portion. Subject to that restriction, the freedom to dispose of the remaining assets was protected under Andorran law. Once the portion reserved to the heirs was protected, testators were free to dispose of the rest of the property as they wished. That was precisely what had happened here. The Government submitted that there had been no interference with the applicants ’ family life. Moreover, even supposing that the decisions of the Andorran courts could be deemed to have interfered with the rights to which the applicants referred, the interference had been justified. Firstly, the decision of the High Court could be deemed to have pursued the legitimate aim of protecting the right of the true heirs under the settlement and, accordingly, was aimed at protecting the rights and freedoms of others. Secondly, the decision complained of fell within the States ’ margin of appreciation in areas such as the one in issue here. In sum, a fair balance had been struck between the competing rights in question. 39. In the Government ’ s submission, the High Court of Justice ’ s interpretation was in keeping with the testatrix ’ s intention in 1939 and the law in force in Andorra at the time of her death in 1949. According to the legal tradition applicable at the time, adopted sons did not have the same rights as legitimate sons under family settlements because the purpose of that institution was to keep the family estate in the family. The postglossators had already observed that extending family settlements to adopted sons meant that the fulfilment of the condition was in the hands of the life tenant, with the clear risk of fraud or abuse of right that that entailed. 40. The Government reiterated that the interpretation of domestic law was a matter solely for the domestic courts, which were the best placed to interpret and apply domestic law. The Court ’ s scrutiny was limited to ensuring that that application and interpretation were compatible with the requirements of the Convention. In the present case, the High Court of Justice had found, after examining the domestic law and the parties ’ allegations in detail in the course of the due exercise of its functions in interpreting the intention of the testatrix, that she had not included a provision expressly excluding adopted children because, to her mind, they had clearly been excluded by the term “son of a legitimate and canonical marriage”. In sum, the High Court of Justice ’ s interpretation had not breached the Convention, because the judgment contained no humiliating expression or declaration or one that could be regarded as infringing the human dignity of adopted children. The judgment was limited to finding that the testatrix had not intended adopted children to inherit her estate. Moreover, the will did not contain any clause that was illegal or contrary to public policy. The Government observed that any entitlement under a will was, by definition, discriminatory in that it generated differences between heirs. 41. In conclusion, the Government submitted that there had been no violation of the provisions in question. B. The Court ’ s assessment 42. Since the issue of alleged discriminatory treatment of the first applicant is at the heart of the applicants ’ complaint, the Court considers it appropriate to examine the complaint first under Article 14 of the Convention taken in conjunction with Article 8. 43. The Court has had occasion in previous cases to examine allegations of differences of treatment for succession purposes both under Article 14 taken in conjunction with Article 8 (see Marckx, cited above, p. 24, § 54, and Vermeire v. Belgium, judgment of 29 November 1991, Series A no. 214 ‑ C, p. 83, § 28) and under Article 14 taken in conjunction with Article 1 of Protocol No. 1 (see Inze, cited above, p. 18, § 40, and Mazurek, cited above, § 43 ). The Court reaffirms that the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities (see, for example, Johnston and Others v. Ireland, judgment of 18 December 1986, Series A no. 112, p. 25, § 55, and Camp and Bourimi, cited above, § 28). That being said, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective “respect” for private or family life (see Marckx, cited above, pp. 14-15, § 31). The factor common to those cases was that the difference of treatment of which complaint was made resulted directly from the domestic legislation, which distinguished between legitimate and illegitimate children (see Marckx, Vermeire and Inze, cited above) or between children born of an adulterous relationship and other children, whether or not born in wedlock (see Mazurek, cited above). The question raised in each of these cases was whether such difference of treatment within the legal system of the respondent States violated the rights of the applicants under Article 14 taken in conjunction with Article 8 of the Convention or Article 1 of Protocol No. 1. 44. The essential difference between the present case and the above-cited ones is that in the instant case the Court is not required to determine whether there is an incompatibility between the Convention and the Andorran statutory provisions on adopted children ’ s inheritance rights. The Court notes in that connection, moreover, that the parties agreed that both the Andorran Constitution of 1993 and the special law on adoption of 21 March 1996 were compatible with the principle under Article 14 of the Convention prohibiting discrimination on grounds of birth. In the present case, the question in issue concerns the High Court of Justice of Andorra ’ s interpretation, upheld by the Constitutional Court, of a testamentary disposition drafted in 1939 and executed in 1995. The Court has to determine whether that interpretation breached Article 14 of the Convention taken in conjunction with Article 8. 45. Clearly, the Andorran authorities cannot be held liable for any interference with the applicants ’ private and family life any more than the Andorran State can be held liable for a breach of any positive obligations to ensure effective respect for family life. The applicants confined themselves to challenging a judicial decision that had declared a private deed disposing of an estate to be contrary to the testatrix ’ s wishes. The only outstanding question is that of the alleged incompatibility with the Convention of the Andorran courts ’ interpretation of domestic law. 46. On many occasions, and in very different spheres, the Court has declared that it is in the first place for the national authorities, and in particular the courts of first instance and appeal, to construe and apply the domestic law (see, for example, Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A no. 33, p. 20, § 46; Iglesias Gil and A.U.I. v. Spain, no. 56673/00, § 61, ECHR 2003-V; and Slivenko v. Latvia [GC], no. 48321/99, § 105, ECHR 2003 ‑ X). That principle, which by definition applies to domestic legislation, is all the more applicable when interpreting an eminently private instrument such as a clause in a person ’ s will. In a situation such as the one here, the domestic courts are evidently better placed than an international court to evaluate, in the light of local legal traditions, the particular context of the legal dispute submitted to them and the various competing rights and interests (see, for example, De Diego Nafría v. Spain, no. 46833/99, § 39, 14 March 2002). When ruling on disputes of this type, the national authorities and, in particular, the courts of first instance and appeal have a wide margin of appreciation. Accordingly, an issue of interference with private and family life could only arise under the Convention if the national courts ’ assessment of the facts or domestic law were manifestly unreasonable or arbitrary or blatantly inconsistent with the fundamental principles of the Convention. 47. The present case dates back to 1939 when Carolina Pujol Oller, Francesc Pla Guash ’ s widow, made a will before a notary, the seventh clause of which settled her estate on her son, Francesc-Xavier (the first applicant ’ s father) as life tenant with the remainder to a son or grandson of a lawful and canonical marriage. Should those conditions not be met, the testatrix stipulated that her estate had to pass to the children and grandchildren of the remaindermen under the settlement. In 1949 Carolina Pujol Oller died. 48. The beneficiary under the will, Francesc-Xavier Pla Pujol, contracted canonical marriage to the second applicant, Roser Puncernau Pedro. By deed sworn before a notary in La Coruña ( Spain ) on 11 November 1969, the couple adopted a child, Antoni (the first applicant), in accordance with the procedure for full adoption in force under Catalan law. They subsequently adopted a second child. 49. By a codicil dated 3 July 1995, Francesc-Xavier Pla Pujol left the assets he had inherited under his mother ’ s will to his wife (the second applicant) for life, with the remainder to his adopted son, Antoni. Francesc-Xavier Pla Pujol died on 12 November 1996. The codicil was opened on 27 November 1996. The assets in question consisted of real estate. 50. Submitting that, as an adopted child, the first applicant could not inherit under the will made by the testatrix in 1939, two great-grandchildren of hers brought civil proceedings in the Tribunal des Battles, which dismissed their action. The High Court of Justice set the judgment aside on appeal and granted the appellants ’ claim. An appeal ( empara ) against that judgment was dismissed by the Constitutional Court. 51. With regard to the interpretation of the testamentary disposition, which is at the heart of the dispute, the Tribunal des Batlles, which dealt with the case at first instance, analysed the clause grammatically in the light of the historical background and applying Roman law as amended by canon law, which is a source of the general law applicable in Andorra. It concluded that the action should be dismissed. The court added that no foreign legislation, case-law or legal theory was applicable in the Principality. In its view, neither the wording of the clause nor the intention of the testatrix could prevent adopted children from inheriting under the will. 52. On appeal, the High Court of Justice construed the relevant facts and law differently. In the first place, it found that adoption had been practically unheard of in Andorra during the first half of the twentieth century. It concluded from this that it was difficult to reconcile the testatrix ’ s act of creating a family settlement in case the life tenant should die without leaving offspring of a lawful and canonical marriage with an intention to extend the arrangement to adopted children. Similarly, the court observed that the deed of adoption had been drawn up in Spain in accordance with the Spanish procedure for full adoption. Under the Spanish law applicable at the time, particularly Catalan law (to which the deed of adoption referred), on an intestate succession adopted children could inherit only from their adoptive father or mother and not from the rest of the adoptive parents ’ family. When examining the testatrix ’ s intention, the court found that both at the time when the will was made in 1939 and on the testatrix ’ s death in 1949 the adopted children of her legitimate son or son of the marriage were outside the family circle from a legal and sociological point of view. The court found that, in order for adopted children to be able to inherit under a Catalan family settlement, there would have to be no doubt as to the testatrix ’ s intention to depart from the usual meaning ascribed to that arrangement. The terms used in the will did not support that conclusion. 53. The Court notes that the Andorran courts gave two different interpretations: the first, given by the Tribunal des Batlles, was favourable to the applicants and the second, given by the High Court of Justice, went against them. Both are based on factual and legal elements that were duly evaluated in the light of the particular circumstances of the case. 54. The Court reiterates that Article 14 of the Convention complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts in issue fall within the ambit of one or more of the latter (see, among many other authorities, Van Raalte v. the Netherlands, judgment of 21 February 1997, Reports of Judgments and Decisions 1997-I, p. 184, § 33, and Camp and Bourimi, cited above, § 34). 55. The Court has found above that the facts of the case fell within Article 8 of the Convention. Accordingly, Article 14 can apply in conjunction with Article 8. 56. The Court does not consider it appropriate or even necessary to analyse the legal theory behind the principles on which the domestic courts, and in particular the High Court of Justice of Andorra, based their decision to apply one legal system rather than another, be it Roman law, canon law, Catalan law or Spanish law. That is a sphere which, by definition, falls within the competence of the domestic courts. 57. The Court considers that, contrary to the Government ’ s affirmations, no question relating to the testatrix ’ s free will is in issue in the present case. Only the interpretation of the testamentary disposition falls to be considered. The Court ’ s task is therefore confined to determining whether, in the circumstances of the case, the first applicant was a victim of discrimination contrary to Article 14 of the Convention. 58. In the present case, the Court observes that the legitimate and canonical nature of the marriage contracted by the first applicant ’ s father is indisputable. The sole remaining question is therefore whether the notion of “ son ” in Carolina Pujol Oller ’ s will extended only, as the High Court of Justice maintained, to biological sons. The Court cannot agree with that conclusion of the Andorran appellate court. There is nothing in the will to suggest that the testatrix intended to exclude adopted grandsons. The Court understands that she could have done so but, as she did not, the only possible and logical conclusion is that this was not her intention. The High Court of Justice ’ s interpretation of the testamentary disposition, which consisted in inferring a negative intention on the part of the testatrix and concluding that since she did not expressly state that she was not excluding adopted sons this meant that she did intend to exclude them, appears over contrived and contrary to the general legal principle that where a statement is unambiguous there is no need to examine the intention of the person who made it ( quum in verbis nulla ambiguitas est, non debet admitti voluntatis queastio ). 59. Admittedly, the Court is not in theory required to settle disputes of a purely private nature. That being said, in exercising the European supervision incumbent on it, it cannot remain passive where a national court ’ s interpretation of a legal act, be it a testamentary disposition, a private contract, a public document, a statutory provision or an administrative practice appears unreasonable, arbitrary or, as in the present case, blatantly inconsistent with the prohibition of discrimination established by Article 14 and more broadly with the principles underlying the Convention (see Larkos v. Cyprus [GC], no. 29515/95, §§ 30-31, ECHR 1999 ‑ I). 60. In the present case, the High Court of Justice ’ s interpretation of the testamentary disposition in question had the effect of depriving the first applicant of his right to inherit under his grandmother ’ s estate and benefiting his cousin ’ s daughters in this regard. Furthermore, the setting aside of the codicil of 3 July 1995 also resulted in the second applicant losing her right to the life tenancy of the estate assets left her by her late husband. Since the testamentary disposition, as worded by Carolina Pujol Oller, made no distinction between biological and adopted children it was not necessary to interpret it in that way. Such an interpretation therefore amounts to the judicial deprivation of an adopted child ’ s inheritance rights. 61. The Court reiterates that a distinction is discriminatory for the purposes of Article 14 if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a “ reasonable relationship of proportionality between the means employed and the aim sought to be realised ” (see, inter alia, Fretté v. France, no. 36515/97, § 34, ECHR 2002-I). In the present case, the Court does not discern any legitimate aim pursued by the decision in question or any objective and reasonable justification on which the distinction made by the domestic court might be based. In the Court ’ s view, where a child is adopted (under the full adoption procedure, moreover), the child is in the same legal position as a biological child of his or her parents in all respects: relations and consequences connected with his or her family life and the resulting property rights. The Court has stated on many occasions that very weighty reasons need to be put forward before a difference in treatment on the ground of birth out of wedlock can be regarded as compatible with the Convention. Furthermore, there is nothing to suggest that reasons of public policy required the degree of protection afforded by the Andorran appellate court to the appellants to prevail over that afforded to the first applicant. 62. The Court reiterates that the Convention, which is a dynamic text and entails positive obligations for States, is a living instrument, to be interpreted in the light of present-day conditions and that great importance is attached today in the member States of the Council of Europe to the question of equality between children born in and children born out of wedlock as regards their civil rights (see Mazurek, cited above, § 30). Thus, even supposing that the testamentary disposition in question did require an interpretation by the domestic courts, that interpretation could not be made exclusively in the light of the social conditions existing when the will was made or at the time of the testatrix ’ s death, namely in 1939 and 1949, particularly where a period of fifty-seven years had elapsed between the date when the will was made and the date on which the estate passed to the heirs. Where such a long period has elapsed, during which profound social, economic and legal changes have occurred, the courts cannot ignore these new realities. The same is true with regard to wills: any interpretation, if interpretation there must be, should endeavour to ascertain the testator ’ s intention and render the will effective, while bearing in mind that “the testator cannot be presumed to have meant what he did not say” and without overlooking the importance of interpreting the testamentary disposition in the manner that most closely corresponds to domestic law and to the Convention as interpreted in the Court ’ s case-law. 63. Having regard to the foregoing, the Court considers that there has been a violation of Article 14 of the Convention taken in conjunction with Article 8. 64. In the light of the conclusion set out in the previous paragraph, the Court is of the opinion that there is no need to examine the application separately under Article 8 of the Convention taken alone. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 65. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary and non-pecuniary damage 66. The applicants submitted, firstly, that just satisfaction should take the form of setting aside the High Court of Justice ’ s judgment, upholding the judgment of the Tribunal des Batlles and reinstating the first applicant as life tenant of the estate of his grandmother, Carolina Pujol Oller. Should that not be possible, they submitted that their pecuniary loss corresponded to the value of the assets in Carolina Pujol Oller ’ s estate, which consisted of the following real property in the Principality of Andorra: the Hort de la Canaleta, the Hort d ’ ensucaranes, the Rec Vell de l ’ Obach, the Hôtel Pla and the Boïgues del Pla. According to an expert valuation dated 10 May 2001, the property was estimated to be worth 127,625,000 pesetas (767,042 euros (EUR)). In their last pleadings submitted at the hearing before the Court, the applicants submitted that, according to a recent expert valuation, the pecuniary damage amounted to EUR 1,195,913. 67. In respect of non-pecuniary damage, having regard to the health problems they had suffered – particularly the second applicant who was now 80 years old – and in view of the various proceedings brought before the Andorran courts, the applicants assessed the non-pecuniary damage sustained by the first applicant at EUR 120,000 and that sustained by the second applicant, who was his mother and supervisor, at EUR 30,000. 68. The Government, for their part, maintained that these claims were manifestly excessive. They submitted that since, under Andorran law, the first applicant ’ s father could have kept for himself half the assets inherited from his mother, the Government were liable for only half the value of the estate in question, this being the assets that had to be transferred to the first applicant. They did not accept the applicants ’ valuation of the assets. According to their expert ’ s valuation, the Hôtel Pla was worth EUR 661,885. The aggregate value of the other property (land) was EUR 89,281. In all, the Pla family ’ s fortune had to be estimated at a maximum of EUR 751,166, to be reduced by one half: one quarter being the reserved portion of the estate and a further quarter being the amount of which the life tenant (the first applicant ’ s father) could freely dispose. With regard to non-pecuniary damage, the Government submitted that the finding of a violation would constitute in itself adequate just satisfaction. B. Costs and expenses 69. In respect of the costs and expenses relating to their legal representation, the applicants claimed the reimbursement of EUR 76,460. They provided the following supporting documents: (i) EUR 30,094 for fees incurred in the proceedings at first instance (supporting invoice dated 26 October 1999 ); (ii) EUR 14,320 for fees incurred in the proceedings before the High Court of Justice (supporting invoice dated 10 May 2000 ); (iii) EUR 7,611 for fees incurred before the Constitutional Court (supporting invoice dated 30 November 2000 ); (iv) EUR 967 for fees paid to the solicitor in the domestic proceedings (supporting invoices dated 2 November 1999 and 10 November 2000 ); (v) EUR 9,916 for fees incurred in opposing enforcement of the High Court of Justice ’ s judgment of 18 May 2000 (supporting invoice); (vi) EUR 1,171 for fees incurred in having Carolina Pujol Oller ’ s estate valued (supporting invoice dated 10 May 2001 ); (vii) EUR 12,378 for fees incurred in the proceedings before the Court (supporting invoices itemising the costs of defending the applicants before the Court). 70. The Government considered that the amounts claimed by the applicants under this head were exorbitant. In their submission, the costs incurred in the domestic courts should not be taken into consideration. 71. Having regard to the foregoing, the Government requested the Court not to rule at this stage on the question of the application of Article 41 of the Convention, which, in their opinion, was not ready for decision. 72. In the circumstances of the case, the Court considers that the question of the application of Article 41 of the Convention is not ready for decision. Consequently, it must be reserved and the subsequent procedure fixed taking due account of the possibility of an agreement between the respondent State and the applicants (Rule 75 § 1). The Court allows the parties six months in which to reach such agreement. | The Court held that there had been a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the Convention. It noted that the first applicant’s parents had a “legitimate and canonical marriage” and there was nothing in the will in question to suggest that adopted children were excluded. The domestic courts’ decision had amounted to “judicial deprivation of an adopted child’s inheritance rights” which was “blatantly inconsistent with the prohibition of discrimination” (paragraph 59 of the judgment). |
242 | The definition of idem | II. RELEVANT DOMESTIC LAW A. Constitution of 28 June 1996 16. Article 61 of the Constitution provides the following: “No one shall have to bear legal responsibility of the same type for the same offence twice. The legal responsibility of a person is of an individual character.” B. Administrative Offences Code of Ukraine of 7 December 1984 17. Article 173 of the Code, as worded at the material time, provided as follows: “Article 173. Minor disorderly acts ( дрібне хуліганство ) Minor disorderly acts, that is use of obscene language in a public place, offensive behaviour towards others, and other similar acts that breach public order and the peace of citizens, shall be punishable by a fine of between three and seven times the minimum tax-free monthly income or by from one to two months ’ correctional work combined with the withholding of twenty percent of the offender ’ s wages, or – if, in the circumstances of the case and having regard to the offender ’ s character, these measures are not deemed to be sufficient – by up to fifteen days ’ administrative detention ( адміністративний арешт ).” C. Criminal Code of Ukraine of 5 April 2001 18. Article 296 of the Code provides as follows: “Article 296. Disorderly acts (хуліганство) 1. Disorderly acts, namely serious breach of public order motivated by flagrant disrespect of the community, combined with particular impudence and exceptional cynicism, shall be punishable ... 4. The acts, which are provided by the first ... paragraph of this Article, if committed with the use of ... an instrument adjusted specifically or constructed beforehand to inflict bodily injuries, shall be punishable by imprisonment for a period of from three to seven years.” D. Code of Criminal Procedure of 28 December 1960 (in force at the relevant time) 19. The Code provided that criminal proceedings had to be discontinued if there existed a final judgment in relation to the same charge, or a final court resolution or ruling terminating the proceedings on the same ground, or an effective decision of an inquiry officer, investigator or prosecutor terminating the proceedings in relation to the same charge, or an effective decision of the inquiring officer, investigator or prosecutor refusing to open criminal proceedings in relation to the same fact (Article 6 §§ 9-11). THE LAW I. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO THE CONVENTION 20. The applicant complained that he had been tried and punished twice for the same acts. He relied on Article 4 of Protocol No. 7, which reads as follows: “1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. 2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. 3. No derogation from this Article shall be made under Article 15 of the Convention.” A. Admissibility 21. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 22. The applicant maintained his complaint, arguing that he had been unlawfully tried and punished twice for the same offence. 23. Having regard to the severity of the sanction, the Government acknowledged that the administrative proceedings were criminal for the purpose of Article 4 of Protocol No. 7. They submitted that both sets of proceedings concerned the applicant ’ s conduct on 26 January 2002 in the same place. However, the facts that gave rise to administrative proceedings concerned the breach of public order on account of use of obscene language, swinging the wooden chair leg and threats of physical violence. In contrast, the facts that formed the essential element of the criminal charge concerned infliction of bodily injuries and damage to property. For these reasons the Government maintained that the applicant had not been punished twice for the same offence. 2. The Court ’ s assessment (a) Whether the first set of proceedings was criminal in nature 24. The legal characterisation of the procedure under national law cannot be the sole criterion of relevance for the applicability of the principle ne bis in idem under Article 4 § 1 of Protocol No. 7. Otherwise, the application of this provision would be left to the discretion of the Contracting States to a degree that might lead to results incompatible with the object and purpose of the Convention. The notion of “penal procedure” in the text of Article 4 of Protocol No. 7 must be interpreted in the light of the general principles concerning the corresponding words “criminal charge” and “penalty” in Articles 6 and 7 of the Convention respectively (see Nykänen v. Finland, no. 11828/11, § 38, 20 May 2014, with further references). 25. The Court notes that the administrative offence at issue involved a possible sanction of detention up to fifteen days. Having regard to the nature and severity of the sanction, the Court considers that those proceedings were criminal for the purpose of Article 6 (see Galstyan v. Armenia, no. 26986/03, §§ 58-60, 15 November 2007, and Luchaninova v. Ukraine, no. 16347/02, § 39, 9 June 2011). Consequently, they fell within the ambit of “penal procedure” within the meaning of Article 4 of Protocol No. 7. (b) Whether the offences for which the applicant was prosecuted were the same ( idem )? 26. In the case of Sergey Zolotukhin v. Russia (no. 14939/03, ECHR 2009) the Court reviewed the existing approaches to the interpretation of the principle ne bis in idem and concluded that Article 4 of Protocol No. 7 had to be understood as prohibiting the prosecution or trial of a second “offence” in so far as it arose from identical facts or facts which were substantially the same (ibid., § 82). It was therefore important to focus on those facts which constituted a set of concrete factual circumstances involving the same defendant and inextricably linked together in time and space, the existence of which had to be demonstrated in order to secure a conviction or institute criminal proceedings (ibid., § 84). 27. Turning to the present case, the Court notes that both sets of domestic proceedings dealt with the applicant ’ s conduct in the same place and within the same time span. The facts which gave rise to the first conviction for “ minor disorderly acts ” amounted to his (a) using obscene language about bar staff, (b) grabbing and swinging a wooden chair leg, (c) threatening physical violence, and (d) ignoring remarks addressed to him. 28. As to the second conviction for “ disorderly acts ”, it disclosed new relevant facts which were not mentioned in the first case : the infliction of injuries on bar staff and causing damage to bar property. The Court notes that these new elements originated from the same continuous conduct which was only partially described in the first conviction. In particular, it transpires from the second conviction that the applicant not only “ grabbed ” and “ swung ” the wooden chair leg, but used that object to inflict certain injuries on bar staff and to cause damage to property. It follows that the first conviction referred to some of the applicant ’ s movements which were made within a wider continuous action embraced by the same criminal intent of the applicant. Such extraction of movements from the wider context appears to be artificial, especially when the applicant was taken from the bar by the police who had the opportunity to properly and immediately assess the case at the scene of the crime. 29. As regards the other factual elements which were used to secure the applicant ’ s first conviction, the Court notes that the second conviction also referred to the fact that the applicant had been using obscene language, and this constituted a part of the applicant ’ s culpable conduct in the second case. In support of its factual findings, the court cited the victims ’ statements, which indicated that the applicant had threatened physical violence and B. had tried to calm him down. This corresponds to the respective parts of the facts which were used for the first conviction. 30. The Court therefore finds that the facts giving rise to both the applicant ’ s convictions were inextricably linked, and that the domestic courts ’ assessment in the second set of proceedings embraced substantially the same facts which had been examined in the first set of proceedings (compare Sergey Zolotukhin, cited above, § 97). (c) Whether there was a duplication of proceedings ( bis )? 31. The aim of Article 4 of Protocol No. 7 is to prohibit the repetition of proceedings which have been concluded by a “final” decision. A decision is final for the purposes of this provision if it has acquired the force of res judicata. This is the case when it is irrevocable, that is to say when no further ordinary remedies are available, or when the parties have exhausted such remedies or have permitted the time ‑ limit to expire without availing themselves of them (see Sergey Zolotukhin, cited above, §§ 107 and 108, with further references). It is important to point out that Article 4 of Protocol No. 7 does not preclude the reopening of the proceedings, as stated clearly by the second paragraph of Article 4. 32. In the present case the first set of proceedings was terminated on 28 January 2002, when the District Court found the applicant guilty of the minor disorderly acts. That judgment was not open to appeal and was final. The second set of proceedings was instituted on 29 January 2002 and concluded on 27 January 2005, in other words after the judgment in the first set of proceedings had become final. It is remarkable that the trial court did not find the second proceedings problematic in terms of the principle ne bis in idem, dismissing the applicant ’ s argument in this respect on the ground that the first case dealt with a different type of legal responsibility. This reply was commensurate with the applicable procedural rules of domestic law providing no ground for discontinuing criminal proceedings if there had been a previous conviction for an essentially similar administrative offence (see paragraph 19 above). However, in Convention terms both sets of proceedings were criminal for the reasons set out above and it follows that the domestic authorities duplicated criminal proceedings, which concerned substantially the same facts, in breach of the principle ne bis in idem. 33. The Court holds therefore that there has been a violation of Article 4 of Protocol No. 7. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 34. The applicant further complained of other violations of his rights under the Convention. In particular, he alleged that the length of criminal proceedings was not compatible with the requirements of Article 6 § 1 of the Convention and that the conditions of his detention were contrary to Article 3 of the Convention. 35. The Court has examined these complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 36. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 37. The applicant claimed 995,000 Ukrainian hryvnias (“UAH”) in respect of pecuniary damage and UAH 4,000,000 in respect of non ‑ pecuniary damage. 38. The Government submitted that the claims were unfounded. 39. The Court finds no causal link between the violation found and the pecuniary damage claimed. As regards the non-pecuniary damage, the Court considers that in the circumstances of the present case a finding of a violation of Article 4 of Protocol No. 7 to the Convention constitutes in itself sufficient just satisfaction. B. Costs and expenses 40. The applicant also claimed 5,000 for the costs and expenses incurred before the Court. 41. The Government submitted that the claim was not supported by evidence and had to be dismissed as unsubstantiated. 42. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case it has not been shown that the amount claimed had been incurred by the applicant. The Court therefore dismisses the claim. | The Court held that there had been a violation of Article 4 of Protocol No. 7, finding that both sets of proceedings were criminal and that the Ukrainian authorities had duplicated criminal proceedings, which concerned substantially the same facts, in breach of the principle non bis in idem. |
270 | (Suspected) terrorists | II. RELEVANT DOMESTIC LAW A. Criminal law 37. Article 9 of the Criminal Code provides: “The Turkish State shall not accede to a request for the extradition of an alien by a foreign country for offences that are political in nature or related thereto. When called upon to deal with a request by a foreign State for the extradition of an alien, the criminal court with jurisdiction for the place in which the person concerned is located shall determine that person ’ s nationality and the nature of the offence. No request for extradition may be granted if the criminal court finds that the person concerned is a Turkish national or that the offence is political or military in nature or related to such an offence. If the criminal court finds that the person whose extradition is requested is an alien and that the offence is an ordinary criminal offence, the request for extradition may be granted by the Government. ...” B. Extradition 38. Extradition between Turkey and Uzbekistan is governed by the Agreement for Mutual Assistance in Civil, Commercial and Criminal Matters between the Republic of Turkey and the Republic of Uzbekistan, which came into force on 18 December 1997. Under the relevant provision of that agreement, “Each Contracting Party undertakes to extradite to the other, in the circumstances and subject to the conditions set out in this agreement, anyone found in its territory who has been charged with or found guilty of an offence committed within the jurisdiction of the other Party”. III. RELEVANT INTERNATIONAL LAW AND PRACTICE A. The Vienna Convention of 1969 on the Law of Treaties 39. Article 31 of the Vienna Convention of 1969, which is headed “General rule of interpretation”, provides: “1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended.” B. Universal systems of human rights protection 1. The United Nations Human Rights Committee 40. Rule 86 of the Rules of Procedure of the United Nations Human Rights Committee provides: “The Committee may, prior to forwarding its views on the communication to the State Party concerned, inform that State of its views as to whether interim measures may be desirable to avoid irreparable damage to the victim of the alleged violation. In doing so, the Committee shall inform the State Party concerned that such expression of its views on interim measures does not imply a determination on the merits of the communication.” 41. In its decision of 26 July 1994 (in Glen Ashby v. Trinidad and Tobago ), the Committee dealt with the first case of a refusal by a State to comply with interim measures in the form of a request that it stay execution of the death penalty. It pointed out that by ratifying the Optional Protocol, the State Party had undertaken to cooperate with the Committee in proceedings under the Protocol, and that it had not discharged its obligations under the Optional Protocol and the Covenant (Report of the Human Rights Committee, volume I). 42. In its decision of 19 October 2000 (in Dante Piandiong, Jesus Morallos and Archie Bulan v. the Philippines ), the Committee stated: “By adhering to the Optional Protocol, a State Party to the Covenant recognises the competence of the Human Rights Committee to receive and consider communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant (Preamble and Article 1). Implicit in a State ’ s adherence to the Protocol is an undertaking to cooperate with the Committee in good faith so as to permit and enable it to consider such communications, and after examination to forward its views to the State Party and to the individual (Article 5 §§ 1 and 4). It is incompatible with these obligations for a State Party to take any action that would prevent or frustrate the Committee in its consideration and examination of the communication, and in the expression of its Views. Quite apart, then, from any violation of the Covenant charged to a State Party in a communication, a State Party commits grave breaches of its obligations under the Optional Protocol if it acts to prevent or frustrate consideration by the Committee of a communication alleging a violation of the Covenant, or to render examination by the Committee moot and the expression of its Views nugatory and futile. ... ... Interim measures pursuant to Rule 86 of the Committee ’ s rules adopted in conformity with Article 39 of the Covenant, are essential to the Committee ’ s role under the Protocol. Flouting of the Rule, especially by irreversible measures such as the execution of the alleged victim or his/her deportation from the country, undermines the protection of Covenant rights through the Optional Protocol.” The Committee reiterated this principle in its decision of 15 May 2003 (in Sholam Weiss v. Austria ). 2. The United Nations Committee against Torture 43. Rule 108 § 9 of the Rules of Procedure of the Committee against Torture enables provisional measures to be adopted in proceedings brought by individuals alleging a violation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It reads as follows: “In the course of the consideration of the question of the admissibility of a communication, the Committee or the working group or a special rapporteur designated under Rule 106, paragraph 3, may request the State Party to take steps to avoid possible irreparable damage to the person or persons who claim to be victim(s) of the alleged violation. Such a request addressed to the State Party does not imply that any decision has been reached on the question of the admissibility of the communication.” 44. In the case of a Peruvian citizen resident in Venezuela who was extradited to Peru despite the fact that a stay of her extradition had been called for as a provisional measure (see Cecilia Rosana Núñez Chipana v. Venezuela, decision of 10 November 1998), the Committee against Torture expressed the view that the State had failed to “comply with the spirit of the Convention”. It noted the following: “... the State Party, in ratifying the Convention and voluntarily accepting the Committee ’ s competence under Article 22, undertook to cooperate with it in good faith in applying the procedure. Compliance with the provisional measures called for by the Committee in cases it considers reasonable is essential in order to protect the person in question from irreparable harm, which could, moreover, nullify the end result of the proceedings before the Committee.” 45. In another decision that concerned the extradition to India of an Indian national resident in Canada (see T.P.S. v. Canada, decision of 16 May 2000) despite the fact that Canada had been requested to stay the extradition as a provisional measure, the Committee against Torture reiterated that failure to comply with the requested provisional measures “... could ... nullify the end result of the proceedings before the Committee”. C. The International Court of Justice (ICJ) 46. Article 41 of the Statute of the ICJ provides: “1. The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party. 2. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council.” 47. The ICJ has pointed out in a number of cases that the purpose of provisional measures is to preserve the respective rights of the parties to the dispute (see, among other authorities, the judgment of 27 June 1986 in Nicaragua v. the United States of America ). In an order of 13 September 1993 in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), the ICJ stated that the power of the court to indicate provisional measures “... has as its object to preserve the respective rights of the parties pending the decision of the Court, and presupposes that irreparable prejudice should not be caused to rights which are the subject of dispute in judicial proceedings; and ... the Court must be concerned to preserve by such measures the rights which may subsequently be adjudged by the Court to belong either to the Applicant or to the Respondent”. 48. In its judgment of 27 June 2001 in LaGrand (Germany v. the United States of America), it noted: “102. ... The context in which Article 41 has to be seen within the Statute is to prevent the Court from being hampered in the exercise of its functions because the respective rights of the parties to a dispute before the Court are not preserved. It follows from the object and purpose of the Statute, as well as from the terms of Article 41 when read in their context, that the power to indicate provisional measures entails that such measures should be binding, inasmuch as the power in question is based on the necessity, when the circumstances call for it, to safeguard, and to avoid prejudice to, the rights of the parties as determined by the final judgment of the Court. The contention that provisional measures indicated under Article 41 might not be binding would be contrary to the object and purpose of that Article. 103. A related reason which points to the binding character of orders made under Article 41 and to which the Court attaches importance, is the existence of a principle which has already been recognised by the Permanent Court of International Justice when it spoke of ‘ the principle universally accepted by international tribunals and likewise laid down in many conventions ... to the effect that the parties to a case must abstain from any measure capable of exercising a prejudicial effect in regard to the execution of the decision to be given, and, in general, not allow any step of any kind to be taken which might aggravate or extend the dispute ’ ( Electricity Company of Sofia and Bulgaria, Order of 5 December 1939 ...).” This approach was subsequently confirmed in the court ’ s judgment of 31 March 2004 in Avena and other Mexican nationals (Mexico v. the United States of America). D. The Inter-American system of human rights protection 1. The Inter-American Commission on Human Rights 49. Rule 25 of the Rules of Procedure of the Inter-American Commission on Human Rights provides: “1. In serious and urgent cases, and whenever necessary according to the information available, the Commission may, on its own initiative or at the request of a party, request that the State concerned adopt precautionary measures to prevent irreparable harm to persons. 2. If the Commission is not in session, the President, or, in his or her absence, one of the Vice-Presidents, shall consult with the other members, through the Executive Secretariat, on the application of the provision in the previous paragraph. If it is not possible to consult within a reasonable period of time under the circumstances, the President or, where appropriate, one of the Vice-Presidents shall take the decision on behalf of the Commission and shall so inform its members. 3. The Commission may request information from the interested parties on any matter related to the adoption and observance of the precautionary measures. 4. The granting of such measures and their adoption by the State shall not constitute a prejudgment on the merits of a case.” 50. The scope of the precautionary measures is determined by reference to the scope of the recommendations made by the Commission in respect of the individual petition. In its judgment of 17 September 1997 in Loayza Tamayo v. Peru, the Inter-American Court of Human Rights ruled that the State “has the obligation to make every effort to apply the recommendations of a protection organ such as the Inter-American Commission, which is, indeed, one of the principal organs of the Organisation of American States, whose function is ‘ to promote the observance and defence of human rights ’ ...”. 2. The Inter-American Court of Human Rights 51. Article 63 § 2 of the American Convention on Human Rights states: “In cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the Court shall adopt such provisional measures as it deems pertinent in matters it has under consideration. With respect to a case not yet submitted to the Court, it may act at the request of the Commission.” 52. Rule 25 of the Rules of Procedure of the Inter-American Court of Human Rights provides: “1. At any stage of the proceedings involving cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the Court may, at the request of a party or on its own motion, order such provisional measures as it deems pertinent, pursuant to Article 63 § 2 of the Convention. 2. With respect to matters not yet submitted to it, the Court may act at the request of the Commission. 3. The request may be made to the President, to any judge of the Court, or to the Secretariat, by any means of communication. In every case, the recipient of the request shall immediately bring it to the President ’ s attention. 4. If the Court is not sitting, the President, in consultation with the Permanent Commission and, if possible, with the other judges, shall call upon the government concerned to adopt such urgent measures as may be necessary to ensure the effectiveness of any provisional measures that may be ordered by the Court at its next session. 5. The Court, or its President if the Court is not sitting, may convoke the parties to a public hearing on provisional measures. 6. In its Annual Report to the General Assembly, the Court shall include a statement concerning the provisional measures ordered during the period covered by the report. If those measures have not been duly implemented, the Court shall make such recommendations as it deems appropriate.” 53. The Inter-American Court has stated on several occasions that compliance with provisional measures is necessary to ensure the effectiveness of its decisions on the merits (see, among other authorities, the following orders: 1 August 1991, Chunimá v. Guatemala; 2 July and 13 September 1996, 11 November 1997 and 3 February 2001, Loayza Tamayo v. Peru; 25 May and 25 September 1999, 16 August and 24 November 2000, and 3 September 2002, James et al. v. Trinidad and Tobago; 7 and 18 August 2000, and 26 May 2001, Haitians and Dominican nationals of Haitian origin in the Dominican Republic v. the Dominican Republic; 10 August and 12 November 2000, and 30 May 2001, Alvarez et al. v. Colombia; see also the judgment of 21 June 2002, Hilaire, Constantine, Benjamin et al. v. Trinidad and Tobago ). In two orders requiring provisional measures, the Inter-American Court of Human Rights ruled that the States Parties to the American Convention on Human Rights “must fully comply in good faith ( pacta sunt servanda ) with all of the provisions of the Convention, including those relative to the operation of the two supervisory organs of the American Convention [the Court and the Commission]; and that, in view of the Convention ’ s fundamental objective of guaranteeing the effective protection of human rights (Articles 1 § 1, 2, 51 and 63 § 2), States Parties must refrain from taking actions that may frustrate the restitutio in integrum of the rights of the alleged victims” (see the orders of 25 May and 25 September 1999 in James et al. v. Trinidad and Tobago ). THE LAW I. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION 56. The applicants alleged that their extradition to the Republic of Uzbekistan had breached Articles 2 and 3 of the Convention, which provide: Article 2 “1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” In view of the facts of the case, the Court will first examine this complaint under Article 3. A. The Chamber judgment 57. The Chamber found that the reason it had not been possible for any conclusive findings of fact to be made was that the applicants had been denied an opportunity to have additional inquiries made in order to obtain evidence in support of their allegations under Article 3 of the Convention. It considered that there was insufficient evidence before it to conclude that there had been a violation of that provision (see paragraphs 74 and 77 of the Chamber judgment). B. The parties ’ submissions 1. The applicants 58. The lawyers representing the applicants said that at the time of the latter ’ s extradition there were substantial grounds for believing that their return to Uzbekistan would result in their being subjected to treatment proscribed by Article 3. In that connection, they denounced the poor conditions and use of torture in Uzbek prisons. 59. In support of their allegations, they referred to reports by “international investigative bodies” in the human rights field denouncing both an administrative practice of torture and other forms of ill-treatment of political dissidents, and the Uzbek regime ’ s repressive policy towards dissidents. 60. They stated that the applicants had denied the charges in the extradition proceedings in Turkey and adduced relevant evidence in their defence. Accordingly, the fact that the applicants, who were denied the right to legal assistance from a lawyer of their choosing, had fully admitted the same charges to the Uzbek authorities showed that they had been forced through torture and ill-treatment to “confess” to crimes they had not committed. 2. The Government 61. The Government maintained that in extradition proceedings Article 3 should only apply in cases in which it was certain that the prohibited treatment or punishment would be inflicted in the requesting State and in which the person concerned had produced strong evidence that substantial grounds existed for believing that he or she faced torture or ill-treatment. 62. The Government observed that the applicants had been extradited after assurances had been obtained from the Uzbek authorities. Those assurances included an undertaking not to impose the death penalty and to ensure that the applicants would not be subjected to torture or ill-treatment or be liable to confiscation of their property generally. The Uzbek authorities had given an assurance that the Republic of Uzbekistan, which was a party to the United Nations Convention against Torture, accepted and reaffirmed its obligation to comply with the requirements of that convention both as regards Turkey and the international community as a whole. Furthermore, the reports of the human rights organisations did not contain any information to support the allegations of treatment contrary to Article 3. 63. The Government noted that the applicants, who had been charged with acts of terrorism, had been sentenced by the Uzbekistan Supreme Court to twenty and eleven years ’ imprisonment respectively and that their trial had been attended by some eighty people, including officials from the Turkish and other embassies and representatives of Helsinki Watch. They added that the applicants had been visited in prison in Uzbekistan by two officials from the Turkish embassy whom they had informed that they had not been subjected to ill-treatment either before or after their trial. 64. The Government argued that Article 3 was not to be construed in a way that would engage the extraditing State ’ s responsibility indefinitely. The State ’ s responsibility should end once the extradited person had been found guilty and had started to serve his or her sentence. It would be straining the language of Article 3 intolerably to hold that by surrendering a suspect in accordance with the terms of an extradition agreement, the extraditing State had subjected him to the treatment or punishment he received after his conviction and sentence in the receiving State. Such a decision would interfere with rights under international treaties and conflict with the norms of international judicial process, as it would entail adjudication on the internal affairs of foreign States that were not Parties to the Convention. There was a risk that it would cause serious harm to the Contracting State by restricting its ability to cooperate in the fight against international terrorism and organised crime. 3. Third-party interveners 65. Human Rights Watch and the AIRE Centre referred to the repression of independent Muslims in Uzbekistan at the material time; in particular, they said that close relatives of the applicants ’ co-accused had been subjected to torture and political prisoners had died as a result of ill-treatment received in Uzbek prisons. Furthermore, in view of the political situation obtaining in Uzbekistan and the lack of effective judicial supervision of the security forces, the assurances that had been obtained from the Uzbek government did not constitute a sufficient guarantee for the applicants. C. The Court ’ s assessment 1. The relevant principles 66. The Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens. The right to political asylum is not contained in either the Convention or its Protocols (see Vilvarajah and Others v. the United Kingdom, judgment of 30 October 1991, Series A no. 215, p. 34, § 102). 67. It is the settled case-law of the Court that extradition by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question would, if extradited, face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. The establishment of such responsibility inevitably involves an assessment of conditions in the requesting country against the standards of Article 3 of the Convention. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment (see Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, pp. 35-36, §§ 89-91). 68. It would hardly be compatible with the “common heritage of political traditions, ideals, freedom and the rule of law” to which the Preamble refers, were a Contracting State knowingly to surrender a person to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture or inhuman or degrading treatment or punishment (see Soering, cited above, pp. 34-35, § 88). 69. In determining whether substantial grounds have been shown for believing that a real risk of treatment contrary to Article 3 exists, the Court will assess the issue in the light of all the material placed before it or, if necessary, material obtained proprio motu. Since the nature of the Contracting States ’ responsibility under Article 3 in cases of this kind lies in the act of exposing an individual to the risk of ill-treatment, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of the extradition; the Court is not precluded, however, from having regard to information which comes to light subsequent to the extradition. This may be of value in confirming or refuting the appreciation that has been made by the Contracting Party of the well-foundedness or otherwise of an applicant ’ s fears (see Cruz Varas and Others v. Sweden, judgment of 20 March 1991, Series A no. 201, pp. 29-30, §§ 75-76, and Vilvarajah and Others, cited above, p. 36, § 107). However, if the applicant has not been extradited or deported when the Court examines the case, the relevant time will be that of the proceedings before the Court (see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1856, §§ 85-86). This situation typically arises when deportation or extradition is delayed as a result of an indication by the Court of an interim measure under Rule 39 of the Rules of Court. Such an indication means more often than not that the Court does not yet have before it all the relevant evidence it requires to determine whether there is a real risk of treatment proscribed by Article 3 in the country of destination. 70. Furthermore, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment or punishment, the manner and method of its execution, its duration and its physical or mental effects (see Vilvarajah and Others, cited above, p. 36, § 107). Allegations of ill-treatment must be supported by appropriate evidence (see, mutatis mutandis, Klaas v. Germany, judgment of 22 September 1993, Series A no. 269, pp. 17-18, § 30). 2. Application of the above principles to the present case 71. For an issue to be raised under Article 3, it must be established that at the time of their extradition there existed a real risk that the applicants would be subjected in Uzbekistan to treatment proscribed by Article 3. 72. The Court has noted the applicants ’ representatives ’ observations on the information in the reports of international human rights organisations denouncing an administrative practice of torture and other forms of ill-treatment of political dissidents, and the Uzbek regime ’ s repressive policy towards such dissidents. It notes that Amnesty International stated in its report for 2001: “Reports of ill-treatment and torture by law enforcement officials of alleged supporters of banned Islamist opposition parties and movements ... continued ...” (see paragraph 55 above). 73. However, although these findings describe the general situation in Uzbekistan, they do not support the specific allegations made by the applicants in the instant case and require corroboration by other evidence. 74. The applicants were extradited to Uzbekistan on 27 March 1999, despite the interim measure that had been indicated by the Court under Rule 39 (see paragraphs 24-27 above). It is, therefore, that date that must be taken into consideration when assessing whether there was a real risk of their being subjected in Uzbekistan to treatment proscribed by Article 3. 75. By applying Rule 39, the Court indicated that it was not able on the basis of the information then available to make a final decision on the existence of a real risk. Had Turkey complied with the measure indicated under Rule 39, the relevant date would have been the date of the Court ’ s consideration of the case in the light of the evidence that had been adduced (see paragraph 69 above and Chahal, cited above, p. 1856, §§ 85-86). Turkey ’ s failure to comply with the indication given by the Court has prevented the Court from following its normal procedure. Nevertheless, the Court cannot speculate as to what the outcome of the case would have been had the extradition been deferred as it had requested. For this reason, it will have to assess Turkey ’ s responsibility under Article 3 by reference to the situation that obtained on 27 March 1999. 76. The Court notes that the Government have contended that the applicants were extradited after an assurance had been obtained from the Uzbek government. The terms of the document indicate that the assurance that “[t]he applicants ’ property will not be liable to general confiscation, and the applicants will not be subjected to acts of torture or sentenced to capital punishment” was given by the Public Prosecutor of the Republic of Uzbekistan, who added: “The Republic of Uzbekistan is a party to the United Nations Convention against Torture and accepts and reaffirms its obligation to comply with the requirements of the provisions of that Convention as regards both Turkey and the international community as a whole”. The Government also produced medical reports from the doctors of the Uzbek prisons in which Mr Mamatkulov and Mr Askarov are being held (see paragraphs 28 and 34 above). 77. In the light of the material before it, the Court is not able to conclude that substantial grounds existed at the aforementioned date for believing that the applicants faced a real risk of treatment proscribed by Article 3. Turkey ’ s failure to comply with the indication given under Rule 39, which prevented the Court from assessing whether a real risk existed in the manner it considered appropriate in the circumstances of the case, must be examined below under Article 34. Consequently, no violation of Article 3 of the Convention can be found. 78. Having considered the applicants ’ allegations under Article 3 (see paragraphs 71-77 above), the Court finds that it is not necessary to examine them separately under Article 2. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 79. The applicants complained of the unfairness of the extradition proceedings in Turkey and the criminal proceedings in Uzbekistan. They relied on Article 6 § 1 of the Convention, the relevant part of which provides: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ...” A. The Chamber judgment 80. The Chamber found that Article 6 § 1 was not applicable to the extradition proceedings in Turkey (see paragraphs 80-81 of the Chamber judgment). As to the criminal proceedings in Uzbekistan, it found that the evidence produced to it did not establish that the applicants had been denied a fair trial and that no separate question arose under Article 6 § 1 on this point (see paragraph 87 of the Chamber judgment). B. The extradition proceedings in Turkey 81. The applicants alleged that they had not had a fair hearing in the criminal court that had ruled on the request for their extradition, in that they had been unable to gain access to all the material in the case file or to put forward their arguments concerning the characterisation of the offences they were alleged to have committed. 82. The Court reiterates that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant ’ s civil rights or obligations or of a criminal charge against him, within the meaning of Article 6 § 1 of the Convention (see Maaouia v. France [GC], no. 39652/98, § 40, ECHR 2000-X; Penafiel Salgado v. Spain (dec.), no. 65964/01, 16 April 2002; and Sardinas Albo v. Italy (dec.), no. 56271/00, ECHR 2004-I). 83. Consequently, Article 6 § 1 of the Convention is not applicable in the instant case. C. The criminal proceedings in Uzbekistan 84. The applicants submitted that they had no prospect of receiving a fair trial in their country of origin and faced a real risk of being sentenced to death and executed. They argued in that connection that the Uzbek judicial authorities were not independent of the executive. 85. The applicants ’ representatives alleged that the applicants had been held incommunicado until the start of their trial and had not been permitted representation by a lawyer of their choosing. They said that the depositions on which the finding of guilt had been based had been extracted under torture. 86. The Government maintained that the applicants ’ extradition could not engage the State ’ s responsibility under Article 6 § 1 of the Convention. 87. Two of the intervening parties, Human Rights Watch and the AIRE Centre, pointed out that the applicants had been held incommunicado until their trial started and that, as they had been assigned lawyers by the prosecutor in charge of the investigation, they had not been able to obtain representation by a lawyer of their choosing. 88. The Court observes that in Soering (cited above, p. 45, § 113), it held: “The right to a fair trial in criminal proceedings, as embodied in Article 6, holds a prominent place in a democratic society ... The Court does not exclude that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial ...” 89. The Court notes that in the instant case the applicants were handed over to the Uzbek authorities on 27 March 1999. On 28 June 1999 the Supreme Court of the Republic of Uzbekistan found Mr Mamatkulov and Mr Askarov guilty of various offences and sentenced them to twenty and eleven years ’ imprisonment respectively (see paragraph 32 above). 90. The Court considers that, like the risk of treatment proscribed by Article 2 and/or Article 3, the risk of a flagrant denial of justice in the country of destination must primarily be assessed by reference to the facts which the Contracting State knew or should have known when it extradited the persons concerned. When extradition is deferred following an indication by the Court under Rule 39, the risk of a flagrant denial of justice must also be assessed in the light of the information available to the Court when it considers the case (see, mutatis mutandis, paragraphs 75-77 above). 91. The applicants were extradited to Uzbekistan on 27 March 1999. Although, in the light of the information available, there may have been reasons for doubting at the time that they would receive a fair trial in the State of destination, there is not sufficient evidence to show that any possible irregularities in the trial were liable to constitute a flagrant denial of justice within the meaning of paragraph 113 of Soering, cited above. Turkey ’ s failure to comply with the indication given by the Court under Rule 39 of the Rules of Court, which prevented the Court from obtaining additional information to assist it in its assessment of whether there was a real risk of a flagrant denial of justice, will be examined below with respect to Article 34. Consequently, no violation of Article 6 § 1 of the Convention can be found. III. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION 92. The applicants ’ representatives maintained that, by extraditing Mr Mamatkulov and Mr Askarov despite the measure indicated by the Court under Rule 39 of the Rules of Court, Turkey had failed to comply with its obligations under Article 34 of the Convention. Article 34 of the Convention provides: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” Rule 39 of the Rules of Court provides: “1. The Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it. 2. Notice of these measures shall be given to the Committee of Ministers. 3. The Chamber may request information from the parties on any matter connected with the implementation of any interim measure it has indicated.” A. The Chamber judgment 93. In its judgment of 6 February 2003, the Chamber found as follows: “110. ... any State Party to the Convention to which interim measures have been indicated in order to avoid irreparable harm being caused to the victim of an alleged violation must comply with those measures and refrain from any act or omission that will undermine the authority and effectiveness of the final judgment. 111. Consequently, by failing to comply with the interim measures indicated by the Court under Rule 39 of the Rules of Court, Turkey is in breach of its obligations under Article 34 of the Convention.” B. The parties ’ submissions 1. The applicants 94. The applicants ’ representatives stated that, despite requests to the authorities, they had been unable to contact their clients following the latter ’ s extradition. The applicants had consequently been deprived of the possibility of having further inquiries made in order to obtain evidence in support of their allegations under Article 3. The applicants ’ extradition had thus proved a real obstacle to the effective presentation of their application to the Court. 2. The Government 95. The Government submitted that no separate issue arose under Article 34 of the Convention, as the complaint under that provision was the same as the one that the applicants had raised under Article 3 of the Convention, which the Government said was unfounded. 96. As regards the effects of the interim measures the Court had indicated in the instant case under Rule 39, the Government referred to Cruz Varas and Others, cited above, as authority for the proposition that the Contracting States had no legal obligation to comply with such indications. 97. In the Government ’ s submission, it was clear from the very terms of the letter indicating the interim measure in the instant case that the measure was not intended to be binding. International courts operated within the scope of the powers conferred upon them by international treaties. If the treaty did not grant them power to order binding interim measures, then no such power existed. 3. Third-party intervener 98. The International Commission of Jurists submitted that in the light of the general principles of international law, the law of treaties and international case-law, interim measures indicated under Rule 39 of the Rules of Court were binding on the State concerned. C. The Court ’ s assessment 99. The fact that the Government failed to comply with the measures indicated by the Court under Rule 39 of the Rules of Court raises the issue of whether the respondent State is in breach of its undertaking under Article 34 of the Convention not to hinder the applicants in the exercise of their right of individual application. 1. General considerations (a) Exercise of the right of individual application 100. The Court has previously stated that the provision concerning the right of individual application (Article 34, formerly Article 25 of the Convention before Protocol No. 11 came into force) is one of the fundamental guarantees of the effectiveness of the Convention system of human rights protection. In interpreting such a key provision, the Court must have regard to the special character of the Convention as a treaty for the collective enforcement of human rights and fundamental freedoms. Unlike international treaties of the classic kind, the Convention comprises more than mere reciprocal engagements between Contracting States. It creates, over and above a network of mutual, bilateral undertakings, objective obligations which, in the words of the Preamble, benefit from a ‘ collective enforcement ’ (see, mutatis mutandis, Loizidou v. Turkey (preliminary objections), judgment of 23 March 1995, Series A no. 310, p. 26, § 70). 101. The object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective, as part of the system of individual applications. In addition, any interpretation of the rights and freedoms guaranteed has to be consistent with “the general spirit of the Convention, an instrument designed to maintain and promote the ideals and values of a democratic society” (see Soering, cited above, p. 34, § 87, and, mutatis mutandis, Klass and Others v. Germany, judgment of 6 September 1978, Series A no. 28, p. 18, § 34). 102. The undertaking not to hinder the effective exercise of the right of individual application precludes any interference with the individual ’ s right to present and pursue his complaint before the Court effectively. That issue has been considered by the Court in previous decisions. It is of the utmost importance for the effective operation of the system of individual application instituted under Article 34 that applicants or potential applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints. As the Court has noted in previous decisions, “pressure” includes not only direct coercion and flagrant acts of intimidation against actual or potential applicants, members of their family or their legal representatives, but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a Convention remedy (see, among other authorities, Petra v. Romania, judgment of 23 September 1998, Reports 1998-VII, pp. 2854-55, § 43; Kurt v. Turkey, judgment of 25 May 1998, Reports 1998-III, p. 1192, § 159; Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996-VI, p. 2288, § 105; and Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, p. 1219, § 105). For present purposes, the Court concludes that the obligation set out in Article 34 in fine requires the Contracting States to refrain not only from exerting pressure on applicants, but also from any act or omission which, by destroying or removing the subject matter of an application, would make it pointless or otherwise prevent the Court from considering it under its normal procedure. (b) Indication of interim measures under the Convention system 103. Rule 39 of the Rules of Court empowers a Chamber or, where appropriate, its President, to indicate interim measures. The grounds on which Rule 39 may be applied are not set out in the Rules of Court but have been determined by the Court through its case-law. As was the practice of the European Commission of Human Rights prior to the entry into force of Protocol No. 11 to the Convention in 1998, the Court applies Rule 39 only in restricted circumstances. 104. Interim measures have been indicated only in limited spheres. Although it does receive a number of requests for interim measures, in practice the Court applies Rule 39 only if there is an imminent risk of irreparable damage. While there is no specific provision in the Convention concerning the domains in which Rule 39 will apply, requests for its application usually concern the right to life (Article 2), the right not to be subjected to torture or inhuman treatment (Article 3) and, exceptionally, the right to respect for private and family life (Article 8) or other rights guaranteed by the Convention. The vast majority of cases in which interim measures have been indicated concern deportation and extradition proceedings. 105. In most cases, measures are indicated to the respondent Government, although there is nothing to stop the Court from indicating measures to applicants (see, among other authorities, Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 11, ECHR 2004-VII). Cases of States failing to comply with indicated measures remain very rare. 106. Rule 36 of the Rules of Procedure of the European Commission of Human Rights, which came into force on 13 December 1974, provided: “The Commission, or when it is not in session, the President may indicate to the parties any interim measure the adoption of which seems desirable in the interest of the parties or the proper conduct of the proceedings before it.” Even before the provisions regulating the question of interim measures came into force, the Commission had not hesitated to ask respondent Governments for a stay of execution of measures liable to make the application pending before it devoid of purpose. The Commission adopted that practice very early on, particularly in extradition and deportation cases, and the States concerned proved very cooperative (see, inter alia : Greece v. the United Kingdom, no. 176/56, Commission ’ s report of 26 September 1958, unpublished; X v. the Federal Republic of Germany, no. 2396/65, Commission ’ s report of 19 December 1969, Yearbook 13; Denmark, Norway, Sweden and the Netherlands v. Greece, nos. 3321/67, 3322/67, 3323/67 and 3344/67, Commission ’ s report of 5 November 1969, Yearbook 12; Denmark, Norway and Sweden v. Greece, no. 4448/70, Commission ’ s report of 4 October 1976, Decisions and Reports (DR) 6; and E.R. v. the Federal Republic of Germany, no. 5207/71, Commission decision of 13 December 1971, Collection of Decisions 39). In Brückmann v. the Federal Republic of Germany (no. 6242/73, Commission ’ s report of 14 July 1976, DR 6), the respondent State even stayed the execution of a domestic measure of its own motion while the case was pending before the Commission. 107. Rule 36 of the Rules of the former Court, which came into force on 1 January 1983, provided: “1. Before the constitution of a Chamber, the President of the Court may, at the request of a Party, of the Commission, of the applicant or of any other person concerned, or proprio motu, indicate to any Party and, where appropriate, the applicant, any interim measure which it is advisable for them to adopt. The Chamber when constituted or, if the Chamber is not in session, its President shall have the same power. ...” The most noteworthy case concerning the indication of interim measures by the former Court is Soering, cited above, in which the Court indicated to the British Government under Rule 36 of its Rules that it would be undesirable to extradite the applicant to the United States while the proceedings were pending in Strasbourg. In order to abide by the Convention and the Court ’ s decision, the British Government were forced to default on their undertaking to the United States (p. 17, § 31, and pp. 44-45, § 111). Thus, the judgment resolved the conflict in this case between a State Party ’ s Convention obligations and its obligations under an extradition treaty with a third-party State by giving precedence to the former. 2. Did the applicants ’ extradition hinder the effective exercise of the right of application? 108. In cases such as the present one where there is plausibly asserted to be a risk of irreparable damage to the enjoyment by the applicant of one of the core rights under the Convention, the object of an interim measure is to maintain the status quo pending the Court ’ s determination of the justification for the measure. As such, being intended to ensure the continued existence of the matter that is the subject of the application, the interim measure goes to the substance of the Convention complaint. As far as the applicant is concerned, the result that he or she wishes to achieve through the application is the preservation of the asserted Convention right before irreparable damage is done to it. Consequently, the interim measure is sought by the applicant, and granted by the Court, in order to facilitate the “effective exercise” of the right of individual petition under Article 34 of the Convention in the sense of preserving the subject matter of the application when that is judged to be at risk of irreparable damage through the acts or omissions of the respondent State. In the present case, because of the extradition of the applicants to Uzbekistan, the level of protection which the Court was able to afford the rights which they were asserting under Articles 2 and 3 of the Convention was irreversibly reduced. In addition, the Court considers that it is implicit in the notion of the effective exercise of the right of application that for the duration of the proceedings in Strasbourg the Court should remain able to examine the application under its normal procedure. In the present case, the applicants were extradited and thus, by reason of their having lost contact with their lawyers, denied an opportunity to have further inquiries made in order for evidence in support of their allegations under Article 3 of the Convention to be obtained. As a consequence, the Court was prevented from properly assessing whether the applicants were exposed to a real risk of ill-treatment and, if so, from ensuring in this respect a “practical and effective” implementation of the Convention ’ s safeguards, as required by its object and purpose (see paragraph 101 above). 109. The Court has previously considered whether, in the absence of an express clause in the Convention, its organs could derive from Article 34 (former Article 25), taken alone or in conjunction with Rule 39 (former Rule 36), or from any other source, the power to order interim measures that were binding (see Cruz Varas and Others, cited above, and Čonka v. Belgium (dec.), no. 51564/99, 13 March 2001). In those cases it concluded that such a power could not be inferred from either Article 34, in fine, or from other sources (see Cruz Varas and Others, pp. 36-37, §§ 102-03). 110. In examining the present case, the Court will also have regard to general principles of international law and the view expressed on this subject by other international bodies since Cruz Varas and Others. 111. The Court reiterates in that connection that the Convention must be interpreted in the light of the rules set out in the Vienna Convention of 23 May 1969 on the Law of Treaties, Article 31 § 3 (c) of which states that account must be taken of “any relevant rules of international law applicable in the relations between the parties”. The Court must determine the responsibility of the States in accordance with the principles of international law governing this sphere, while taking into account the special nature of the Convention as an instrument of human rights protection (see Golder v. the United Kingdom, judgment of 21 February 1975, Series A no. 18, p. 14, § 29). Thus, the Convention must be interpreted so far as possible consistently with the other principles of international law of which it forms a part (see Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 60, ECHR 2001-XI). 112. Different rules apply to interim, provisional or precautionary measures, depending on whether the complaint is made under the individual petition procedures of the United Nations organs, or the Inter-American Court and Commission, or under the procedure for the judicial settlement of disputes of the ICJ. In some instances provision is made for such measures in the treaty itself and in others in the rules of procedure (see paragraphs 40, 43, 46, 49, 51 and 52 above). 113. In a number of recent decisions and orders, international courts and institutions have stressed the importance and purpose of interim measures and pointed out that compliance with such measures was necessary to ensure the effectiveness of their decisions on the merits. In proceedings concerning international disputes, the purpose of interim measures is to preserve the parties ’ rights, thus enabling the body hearing the dispute to give effect to the consequences which a finding of responsibility following adversarial process will entail. 114. Thus, under the jurisprudence of the Human Rights Committee of the United Nations, a failure to comply with interim measures constitutes a breach by the State concerned of its legal obligations under the International Covenant on Civil and Political Rights and the Optional Protocol thereto, and of its duty to cooperate with the Committee under the individual communications procedure (see paragraphs 41 and 42 above). 115. The United Nations Committee against Torture has considered the issue of a State Party ’ s failure to comply with interim measures on a number of occasions. It has ruled that compliance with interim measures which the Committee considered reasonable was essential in order to protect the person in question from irreparable harm, which could nullify the end result of the proceedings before the Committee (see paragraphs 44 and 45 above). 116. In various orders concerning provisional measures, the Inter-American Court of Human Rights has stated that in view of the fundamental objective of the American Convention on Human Rights, namely guaranteeing the effective protection of human rights, “States Parties [had to] refrain from taking actions that may frustrate the restitutio in integrum of the rights of the alleged victims” (see the orders of 25 May and 25 September 1999 in James et al. v. Trinidad and Tobago ). 117. In its judgment of 27 June 2001 in LaGrand (Germany v. the United States of America), the ICJ stated: “The object and purpose of the Statute is to enable the Court to fulfil the functions provided for therein, and in particular, the basic function of judicial settlement of international disputes by binding decisions in accordance with Article 59 of the Statute. The [purpose of] Article 41 ... is to prevent the Court from being hampered in the exercise of its functions because the respective rights of the parties to a dispute before the Court are not preserved. It follows from the object and purpose of the Statute, as well as from the terms of Article 41 when read in their context, that the power to indicate provisional measures entails that such measures should be binding, inasmuch as the power in question is based on the necessity, when the circumstances call for it, to safeguard, and to avoid prejudice to, the rights of the parties as determined by the final judgment of the Court. The contention that provisional measures indicated under Article 41 might not be binding would be contrary to the object and purpose of that Article.” Furthermore, in that judgment, the ICJ brought to an end the debate over the strictly linguistic interpretation of the words “power to indicate” (“ pouvoir d ’ indiquer ” in the French text) in the first paragraph of Article 41 and “suggested” (“ indication ” in the French text) in the second paragraph. Referring to Article 31 of the Vienna Convention on the Law of Treaties, which provides that treaties shall be interpreted in the light of their object and purpose, it held that provisional measures were legally binding. This approach was subsequently confirmed in the court ’ s judgment of 31 March 2004 in Avena and other Mexican nationals (Mexico v. the United States of America) (see paragraph 48 above). 118. The Court observes that in Cruz Varas and Others (cited above) it determined the question whether the European Commission of Human Rights had power under former Article 25 § 1 of the Convention (now Article 34) to order interim measures that are binding. It noted that that Article applied only to proceedings brought before the Commission and imposed an obligation not to interfere with the right of the individual to present his or her complaint to the Commission and to pursue it. It added that Article 25 conferred upon an applicant a right of a procedural nature distinguishable from the substantive rights set out in Section I of the Convention or the Protocols to the Convention. The Court thus confined itself to examining the Commission ’ s power to order interim measures, not its own. It considered the indication that had been given in the light of the nature of the proceedings before the Commission and of the Commission ’ s role and concluded: “Where the State has had its attention drawn in this way to the dangers of prejudicing the outcome of the issue then pending before the Commission any subsequent breach of Article 3 ... would have to be seen as aggravated by the failure to comply with the indication” ( Cruz Varas and Others, cited above, pp. 36-37, § 103). 119. The Court emphasises in that connection that, unlike the Court and the Committee of Ministers, the Commission had no power to issue a binding decision that a Contracting State had violated the Convention. The Commission ’ s task with regard to the merits was of a preliminary nature and its opinion on whether or not there had been a violation of the Convention was not binding. 120. In Čonka (decision cited above) the Court referred to the argument set out in paragraph 109 above and added: “The Belgian authorities expelled the applicants the same day ..., without giving any reasons for their decision to ignore the measures that had been indicated under Rule 39 of the Rules of Court. In view of the settled practice of complying with such indications, which are given only in exceptional circumstances, such a manner of proceeding is difficult to reconcile with ‘ good faith co-operation with the Court in cases where this is considered reasonable and practicable ’ .” 121. While the Court is not formally bound to follow its previous judgments, in the interests of legal certainty and foreseeability it should not depart, without good reason, from its own precedents (see, among other authorities, mutatis mutandis, Chapman v. the United Kingdom [GC], no. 27238/95, § 70, ECHR 2001-I, and Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 74, ECHR 2002-VI). However, it is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory. It is a living instrument which must be interpreted in the light of present-day conditions (see, among other authorities, Tyrer v. the United Kingdom, judgment of 25 April 1978, Series A no. 26, pp. 15-16, § 31, and Christine Goodwin, cited above, § 75). 122. Furthermore, the Court would stress that although the Convention right to individual application was originally intended as an optional part of the system of protection, it has over the years become of high importance and is now a key component of the machinery for protecting the rights and freedoms set forth in the Convention. Under the system in force until 1 November 1998, the Commission only had jurisdiction to hear individual applications if the Contracting Party issued a formal declaration recognising its competence, which it could do for a fixed period. The system of protection as it now operates has, in that regard, been modified by Protocol No. 11, and the right of individual application is no longer dependent on a declaration by the Contracting States. Thus, individuals now enjoy at the international level a real right of action to assert the rights and freedoms to which they are directly entitled under the Convention. 123. In this context, the Court notes that in the light of the general principles of international law, the law of treaties and international case-law, the interpretation of the scope of interim measures cannot be dissociated from the proceedings to which they relate or the decision on the merits they seek to protect. The Court reiterates in that connection that Article 31 § 1 of the Vienna Convention on the Law of Treaties provides that treaties must be interpreted in good faith in the light of their object and purpose (see paragraph 39 above), and also in accordance with the principle of effectiveness. 124. The Court observes that the ICJ, the Inter-American Court of Human Rights, the Human Rights Committee and the Committee against Torture of the United Nations, although operating under different treaty provisions to those of the Court, have confirmed in their reasoning in recent decisions that the preservation of the asserted rights of the parties in the face of the risk of irreparable damage represents an essential objective of interim measures in international law. Indeed it can be said that, whatever the legal system in question, the proper administration of justice requires that no irreparable action be taken while proceedings are pending (see, mutatis mutandis, Soering, cited above, p. 35, § 90). It has previously stressed the importance of having remedies with suspensive effect when ruling on the obligations of the State with regard to the right to an effective remedy in deportation or extradition proceedings. The notion of an effective remedy under Article 13 of the Convention requires a remedy capable of preventing the execution of measures that are contrary to the Convention and whose effects are potentially irreversible. Consequently, it is inconsistent with Article 13 for such measures to be executed before the national authorities have examined whether they are compatible with the Convention (see Čonka v. Belgium, no. 51564/99, § 79, ECHR 2002-I). It is hard to see why this principle of the effectiveness of remedies for the protection of an individual ’ s human rights should not be an inherent Convention requirement in international proceedings before the Court, whereas it applies to proceedings in the domestic legal system. 125. Likewise, under the Convention system, interim measures, as they have consistently been applied in practice (see paragraph 104 above), play a vital role in avoiding irreversible situations that would prevent the Court from properly examining the application and, where appropriate, securing to the applicant the practical and effective benefit of the Convention rights asserted. Accordingly, in these conditions a failure by a respondent State to comply with interim measures will undermine the effectiveness of the right of individual application guaranteed by Article 34 and the State ’ s formal undertaking in Article 1 to protect the rights and freedoms set forth in the Convention. Indications of interim measures given by the Court, as in the present case, permit it not only to carry out an effective examination of the application but also to ensure that the protection afforded to the applicant by the Convention is effective; such indications also subsequently allow the Committee of Ministers to supervise execution of the final judgment. Such measures thus enable the State concerned to discharge its obligation to comply with the final judgment of the Court, which is legally binding by virtue of Article 46 of the Convention. 126. Consequently, the effects of the indication of an interim measure to a Contracting State – in this instance the respondent State – must be examined in the light of the obligations which are imposed on the Contracting States by Articles 1, 34 and 46 of the Convention. 127. The facts of the case, as set out above, clearly show that the Court was prevented by the applicants ’ extradition to Uzbekistan from conducting a proper examination of their complaints in accordance with its settled practice in similar cases and ultimately from protecting them, if need be, against potential violations of the Convention as alleged. As a result, the applicants were hindered in the effective exercise of their right of individual application guaranteed by Article 34 of the Convention, which the applicants ’ extradition rendered nugatory. 3. Conclusion 128. The Court reiterates that by virtue of Article 34 of the Convention Contracting States undertake to refrain from any act or omission that may hinder the effective exercise of an individual applicant ’ s right of application. A failure by a Contracting State to comply with interim measures is to be regarded as preventing the Court from effectively examining the applicant ’ s complaint and as hindering the effective exercise of his or her right and, accordingly, as a violation of Article 34. 129. Having regard to the material before it, the Court concludes that, by failing to comply with the interim measures indicated under Rule 39 of the Rules of Court, Turkey is in breach of its obligations under Article 34 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 130. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 131. Before the Grand Chamber, the applicants ’ representatives repeated the claims they had made before the Chamber for pecuniary damage and non-pecuniary damage in the sum of 1,000,000 French francs, that is, 304,898 euros (EUR), for each of their clients. 132. The Chamber found as follows (see paragraph 115 of the Chamber judgment): “As the applicants have not specified the nature of their alleged pecuniary damage, the Court has no alternative but to dismiss that claim. As regards the alleged non-pecuniary damage, the Court holds that its finding concerning Article 34 constitutes in itself sufficient just satisfaction for the purposes of Article 41.” 133. The Government said that they could accept the Chamber ’ s findings in the event of the Grand Chamber finding a violation of the Convention. In the alternative, they submitted that the amounts claimed were exorbitant. 134. Like the Chamber, the Court does not consider that the alleged pecuniary damage has been proved. Conversely, it finds in the circumstances of the case that the applicants undeniably suffered non-pecuniary damage as a result of Turkey ’ s breach of Article 34 which cannot be repaired solely by a finding that the respondent State has failed to comply with its obligations under Article 34. Consequently, ruling on an equitable basis in accordance with Article 41 of the Convention, the Court awards each applicant EUR 5,000 for non-pecuniary damage. B. Costs and expenses 135. The applicants ’ representatives repeated the claims they had made before the Chamber and left the question of their fees for the proceedings before the Grand Chamber to the Court ’ s discretion. 136. The Government considered that the claim for costs and expenses had not been properly proved. 137. For the proceedings up until the Chamber judgment, the Chamber awarded the applicants EUR 10,000, less EUR 905 that had been paid by the Council of Europe in legal aid. 138. The Court awards the applicants EUR 15,000 to cover all the costs incurred in the Court, less EUR 2,613.17 received from the Council of Europe in legal aid. C. Default interest 139. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | In the light of the material before it, the Court was not able to conclude that substantial grounds had existed on the date the applicants were extradited for believing that they faced a real risk of treatment proscribed by Article 3 (prohibition of inhuman or degrading treatment) of the Convention. Consequently, no violation of Article 3 of the Convention could be found. Having regard to the material before it, the Court further concluded that, by failing to comply with the interim measures indicated under Rule 39 of the Rules of Court, Turkey had been in breach of its obligations under Article 34 (effective exercise of right of individual application) of the Convention. |
560 | Anti-Roma rallies and demonstrations | II. RELEVANT DOMESTIC LAW 17. The Constitution, as in force at the material time, contained the following provisions: Article 2 “3. The activities of social organisations, government bodies or individual citizens may not be directed at the forcible acquisition or exercise of public power, or at the exclusive possession of such power. Everyone has the right and obligation to resist such activities in such ways as are permitted by law.” Article 63 “1. In the Republic of Hungary every person has the right, on the basis of the right of association, to establish organisations whose goals are not prohibited by law and to join such organisations. 2. The establishment of armed organisations with political objectives shall not be permitted on the basis of the right of association. 3. A majority of two-thirds of the votes of the Members of Parliament present is required to pass the law on the right of assembly and the financial management and operation of political parties.” 18. Act no. II of 1989 on the right to freedom of association provides as follows: Section 2 “(1) By virtue of the right of association private individuals, legal persons and their entities which have no legal personality may, subject to the aims of their activities and the intention of their founders, form and operate civil society organisations. (2) The exercise of the right of association may not violate Article 2 § 3 of the Constitution, nor may it constitute a criminal offence or incitement to a criminal offence, and may not prejudice the rights and liberties of others.” Section 3 “(1) A civil society organisation is a voluntarily established self-governing organisation formed for a purpose stated in its articles of association, which has registered members and organises its members ’ activities in order to further its purpose. (2) Unregistered members may also participate in large-scale public events .” Section 4 “(1) ... A civil society organisation comes into existence by means of registration with the courts .” Section 5 “A community of private individuals formed by virtue of the right of association, whose operation is not regular or which has no registered members or structure specified under this Act, shall not constitute a civil society organisation .” Section 16 “(2) Upon an action brought by the public prosecutor, the court: ... ( d) shall dissolve the civil society organisation if its operation violates section 2(2) hereof; ...” The legal status of associations can be briefly characterised as follows. Associations whose activities do not serve a public interest cannot be supported by individuals by means of income-tax -deductible donations and are not entitled to receive other donations or to apply for public subsidies, as these privileges are reserved for public-benefit organisations under the provisions of Acts nos. CXXVI of 1996 and CLXXV of 2011. However, Act no. LXXXI of 1996 provides that income deriving from the non-profit activities of any association is exempt from corporate tax and that the associations ’ business activities are subject to preferential corporate taxation. In addition, under Act no. CXVII of 1995, advantageous income ‑ tax rules apply to certain services provided by associations and certain remunerations and social welfare benefits received from them. Furthermore, Act no. IV of 1959 ( on the Civil Code) provides that the members of an association are not liable for the association ’ s debts. 19. Act no. LXXVII of 1993 on the rights of national and ethnic minorities, as in force at the material time, provided as follows: Section 4 “(1) The Republic of Hungary prohibits all policies or conducts which: ( a) are aimed at or result in a minority ’ s assimilation into, or exclusion or segregation from, the majority nation; ( b) aim to change the national or ethnic composition of areas populated by minorities ...; ( c) persecute, impair the lives of or hamper the exercise of the rights of a minority or persons belonging to a minority on account of their belonging to a minority; ...” 20. Law-Decree no. 8 of 1976, promulgating the International Covenant on Civil and Political Rights adopted by the General Assembly of the United Nations at its 21st session on 16 December 1966, provides as follows: Article 20 “2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” 21. Law-Decree no. 8 of 1969, promulgating the International Convention on the Elimination of All Forms of Racial Discrimination adopted in New York on 21 December 1965, provides as follows: Article 1 “1. In this Convention, the term ‘ racial discrimination ’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. ... ” Article 2 “1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end: ... (d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization; ...” Article 4 “States Parties condemn all propaganda and all organizations which ... attempt to justify or promote racial hatred and discrimination in any form, and undertake to ... ( a) ... declare an offence punishable by law all ... incitement to racial discrimination ... and also the provision of any assistance to racist activities, including the financing thereof; ( b) ... declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law; ...” 22. Decision no. 30/1992 (V.26) AB of the Constitutional Court contains the following passages: “II. 3. The criminal codes of all democratic European countries with continental legal systems, as well as those of England and Wales, Canada and New Zealand. which have the Anglo-Saxon legal system, prohibit incitement on a ‘ racial ’ basis. The demarcation of the boundary between incitement, arousal of hatred and expression of opinion remains hotly contested even internationally. ... IV. COMPARATIVE LAW 29. The German Federal Constitutional Court held, in its Stoppt den Synagogenbau! judgment of 23 June 2004 ( BVerfGE, 111, 147 – Inhaltsbezogenes Versammlungsverbot ), that to avert danger to public order it was possible to restrict freedom of assembly if it was the Art und Weise, that is, the manner or means by which an assembly was conducted, and not the content, which gave rise to concerns. Accordingly, it was permissible to restrict “aggressive and provocative conduct by participants which intimidates citizens and through which demonstrators create a climate of violent demonstration and potential readiness for violence”. With regard to an extreme right-wing march staged on Holocaust Memorial Day, it held in addition that “the manner or means [ by which an assembly is conducted] [may] give rise to provocation which significantly encroaches upon moral sensitivities [ sittliches Empfinden ] ”. Regarding the way in which the assembly was conducted, the Federal Constitutional Court also attached importance to the provocative behaviour of the protestors. It added that the same applied “when a procession, on account of its overall character [ durch sein Gesamtgepräge ] identifies with the rites and symbols of the Nazi tyranny and intimidates other citizens by evoking the horrors of the past totalitarian and inhumane regime”. 30. In the context of the dissolution of an association the German Federal Administrative Court, in judgment BVerwG 6 A 3.08 of 5 August 2009, summarised its case-law on the banning of associations as follows: “ 16. Whether or not the purpose and activity of an association are punishable under criminal law will depend on the intentions and conduct of its members. An association as such cannot be criminally liable. Only natural persons are punishable under criminal law because criminality implies a capacity for criminal responsibility [ Schuldzurechnungsfähigkeit ], which only natural persons possess. As is clear from section 3(5) of the Association Act [ VereinsG ], it is nevertheless legally possible for an association to be criminally liable [ Strafgesetzwidrigkeit einer Vereinigung ] because the association can form, through its members and through its representing organs, a collective will which is detached from the individual members and which develops its own purpose [ Zweckrichtung ] and can act independently. If the criminal law is breached as a result of this own purpose or of the independent actions of an association, all the conditions for applying the prohibition [ Verbotstatbestand ] are fulfilled. A decisive factor in this context is that the members ’ conduct can be attributed to the association. The character of the association must be shaped [ prägen ] by the criminal offences [ Strafgesetzwidrigkeit ] committed by its members. An association can strive concurrently for different aims; besides the legal aim laid down in its rules, it can also pursue criminal aims which it achieves through the conduct of its members. ... 17. The prohibition of an association based on section 3(1), first sentence, first alternative, of the Associations Act read in conjunction with the first alternative of Article 9 § 2 of the Basic Law, is de iure independent of the criminal conviction of a member or an official of the association. It is within the competency of the authority issuing the prohibition order and the administrative court to examine whether there has been a breach of criminal law [ Gesetzeswidrigkeit ]. However, it is not the purpose of the prohibition [ Verbotstatbestand ] to impose an additional sanction on individuals who have already violated criminal provisions. Rather, the purpose [of the provision] is to deal with a particular threat to public safety and public order expressed in the founding or continuing existence of an organisation which is planning or committing criminal acts. Such organisations constitute a particular threat to interests [ Rechtsgüter ] protected by the criminal law. The organisation ’ s inherent momentum and its organised human and material resources facilitate and promote punishable acts. At the same time, the sense of responsibility of each member is often reduced, individual resistance to committing a criminal act is lessened, and the impetus to commit further criminal acts is created ( judgment of 18 October 1988, op. cit., p. 307 and pp. 23-24 respectively; Löwer, in: v. Münch / Kunig, GG, Vol. 1, 5th ed. 2000, note 39 ad Article 9). ” The German Federal Administrative Court has repeatedly upheld dissolution orders in respect of associations which supported (neo-)Nazi ideas. In its Heimattreue Deutsche Jugend judgment of 1 September 2010 ( BVerwG 6 A 4.09), in which members of the association were propagating Nazi racial treatises and ideas, the Federal Administrative Court reiterated its relevant case-law, stating that in order to satisfy the conditions of the ban the association must have intended to realise its anti-constitutional aims in a militant or aggressive way, a condition which did not require the use of force or a specific violation of the law. It was sufficient, for the finding of an unconstitutional aim that justified the ban, for the programme, imagery and style to indicate an essential relationship with Nazism. The fact that an association aligned itself with the Nazi party (prohibited in Germany) or propagated a racial theory which was not in conformity with the constitutional prohibition of discrimination was sufficient to meet the conditions for banning the association. If an association attempted to hide its unconstitutional intentions, the conditions for the ban would become clear simply from the general picture formed by the individual statements and conduct. The fact that these elements might appear to be subordinate to a varying number of innocuous circumstances said nothing in itself about their significance. 31. The Supreme Court of the United States considered the problem of intimidation in Virginia v. Black, 538 US 343 (2003). A Virginia statute makes it a felony “for any person ..., with the intent of intimidating any person or group ..., to burn a cross on the property of another, a highway or other public place,” and specifies that “[a] ny such burning ... shall be prima facie evidence of an intent to intimidate a person or group.” The Supreme Court held that burning a cross in the United States was inextricably intertwined with the history of the Ku Klux Klan. The Klan had often used cross burnings as a tool of intimidation and a threat of impending violence. To this day, regardless of whether the message was a political one or was also meant to intimidate, the burning of a cross was a “symbol of hate.” While cross burning did not inevitably convey a message of intimidation, often the cross burner intended that the recipients of the message should fear for their lives. The First Amendment of the Constitution of the United States permitted a State to ban “true threats ”, which encompassed those statements where the speaker meant to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protected individuals from the fear of violence and the disruption that fear engendered, as well as from the possibility that the threatened violence would occur. Intimidation in the constitutionally proscribable sense of the word was a type of true threat, where a speaker directed a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. The First Amendment permitted Virginia to outlaw cross burnings done with the intent to intimidate, because burning a cross was a particularly virulent form of intimidation. THE LAW ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 32. The applicant complained that the dissolution of the Association which he chaired amounted to a violation of his right to freedom of association as guaranteed by Article 11 of the Convention, which reads as follows: “ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” The Government contested that argument. A. Admissibility 33. In the Government ’ s view, the application should be declared inadmissible as being incompatible ratione materiae with the provisions of the Convention in the light of Article 17, because the Association provided an institutional framework for expressing racial hatred against Jewish and Roma citizens. They drew attention to the fact that international human rights monitoring bodies (such as the Advisory Committee of the Framework Convention for the Protection of National Minorities and the European Commission against Racism and Intolerance (ECRI), see paragraphs 2 6 - 28 above) had also raised concerns about the threatening effect of the uniform, insignia and flags used in the Movement ’ s demonstrations. 34. The Government referred to the case-law of the Convention institutions, including the Court ’ s decision in Garaudy v. France ( ( dec. ), no. 65831/01, ECHR 2003-IX). They pointed out that, where the right to freedom of expression had been relied on by applicants to justify the publication of texts that infringed the very spirit of the Convention and the essential values of democracy, the European Commission of Human Rights had had recourse to Article 17 of the Convention, either directly or indirectly, in rejecting their arguments and declaring their applications inadmissible (examples included Glimmerveen and Hagenbeek v. the Netherlands, nos. 8348/78 and 8406/78, Commission decision of 11 October 1979, Decisions and Reports (DR) 18, p. 187, and Marais v. France, no. 31159/96, Commission decision of 24 June 1996, DR 86 -B, p. 184). In the Government ’ s view, the Court had subsequently confirmed that approach ( they referred to Lehideux and Isorni v. France, 23 September 1998, §§ 47 and 53, Reports of Judgments and Decisions 1998 - VII). Moreover, they pointed out that, in a case concerning Article 11 ( W.P. and Others v. Poland ( dec. ), no. 42264/98, ECHR 2004 - VII), the Court had observed that “the general purpose of Article 17 is to prevent totalitarian groups from exploiting in their own interests the principles enunciated by the Convention”. Similar conclusions had been reached in the cases of Norwood v. the United Kingdom ( ( dec. ), no. 23131/03, ECHR 2004 - XI), and Witzsch v. Germany ( ( dec. ), no. 7485/03, 13 December 2005 ); the Government referred by contrast to Vajnai v. Hungary ( no. 33629/06, § 25, ECHR 2008 ). 35. The applicant argued in reply that the activities of the Association did not constitute abuse of the right to freedom of expression and association, their objective having been the restoration of the rule of law by protecting citizens from criminals. The Association had not been involved in any activity aimed at the destruction of any of the rights and freedoms set forth in the Convention. 36. The Court observes at the outset that, unlike the cases cited by the Government involving the right to freedom of expression, the present application concerns the applicant ’ s right to freedom of association, and indeed a quite serious restriction on it, resulting in the termination of the Association ’ s legal existence as such. Therefore, the present application is to be distinguished from those relied on by the Government. In respect of the latter the Court observes that, particularly in Garaudy and in Lehideux and Isorni ( both cited above), the justification of Nazi-like politics was at stake. Consequently, the finding of an abuse under Article 17 lay in the fact that Article 10 had been relied on by groups with totalitarian motives. 37. In the instant case, however, it has not been argued by the Government that the applicant expressed contempt for the victims of a totalitarian regime (contrast Witzsch, cited above) or that he belonged to a group with totalitarian ambitions. Nor does the information contained in the case file support such a conclusion. The applicant was, at the material time, the chairman of a registered association. He complains about the dissolution of that association together with that of a movement which, in the domestic courts ’ view, constituted an entity within that association, essentially on account of a demonstration which had not been declared unlawful at the domestic level and did not lead to any act of violence. In these circumstances, the Court cannot conclude that the Association ’ s activities were intended to justify or propagate an ideology of oppression serving “totalitarian groups”. 38. Those activities, whose compatibility with Article 11 of the Convention will be the subject matter of a review on the merits (compare and contrast Féret v. Belgium, no. 15615/07, § 52, 16 July 2009), do not reveal prima facie any act aimed at the destruction of any of the rights and freedoms set forth in the Convention (see Sidiropoulos and Others v. Greece, 10 July 1998, § 29, Reports 1998 ‑ IV) or any prima facie intention on the applicant ’ s part to publicly defend or disseminate propaganda in support of totalitarian views (see Vajnai, cited above, §§ 24 ‑ 26). Only when the above-mentioned review is complete will the Court be in a position to decide, in the light of all the circumstances of the case, whether Article 17 of the Convention should be applied (see Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 96, ECHR 2003 ‑ II). 39. It follows that, for the Court, the application does not constitute an abuse of the right of petition for the purposes of Article 17 of the Convention. Therefore, it is not incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3. The Court further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions ( a ) The Government 40. The Government maintained that the Movement had not had a distinct legal status but had been a unit of the Association created, organised and financed by the latter. Its members had acted in the interests and under the guidance of the Association and paid their membership fees to it. The fact that the Association ’ s charter did not clarify its internal structure could not lead to the conclusion that the Movement had not been de jure part of the Association. However, even assuming that the Movement had been a distinct entity de jure, its de facto links to the Association justified the finding that the Association had overstepped its freedom of expression on account of the Movement ’ s operation. Therefore, the Association chaired by the applicant had not been dissolved because of the acts of a distinct entity but because of its own activities. 41. Moreover, the Government were of the opinion that there had been no interference with the applicant ’ s freedom of association, since that freedom did not cover the right to associate in order to disseminate racist propaganda. However, even if there had been interference, it had been prescribed by law and served the legitimate aims of protecting public safety, the prevention of disorder or crime and the protection of the rights and freedoms of others. 42. Furthermore, the interference had been necessary in a democratic society, given the racist and anti-Semitic content of the demonstrations staged by the Movement and its paramilitary rituals, which were intimidating and traumatising, promoted segregation, increased social tension and provoked violence. As to proportionality, dissolution was an appropriate sanction for the propagation of racial discrimination and segregation. It was not even the most severe sanction available, since criminal sanctions could be invoked as well as an ultima ratio against the individuals involved who were responsible for the most serious expressions of racial hatred, inciting others to violence. ( b ) The applicant 43. At the outset the applicant stressed that, contrary to the findings of the domestic courts, the impugned actions of the Movement could not be imputed to the dissolved Association. He disputed that the Movement had constituted an integral part of the Association, since the two entities had functioned separately and independently, albeit in cooperation. He also emphasised that none of the Association ’ s members had participated in the Movement. 44. The applicant contested the Government ’ s argument that the dissolution of the Association had pursued a legitimate aim in the interests of national security or public safety, that is, for the prevention of disorder and crime and the protection of the rights and freedoms of others within the meaning of Article 11 § 2 of the Convention. In his view, the courts had failed to establish any instances of actual disorder or any violation of the rights of others. He stressed that the domestic decisions had referred to a merely hypothetical danger whose prevention could not be seen as a legitimate aim under the Convention. 45. Furthermore, the applicant alleged that, even assuming that the interference with the rights enshrined under Article 11 of the Convention had been lawful, the dissolution of the association had been neither necessary nor proportionate to the aims pursued. He noted that any interference by the public authorities with the exercise of the right of freedom of association had to be in proportion to the seriousness of the impugned conduct; thus, the sanction pronounced by the domestic courts had been excessively severe. Under the Court ’ s case-law, dissolution was reserved for situations in which the activities of an association seriously endangered the very essence of the democratic system; neither the Association ’ s nor the Movement ’ s activities had sought or had such an effect. In any event, the relevant domestic law did not provide for any sanction other than dissolution in respect of the allegedly unlawful activities of an association, a fact which in itself excluded all proportionality. 46. The applicant also pointed out that the exceptions set out in Article 11 § 2 were to be construed narrowly : only convincing and compelling reasons could justify restrictions on freedom of association. However, in the present case, the domestic courts had not adduced sufficient and relevant reasons for the restriction, since they had failed to demonstrate how the activities of the Association were capable of provoking conflicts or either supporting or promoting violence and the destruction of democracy. Indeed, the Association ’ s activities had merely been aimed at enabling the discussion of unresolved social problems such as the security of vulnerable people and the extraordinarily high crime rate. 47. The applicant further drew attention to the Court ’ s case-law considering Article 11 in the light of Article 10. In that context he conceded that the ideas expressed by the Movement might be offensive or shocking. Nevertheless, they did not amount to incitement to hatred or intolerance, and were thus compatible with the principles of pluralism and tolerance within a democratic society. ( c ) The third party 48. The European Roma Rights Centre submitted that the freedoms guaranteed under Article 11 of the Convention could be restricted in order to protect the rights and freedoms of minority communities. Making reference, inter alia, to the relevant provisions of the International Convention on the Elimination of All Forms of Racial Discrimination, it argued that organisations which attempted to justify or promote racial hatred and discrimination in any form did not come within the scope of the protection provided by Article 11. The third party further drew attention to the fact that minorities, and in particular the Roma, enjoyed special protection under Article 14 of the Convention, and referred to the emerging international consensus amongst Contracting States of the Council of Europe towards recognising an obligation to protect their security. 2. The Court ’ s assessment ( a ) Whether there was interference 49. The Court notes that the Association chaired by the applicant was dissolved and that the effects of that measure extended to the Movement (see paragraph 15 above). It therefore considers that there was interference with the applicant ’ s rights guaranteed under Article 11 of the Convention. ( b ) Whether the interference was justified 50. Such interference will constitute a violation of Article 11 unless it was prescribed by law, pursued one or more legitimate aims for the purposes of Article 11 § 2 and was necessary in a democratic society to achieve those aims. ( i ) “Prescribed by law” 51. The Court observes that the Association, and consequently the Movement, was dissolved under section 16(2) ( d) of Act no. II of 1989 on the right to freedom of association (see paragraph 18 above), including the reference therein to section 2(2) (“prejudice the rights and liberties of others”). It further takes note of the parties ’ diverging arguments as to whether the domestic court decisions lawfully included the dissolution of the Movement in ordering the Association ’ s disbandment. In this connection the Court notes that, in reply to the prosecution authorities ’ factual observations (see in detail in paragraph 11 above), the Budapest Court of Appeal and the Supreme Court held (see paragraphs 15 ‑ 16 above) that the Movement had to be regarded, as a matter of interpretation of the domestic law on associations, as an entity operating within the Association rather than independently. Those courts observed that the principal activity of the Association was the founding, operation, guidance and financing of the Movement. The Court finds no particular element in the case file or the parties ’ submissions which would render this application of the law arbitrary, the national authorities being better positioned to provide an interpretation of the national law and to assess evidence. In view of the fact that the creation of the Movement was a project of the Association, that the Movement and the Association shared a bank account, that candidates for membership of the Movement were assessed by the Association and that the former ’ s uniform could be bought from the latter, the Court does not find the position of those courts unreasonable. Consequently, the Court is satisfied that the dissolution of the Association on account of the actions of the Movement was “prescribed by law”, given the domestic courts ’ findings as to their relationship. ( ii ) Legitimate aim 52. The Court considers that the impugned measure can be seen as pursuing the aims of public safety, the prevention of disorder and the protection of the rights of others, all of which are legitimate for the purposes of Article 11 § 2 of the Convention, notwithstanding the applicant ’ s allegation that the domestic courts had not demonstrated the existence of any actual instances of disorder or violation of the rights of others (see paragraph 44 above). It remains to be ascertained whether the impugned measure was necessary in a democratic society. ( iii ) Necessary in a democratic society ( α ) General principles 53. The general principles articulated in the Court ’ s case-law in this sphere are summarised in the case of United Communist Party of Turkey and Others v. Turkey (30 January 1998, Reports 1998 - I) as follows. “42. The Court reiterates that notwithstanding its autonomous role and particular sphere of application, Article 11 must also be considered in the light of Article 10. The protection of opinions and the freedom to express them is one of the objectives of the freedoms of assembly and association as enshrined in Article 11 (see, among other authorities, the Young, James and Webster v. the United Kingdom judgment of 13 August 1981, Series A no. 44, p. 23, § 57, and the Vogt v. Germany judgment of 26 September 1995, Series A no. 323, p. 30, § 64). 43. That applies all the more in relation to political parties in view of their essential role in ensuring pluralism and the proper functioning of democracy ... As the Court has said many times, there can be no democracy without pluralism. It is for that reason that freedom of expression as enshrined in Article 10 is applicable, subject to paragraph 2, not only to ‘ information ’ or ‘ ideas ’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb (see, among many other authorities, the Vogt judgment cited above, p. 25, § 52). The fact that their activities form part of a collective exercise of freedom of expression in itself entitles political parties to seek the protection of Articles 10 and 11 of the Convention. ... 45. Democracy is without doubt a fundamental feature of the European public order (see the Loizidou judgment cited above, p. 27, § 75). ... In addition, Articles 8, 9, 10 and 11 of the Convention require that interference with the exercise of the rights they enshrine must be assessed by the yardstick of what is ‘ necessary in a democratic society ’. The only type of necessity capable of justifying an interference with any of those rights is, therefore, one which may claim to spring from ‘ democratic society ’. Democracy thus appears to be the only political model contemplated by the Convention and, accordingly, the only one compatible with it. ... 46. Consequently, the exceptions set out in Article 11 are, where political parties are concerned, to be construed strictly; only convincing and compelling reasons can justify restrictions on such parties ’ freedom of association. In determining whether a necessity within the meaning of Article 11 § 2 exists, the Contracting States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision embracing both the law and the decisions applying it, including those given by independent courts. The Court has already held that such scrutiny was necessary in a case concerning a Member of Parliament who had been convicted of proffering insults (see the Castells judgment cited above, pp. 22–23, § 42); such scrutiny is all the more necessary where an entire political party is dissolved and its leaders banned from carrying on any similar activity in the future. 47. When the Court carries out its scrutiny, its task is not to substitute its own view for that of the relevant national authorities but rather to review under Article 11 the decisions they delivered in the exercise of their discretion. This does not mean that it has to confine itself to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine whether it was ‘ proportionate to the legitimate aim pursued ’ and whether the reasons adduced by the national authorities to justify it are ‘ relevant and sufficient ’. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see, mutatis mutandis, the Jersild v. Denmark judgment of 23 September 1994, Series A no. 298, p. 26, § 31).” 54. Further relevant principles are contained in the judgment in Refah Partisi (the Welfare Party) and Others (cited above), as follows: “( γ ) The possibility of imposing restrictions, and rigorous European supervision 9 6. The freedoms guaranteed by Article 11, and by Articles 9 and 10 of the Convention, cannot deprive the authorities of a State in which an association, through its activities, jeopardises that State ’ s institutions, of the right to protect those institutions. In this connection, the Court points out that it has previously held that some compromise between the requirements of defending democratic society and individual rights is inherent in the Convention system. For there to be a compromise of that sort any intervention by the authorities must be in accordance with paragraph 2 of Article 11 – a matter which the Court considers below. ... ... 98. ... [A] political party may promote a change in the law or the legal and constitutional structures of the State on two conditions: firstly, the means used to that end must be legal and democratic; secondly, the change proposed must itself be compatible with fundamental democratic principles. It necessarily follows that a political party whose leaders incite to violence or put forward a policy which fails to respect democracy or which is aimed at the destruction of democracy and the flouting of the rights and freedoms recognised in a democracy cannot lay claim to the Convention ’ s protection against penalties imposed on those grounds (see Yazar and Others v. Turkey, nos. 22723/93, 22724/93 and 22725/93, § 49, ECHR 2002-II, and, mutatis mutandis, the following judgments: Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, § 97, ECHR 2001-IX, and Socialist Party and Others v. Turkey, judgment of 25 May 1998, Reports 1998-III, pp. 1256-57, §§ 46-47). 99. The possibility cannot be excluded that a political party, in pleading the rights enshrined in Article 11 and also in Articles 9 and 10 of the Convention, might attempt to derive therefrom the right to conduct what amounts in practice to activities intended to destroy the rights or freedoms set forth in the Convention and thus bring about the destruction of democracy (see Communist Party (KPD) v. Germany, no. 250/57, Commission decision of 20 July 1957, Yearbook 1, p. 222). In view of the very clear link between the Convention and democracy ..., no one must be authorised to rely on the Convention ’ s provisions in order to weaken or destroy the ideals and values of a democratic society. Pluralism and democracy are based on a compromise that requires various concessions by individuals or groups of individuals, who must sometimes agree to limit some of the freedoms they enjoy in order to guarantee greater stability of the country as a whole (see, mutatis mutandis, Petersen v. Germany ( dec. ), no. 39793/98, ECHR 2001-XII). In that context, the Court considers that it is not at all improbable that totalitarian movements, organised in the form of political parties, might do away with democracy, after prospering under the democratic regime, there being examples of this in modern European history. ... ( δ ) Imputability to a political party of the acts and speeches of its members 101. The Court further considers that the constitution and programme of a political party cannot be taken into account as the sole criterion for determining its objectives and intentions. The political experience of the Contracting States has shown that in the past political parties with aims contrary to the fundamental principles of democracy have not revealed such aims in their official publications until after taking power. That is why the Court has always pointed out that a party ’ s political programme may conceal objectives and intentions different from the ones it proclaims. To verify that it does not, the content of the programme must be compared with the actions of the party ’ s leaders and the positions they defend. Taken together, these acts and stances may be relevant in proceedings for the dissolution of a political party, provided that as a whole they disclose its aims and intentions ... ( ε ) The appropriate timing for dissolution 102. In addition, the Court considers that a State cannot be required to wait, before intervening, until a political party has seized power and begun to take concrete steps to implement a policy incompatible with the standards of the Convention and democracy, even though the danger of that policy for democracy is sufficiently established and imminent. The Court accepts that where the presence of such a danger has been established by the national courts, after detailed scrutiny subjected to rigorous European supervision, a State may ‘ reasonably forestall the execution of such a policy, which is incompatible with the Convention ’ s provisions, before an attempt is made to implement it through concrete steps that might prejudice civil peace and the country ’ s democratic regime ’ (see the Chamber ’ s judgment, § 81). 103. The Court takes the view that such a power of preventive intervention on the State ’ s part is also consistent with Contracting Parties ’ positive obligations under Article 1 of the Convention to secure the rights and freedoms of persons within their jurisdiction. Those obligations relate not only to any interference that may result from acts or omissions imputable to agents of the State or occurring in public establishments but also to interference imputable to private individuals within non ‑ State entities ... A Contracting State may be justified under its positive obligations in imposing on political parties, which are bodies whose raison d ’ être is to accede to power and direct the work of a considerable portion of the State apparatus, the duty to respect and safeguard the rights and freedoms guaranteed by the Convention and the obligation not to put forward a political programme in contradiction with the fundamental principles of democracy. ( ζ ) Overall examination 104. In the light of the above considerations, the Court ’ s overall examination of the question whether the dissolution of a political party on account of a risk of democratic principles being undermined met a ‘ pressing social need ’ (see, for example, Socialist Party and Others, cited above, p. 1258, § 49) must concentrate on the following points: ( i ) whether there was plausible evidence that the risk to democracy, supposing it had been proved to exist, was sufficiently imminent; (ii) whether the acts and speeches of the leaders and members of the political party concerned were imputable to the party as a whole; and (iii) whether the acts and speeches imputable to the political party formed a whole which gave a clear picture of a model of society conceived and advocated by the party which was incompatible with the concept of a ‘ democratic society ’. 105. The overall examination of the above points that the Court must conduct also has to take account of the historical context in which the dissolution ... took place ... in the country concerned to ensure the proper functioning of ‘ democratic society ’ (see, mutatis mutandis, Petersen, cited above).” 55. The Court ’ s judgment in Herri Batasuna and Batasuna v. Spain (nos. 25803/04 and 25817/04, ECHR 2009) contains further relevant passages: “79. ... It necessarily follows that a political party whose leaders incite to violence or put forward a policy which fails to respect democracy or which is aimed at the destruction of democracy and the flouting of the rights and freedoms recognised in a democracy cannot lay claim to the Convention ’ s protection against penalties imposed on those grounds ... ... 81. ... [A] State may ‘ reasonably forestall the execution of such a policy, which is incompatible with the Convention ’ s provisions, before an attempt is made to implement it through concrete steps that might prejudice civil peace and the country ’ s democratic regime ’ (see Refah Partisi (the Welfare Party) and Others, cited above, § 102). ... 83. ... [The] Court ’ s overall examination of the question whether the dissolution of a political party on account of a risk of democratic principles being undermined met a ‘ pressing social need ’ (see, for example, Socialist Party and Others, cited above, § 49) must concentrate on the following points: ( i ) whether there was plausible evidence that the risk to democracy, supposing it had been proved to exist, was sufficiently and reasonably imminent, and (ii) whether the acts and speeches imputable to the political party formed a whole which gave a clear picture of a model of society conceived and advocated by the party which was incompatible with the concept of a ‘ democratic society ’ ...” ( β ) Application of those principles to the present case 56. The Court points out at the outset that, although the right to create and operate political parties falls within the protection of Article 11 of the Convention, as does the right to create and operate social organisations, these two types of entity differ from each other as regards, amongst other elements, the role which they play in the functioning of a democratic society, since many social organisations contribute to that functioning only in an indirect manner. In several member States of the Council of Europe, political parties enjoy a special legal status which facilitates their participation in politics in general and in elections in particular; they also have specific legally endorsed functions in the electoral process and in the formation of public policies and public opinion. Social organisations do not normally enjoy such legal privileges and have, in principle, fewer opportunities to influence political decision ‑ making. Many of them do not participate in public political life, although there is no strict separation between the various forms of associations in this respect, and their actual political relevance can be determined only on a case-by-case basis. Social movements may play an important role in the shaping of politics and policies, but compared with political parties such organisations usually have fewer legally privileged opportunities to influence the political system. However, given the actual political impact which social organisations and movements have, when any danger to democracy is being assessed, regard must be had to their influence. 57. In the Court ’ s view, the State is also entitled to take preventive measures to protect democracy vis-à-vis such non-party entities if a sufficiently imminent prejudice to the rights of others threatens to undermine the fundamental values on the basis of which a democratic society exists and functions. One such value is the coexistence of members of society free from racial segregation, without which a democratic society is inconceivable. The State cannot be required to wait, before intervening, until a political movement takes action to undermine democracy or has recourse to violence. Even if that movement has not made an attempt to seize power and the risk of its policy to democracy is not imminent, the State is entitled to act preventively if it is established that such a movement has started to take concrete steps in public life to implement a policy incompatible with the standards of the Convention and democracy (see Refah Partisi (the Welfare Party) and Others, cited above, § 102). 58. In assessing the necessity and proportionality of the measure complained of, the Court notes that the instant case concerns the dissolution of an association and a movement rather than that of a political party. The responsibilities originating in the particular constitutional role and legal privileges that apply to political parties in many member States of the Council of Europe may apply in the case of social organisations only to the extent that the latter do actually have a comparable degree of political influence. On the other hand, the Court is aware that the termination of the legal existence of the Association and the Movement was a sanction of considerable gravity, because it equated to stripping these groups of the legal, financial and practical advantages normally secured to registered associations in most jurisdictions (see paragraph 18 above). Therefore, any such measure must be supported by relevant and sufficient reasons, just as in the case of dissolution of a political party, although in the case of an association, given its more limited opportunities to exercise national influence, the justification for preventive restrictive measures may legitimately be less compelling than in the case of a political party. In view of the difference in the importance for a democracy between a political party and a non-political association, only the former deserves the most rigorous scrutiny of the necessity of a restriction on the right to associate (compare, per analogiam, the level of protection granted to political speech and to speech which does not concern matters of public interest, in Lingens v. Austria, 8 July 1986, § 42, Series A no. 103, and Tammer v. Estonia, no. 41205/98, § 62, ECHR 2001 ‑ I ). This distinction has to be applied with sufficient flexibility. As regards associations with political aims and influence, the level of scrutiny will depend on the actual nature and functions of the association in view of the circumstances of the case. 59. The Court observes that the Movement about whose dissolution the applicant complains was created by the Association with the stated purpose of “defending a physically, spiritually and intellectually defenceless Hungary ” (see paragraph 8 above). The Movement ’ s subsequent activities involved rallies and demonstrations, the members sporting uniforms and parading in military-like formations. These events were held in various parts of the country, and in particular in villages with large Roma populations such as Tatárszentgyörgy; calls were also made for the defence of “ethnic Hungarians” against so-called “Gypsy criminality” (see paragraph 10 above). In reaction to this sequence of events, the public prosecutor brought an action against the Movement and the Association, the essence of which was that the defendants ’ activities amounted to racist intimidation of citizens of Roma origin (see paragraph 11 above). 60. In the ensuing judicial proceedings the courts assessed the links between the two defendants and found convincing evidence that they did not constitute separate entities. In view of the arguments considered in this context, the Court cannot find this conclusion unreasonable or arbitrary (see paragraphs 11, 13, 15, 16 and 51 above). 61. The case resulted in the dissolution of both the Association and the Movement. In essence, the domestic courts found that even though no actual violence had occurred as a result of the defendants ’ activities, they were liable for having created an anti-Roma atmosphere through verbal and visual demonstrations of power. This amounted to a breach of the relevant law on associations, ran counter to human dignity and prejudiced the rights of others, that is, of Roma citizens. In the latter connection the courts observed that the central theme of the Tatárszentgyörgy rally was “Gypsy criminality”, a racist concept. The courts paid particular attention to the fact that the impugned rallies involved military- style uniforms, commands, salutes and formations as well as armbands reminiscent of Arrow Cross symbols. On appeal, this reasoning was extended to include considerations to the effect that the populations of the villages targeted by the Movement were a “captive audience”, because those citizens had not been in a position to avoid the extreme and exclusionary views conveyed by the Movement ’ s actions. In the courts ’ view, the latter amounted to creating a public menace by generating social tension and bringing about an atmosphere of impending violence (see paragraphs 15 and 16 above). 62. The Court reiterates that it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law (see, among many other authorities, Lehideux and Isorni, cited above, § 50 ). The Court ’ s task is merely to review the decisions delivered by the authorities within their margin of appreciation. In so doing, it must satisfy itself that they based their decisions on an acceptable assessment of the relevant facts (see Incal v. Turkey, 9 June 1998, § 48, Reports 1998 ‑ IV). In the circumstances of the present case, the Court cannot find the conclusions of the Hungarian courts unreasonable or arbitrary and it shares the view of those courts that the activities of and the ideas expressed by the Movement relied on a race-based comparison between the Roma minority and the ethnic Hungarian majority (see paragraph 13 above). 63. The Court has previously held, in the context of Article 10, that ideas or conduct cannot be excluded from the protection provided by the Convention merely because they are capable of creating a feeling of unease in groups of citizens or because some may perceive them as disrespectful (see Vajnai, cited above, § 57). It is of the view that similar considerations must apply to freedom of association in so far as it concerns the association of individuals in order to further ideas which are less than widely accepted, or even shocking or disturbing. Indeed, unless the association in question can reasonably be regarded as a breeding ground for violence or as incarnating a negation of democratic principles, radical measures restricting such fundamental rights as that of freedom of association – in the name of protecting democracy – are difficult to reconcile with the spirit of the Convention, which is aimed at guaranteeing the articulation of political views ( even those which are difficult to accept for the authorities or a larger group of citizens and contest the established order of society ) through all peaceful and lawful means, including association and assemblies (see, mutatis mutandis, Güneri and Others v. Turkey, nos. 42853/98, 43609/98 and 44291/98, § 76, 12 July 2005). 64. That being so, it has to be ascertained whether in this particular case the actions of the Association and the Movement remained within the limits of legal and peaceful activities. In this connection the Court cannot overlook the fact that their activists staged several rallies, such as the event in Tatárszentgyörgy which involved some 200 persons in a village of approximately 1,800 inhabitants. It is true that no actual violence occurred, although it is not possible to determine with hindsight whether or not this was because of the presence of the police. The activists were marching in the village wearing military- style uniforms and threatening armbands, in a military-like formation, giving salutes and issuing commands of the same kind. 65. In the Court ’ s view, such a rally was capable of conveying the message to those present that its organisers had the intention and the capacity to have recourse to a paramilitary organisation to achieve their aims, whatever they might be. The paramilitary formation was reminiscent of the Hungarian Nazi (Arrow Cross) movement, which was the backbone of the regime that was responsible, amongst other things, for the mass extermination of Roma in Hungary. Having regard to the fact that there were established organisational links between the Movement whose activists were present and the Association, the Court also finds that the intimidating effect of the rallies in Tatárszentgyörgy and elsewhere must have gained momentum – and indeed, have been multiplied – by virtue of the fact that the rallies were backed by a registered association benefiting from legal recognition. 66. The Court considers that the demonstration by political protagonists of their ability and willingness to organise a paramilitary force goes beyond the use of peaceful and lawful means of articulating political views. In the light of historical experience – such as that of Hungary in the wake of the era of Arrow Cross power – the reliance of an association on paramilitary demonstrations which express racial division and implicitly call for race ‑ based action must have an intimidating effect on members of a racial minority, especially when they are in their homes and as such constitute a captive audience. In the Court ’ s view, this exceeds the limits of the scope of protection secured by the Convention in relation to expression (see Vajnai, cited above ) or assemblies and amounts to intimidation, which is – in the words of the United States Supreme Court ’ s judgment in Virginia v. Black (see paragraph 31 above) – a “ true threat ”. The State is therefore entitled to protect the right of the members of the target groups to live without intimidation. This is particularly true because they were singled out on a racial basis and were intimidated on account of their belonging to an ethnic group. In the Court ’ s view, a paramilitary march goes beyond the mere expression of a disturbing or offensive idea, since the message is accompanied by the physical presence of a threatening group of organised activists. Where the expression of ideas is accompanied by a form of conduct, the Court considers that the level of protection generally granted to freedom of expression may be reduced in the light of important public-order interests related to that conduct. If the conduct associated with the expression of ideas is intimidating or threatening or interferes with the free exercise or enjoyment by another of any Convention right or privilege on account of that person ’ s race, these considerations cannot be disregarded even in the context of Articles 10 and 11. 67. In the instant case the impugned activities quite clearly targeted the Roma minority, which was supposedly responsible for “Gypsy criminality”, and the Court is not convinced by the applicant ’ s arguments that the intention of the dissolved entities was not the singling-out and intimidation of this vulnerable group (see Horváth and Kiss v. Hungary, no. 11146/11, § 102, 29 January 2013). In this connection the Court recognises the concerns of various international bodies (see paragraphs 26 - 28 above). 68. As the Court has already pointed out (see paragraph 57 above), in such circumstances the authorities could not be required to await further developments before intervening to secure the protection of the rights of others, since the Movement had taken concrete steps in public life to implement a policy incompatible with the standards of the Convention and democracy. 69. The Court considers that the intimidating character of the rallies in question is an overriding consideration, despite the fact that the actual assemblies were not banned by the authorities and no violent act or crime occurred. What matters is that the repeated organisation of the rallies (see paragraph 15 above) was capable of intimidating others and therefore of affecting their rights, especially in view of the location of the parades. With regard to the dissolution of the Association, it is immaterial that the demonstrations, taken in isolation, were not illegal, and the Court is not called upon in the present case to determine to what extent the demonstrations amounted to exercise of the Convention right of assembly. It may be only in the light of the actual conduct of such demonstrations that the real nature and goals of an association become apparent. In the Court ’ s view, organising a series of rallies allegedly in order to keep “Gypsy criminality” at bay by means of paramilitary parading can be regarded as implementing a policy of racial segregation. In fact, the intimidating marches can be seen as constituting the first steps in the realisation of a certain vision of “law and order” which is racist in essence. The Court would point out in this context that if the right to freedom of assembly is repeatedly exercised by way of intimidating marches involving large groups, the State is entitled to take measures restricting the related right to freedom of association in so far as it is necessary to avert the danger which such large-scale intimidation represents for the functioning of democracy (see paragraph 54 above). Large-scale, coordinated intimidation – related to the advocacy of racially motivated policies which are incompatible with the fundamental values of democracy – may justify State interference with freedom of association, even within the narrow margin of appreciation applicable in the present case. The reason for this relates to the negative consequences which such intimidation has on the political will of the people. While the incidental advocacy of anti-democratic ideas is not sufficient in itself to justify banning a political party on the ground of compelling necessity (see paragraph 53 above), and even less so in the case of an association which cannot make use of the special status granted to political parties, the circumstances taken overall, and in particular any coordinated and planned actions, may constitute sufficient and relevant reasons for such a measure, especially where other potential forms of expression of otherwise shocking ideas are not directly affected (see paragraph 71 in fine below). 70. In view of the above considerations, the Court is convinced that the arguments adduced by the national authorities were relevant and sufficient to demonstrate that the impugned measure corresponded to a pressing social need. 71. The Court is aware that the disbanding of the Movement and the Association represented quite a drastic measure. However, it is satisfied that the authorities nevertheless chose the least intrusive – indeed, the only reasonable – course of action to deal with the issue. Moreover, it is to be noted that the domestic authorities had previously drawn the attention of the Association to the unlawful nature of the Movement ’ s activities, a move which resulted only in formal compliance (see paragraph 9 above), to the extent that further rallies took place during the ongoing proceedings (see paragraph 15 above – compare S.H. and Others v. Austria [GC], no. 57813/00, § 84, ECHR 2011). In the Court ’ s view, the threat to the rights of others represented by the Movement ’ s rallies could be effectively eliminated only by removing the organisational back - up of the Movement provided by the Association. Had the authorities acquiesced in the continued activities of the Movement and the Association by upholding their legal existence in the privileged form of an entity under the law on associations, the general public might have perceived this as legitimisation by the State of this menace. This would have enabled the Association, benefiting from the prerogatives of a legally registered entity, to continue to support the Movement, and the State would thereby have indirectly facilitated the orchestration of its campaign of rallies. Furthermore, the Court notes that no additional sanction was imposed on the Association or the Movement, or on their members, who were in no way prevented from continuing political activities in other forms (see, a fortiori, Refah Partisi (the Welfare Party) and Others, cited above, §§ 133-34). In these circumstances, the Court finds that the measure complained of was not disproportionate to the legitimate aims pursued. 72. The foregoing considerations are sufficient to enable the Court to conclude that there has been no violation of Article 11 of the Convention. | The Court held that there had been no violation of Article 11 (freedom of assembly and association) of the Convention. It recalled in particular that, as with political parties, the State was entitled to take preventive measures to protect democracy against associations if a sufficiently imminent prejudice to the rights of others undermined the fundamental values upon which a democratic society rested and functioned. In this case, a movement created by the applicant’s association had led to demonstrations conveying a message of racial division, which, reminiscent of the Hungarian Nazi Movement (Arrow Cross), had had an intimidating effect on the Roma minority. Indeed, such paramilitary marches had gone beyond the mere expression of a disturbing or offensive idea, which is protected under the Convention, given the physical presence of a threatening group of organised activists. Therefore, the only way to effectively eliminate the threat posed by the movement had been to remove the organisational backup provided by the association. |
74 | Parental authority, child custody and access rights | II. RELEVANT DOMESTIC LAW 16. The relevant provisions of the Civil Code provide: Article 287 (in the version applicable at the material time) “Parental responsibility shall be exercised jointly by both parents. Failing an agreement or where the court considers that such an agreement goes against the child's interests, the court shall designate the parent with whom the children shall habitually reside. Where it is necessary in the interests of the child, the court may confer parental responsibility on one of the two parents. On their own initiative or at the court's request, the parents may submit their observations on the arrangements for exercising parental responsibility .” Article 287 - 2 (as worded at the material time) “Prior to any interlocutory or final decision setting out the arrangements for the exercise of parental responsibility and visiting rights, or entrusting the children to a third party, the court may instruct any qualified person to draw up a social inquiry report. The aim of this document is to gather information on the family's material and moral situation, the conditions in which the children live and are brought up, and the measures which should be taken in their interests. If one of the spouses disputes the conclusions of the social inquiry report, he or she may request a second expert opinion. The social inquiry report may not be used in the divorce proceedings .” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 17. The applicant complained firstly that the residence order stating that the children should live with their father had infringed her right to respect for her private and family life and had been discriminatory. She relied on Articles 8 and 14 of the Convention, the relevant parts of which provide as follows: Article 8 “1. Everyone has the right to respect for his private and family life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. Alleged violation of Article 8 taken in conjunction with Article 14 18. The applicant referred firstly to Hoffmann v. Austria (judgment of 23 June 1993, Series A no. 255 ‑ C). She considered that the same reasoning should be applied in the instant case and that the fact that custody of her two children, which she had enjoyed for two years, had been withdrawn ought to be regarded as interference with her right to respect for her family life. 19. She stressed that, in seeking to justify the interference, the Government based their arguments almost exclusively on allegations by her former husband, witness statements from his friends, the opinion of a psychiatrist consulted by him alone and the opinions of the children, which were necessarily dependent on the circumstances in which they had been obtained. 20. The applicant further asserted that the Nîmes Court of Appeal, having refused to order a social inquiry report, had assessed the situation in abstracto and had delivered a socially stigmatising judgment based mainly and decisively on her religious beliefs. She also claimed that the use of evidence provided by her former husband alone was merely a pretext for a value judgment against the Jehovah's Witnesses'convictions regarding family life, the national courts'real motivation having been the applicant's religious beliefs. 21. The applicant considered that she was justified in alleging a serious interference with her maternal rights and obligations, given firstly that the decision against her had been based on discriminatory grounds, and secondly that the father's home had been named as the children's habitual residence despite his conduct. She emphasised that he had abandoned his family and that he had subsequently refused to return the children to their mother's home, in violation of a judgment by the family-affairs judge. 22. Further, she challenged the statement that the children's interests had been carefully examined and, in consequence, denied that there was any justification for this interference. The applicant considered that the Court of Appeal had based its decision on erroneous and ex parte opinions, had rendered the proceedings unequal by refusing a psychological expert opinion and had been discriminatory in grounding its judgment of 14 January 1998 on her religious beliefs. 23. The Government did not dispute that the applicant's complaint fell within the scope of Article 8 of the Convention. However, they considered that, in the context of a divorce, court “intervention” was necessary but could not be considered “interference” within the meaning of Article 8 § 2. If, however, the Court were to consider that there had been interference with the applicant's rights, the Government argued that this was in accordance with the law, namely the Civil Code, served a legitimate aim, namely the children's interests, and was proportionate, since children's interests could, and sometimes must, prevail over those of their parents. 24. The Government submitted that the domestic courts might legitimately have considered, on the basis of objective evidence and after hearing the children's opinion, that the upbringing imposed by their mother obliged them to comply with constraints that were scarcely compatible with a balanced upbringing, requiring them in particular to engage in proselytising activities. 25. Furthermore, they considered that the conditions required for the application of Article 14 of the Convention had not been fulfilled. They submitted that the applicant and her ex-husband were in similar situations in that both could have the children's residence established at their respective homes. 26. They also submitted that in the instant case, as distinct from the situation condemned by the Court in Hoffmann, cited above, it was indeed the consequences of religious observance on the children's health and equilibrium that had been taken into account, and not merely the fact that the mother was a Jehovah's Witness. 27. The Government acknowledged that the Court of Appeal's judgment had condemned the results of the Jehovah's Witnesses'precepts regarding child-rearing in general terms, but asserted that the mere fact of the applicant's religious beliefs had not been the basis of this decision. According to the Government, the basis of the Court of Appeal's judgment, which had specified the damage suffered by the children, lay in the disadvantages already experienced by them, in that the medical certificate pointed to the existence of a degree of frustration due to the religion imposed by their mother, no medical certificate to the contrary having been submitted to invalidate the psychiatrist's opinion. In addition, the judgment noted that the applicant took her children with her when attempting to spread her religious beliefs, and that numerous witnesses had confirmed the children's wish to live with their father. Consequently, the Government considered that the Court of Appeal had ruled with reference to the particular circumstances and had justified its decision objectively and reasonably. 28. In the alternative, the Government considered that any possible distinction made in respect of the applicant on account of her religious convictions had been proportionate and justified on objective and reasonable grounds, namely the best interests of the children, which the national courts had assessed in a concrete manner in the light of objective factors. 29. The Court reiterates that Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, among many other authorities, Van Raalte v. the Netherlands, judgment of 21 February 1997, Reports of Judgments and Decisions 1997-I, p. 184, § 33, and Camp and Bourimi v. the Netherlands, no. 28369/95, § 34, ECHR 2000-X ). 30. The Court notes at the outset that, in the instant case, the two children had been living with their mother for almost three and a half years, ever since their father had left the family home, when the judgment by the Nîmes Court of Appeal established residence at their father's home. Accordingly, the Court considers that this judgment constitutes interference with the applicant's right to respect for her family life and cannot be regarded merely as the judicial intervention necessary in any divorce, as the Government submitted. The case therefore falls within the ambit of Article 8 of the Convention (see Hoffmann, cited above, p. 58, § 29). 31. Further, different treatment is discriminatory, for the purposes of Article 14, if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”. Moreover, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Karlheinz Schmidt v. Germany, judgment of 18 July 1994, Series A no. 291-B, pp. 32-33, § 24, and Camp and Bourimi, cited above, § 37). 32. The Court must therefore first examine whether the applicant can claim to have received different treatment. 33. In reversing the first-instance judgment and establishing the children's residence at their father's home, the Court of Appeal ruled on the conditions in which the applicant and her ex-husband respectively were raising their children. 34. To do this, the Court of Appeal had before it, on the one hand, a letter written by one of the children and submitted by the father, “expressing [the child's] wish to remain with his father” and a medical certificate from a psychiatrist, drawn up in January 1997, stating that child C. “experiences his mother's prohibitions, via the Jehovah's Witnesses, as distressing and frustrating ”, and that “ child M. suffers from the religious constraints imposed on him and expressed a wish to live in Aigues-Mortes with his father as far back as the beginning of 1997 ”. The Court of Appeal also mentioned “numerous statements” submitted to the court which testified to the children's wish not to return to Spain. 35. On the other hand, the applicant had filed with the Court of Appeal “numerous statements attesting to her affection for her children and showing that she provides for their well-being ” and “group photographs in which her children appear happy”. 36. The Court of Appeal considered that, taken as a whole, the documents submitted by the mother “ [were] not inconsistent with the arguments of R., who [ did ] not wish to deny the mother's maternal attributes, but [ restricted ] himself to criticising the strict upbringing received by the children on account of their mother's religious convictions”. 37. It appears from the remainder of the judgment that the Court of Appeal attached decisive importance to the applicant's religion. Having noted that the applicant “does not deny that she is a Jehovah's Witness or that the two children were being brought up in accordance with the precepts of this religion ”, the Court of Appeal ruled as follows: “The rules regarding child-rearing imposed by the Jehovah's Witnesses on their followers'children are open to criticism mainly on account of their strictness and intolerance and the obligation on children to proselytise. It is in the children's interests to be free from the constraints and prohibitions imposed by a religion whose structure resembles that of a sect. ” 38. There is therefore no doubt, in the Court's view, that the Court of Appeal treated the parents differently on the basis of the applicant's religion, on the strength of a harsh analysis of the principles regarding child-rearing allegedly imposed by this religion. 39. Such a difference in treatment is discriminatory in the absence of an “objective and reasonable justification”, that is, if it is not justified by a “legitimate aim” and if there is no “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see, among other authorities, Darby v. Sweden, judgment of 23 October 1990, Series A no. 187, p. 12, § 31, and Hoffmann, cited above, p. 59, § 33). 40. The Court is of the opinion that the aim pursued in the instant case, namely protection of the children's interests, is legitimate. 41. It remains to be determined whether there was a reasonably proportionate relationship between the means employed, namely establishing the children's residence at their father's home, and the legitimate aim sought. 42. The Court notes firstly that the Court of Appeal, in the two paragraphs of its judgment cited above, asserted only generalities concerning Jehovah's Witnesses. It notes the absence of any direct, concrete evidence demonstrating the influence of the applicant's religion on her two children's upbringing and daily life and, in particular, of the reference which the Government alleged was made in the Court of Appeal's judgment to the fact that the applicant took her children with her when attempting to spread her religious beliefs. In this context, the Court cannot accept that such evidence is constituted by the Court of Appeal's finding that the applicant “does not deny that she is a Jehovah's Witness or that the two children were being brought up in accordance with the precepts of this religion”. It further notes that the Court of Appeal did not consider it necessary to grant the applicant's request for a social inquiry report, a common practice in child custody cases; such an inquiry would no doubt have provided tangible information on the children's lives with each of their parents and made it possible to ascertain the impact, if any, of their mother's religious practice on their lives and upbringing during the years following their father's departure when they had lived with her. Accordingly, the Court considers that the Court of Appeal ruled in abstracto and on the basis of general considerations, without establishing a link between the children's living conditions with their mother and their real interests. Although relevant, that reasoning was not in the Court's view sufficient. 43. In those circumstances, the Court cannot conclude that there was a reasonably proportionate relationship between the means employed and the legitimate aim pursued. There has accordingly been a violation of Article 8 of the Convention taken in conjunction with Article 14. B Alleged violation of Article 8 taken alone 44. In view of the conclusion reached in the preceding paragraph, the Court does not consider it necessary to rule on the allegation of a violation of Article 8 taken alone, the arguments advanced in this respect having already been examined in respect of Article 8 taken in conjunction with Article 14. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 9 TAKEN ALONE OR IN CONJUNCTION WITH ARTICLE 14 45. The applicant complained that she had not had a fair hearing within the meaning of Article 6 § 1 of the Convention, in that the Court of Appeal had refused to order a social inquiry report. She also claimed that there had been interference with her freedom of religion within the meaning of Article 9, that this interference was discriminatory within the meaning of Article 9 taken in conjunction with Article 14, and referred in the submissions in support of her arguments to Article 2 of Protocol No. 1. 46. The Court considers that no separate issue arises under Article 6 or Article 9 taken alone or in conjunction with Article 14, or under Article 2 of Protocol No. 1, since the factual circumstances relied on are the same as those for the complaint under Article 8 taken in conjunction with Article 14, of which a violation has been found. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 47. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 48. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage. 49. The Government considered that the finding of a violation would constitute sufficient just satisfaction for any non-pecuniary damage sustained by the applicant. 50. The Court has found a violation of Articles 8 and 14, taken together, on account of the discrimination suffered by the applicant in the context of interference with the right to respect for her family life. It considers that the applicant sustained some non-pecuniary damage on account of this violation. Making its assessment on an equitable basis, the Court awards the sum of EUR 10,000 claimed by the applicant under this head. B. Costs and expenses 51. The applicant claimed EUR 3,125 in respect of costs and expenses incurred before the Court of Cassation and EUR 6,000 in respect of her lawyer's fees before the Court. 52. In this regard, the Government considered that only the costs incurred before the Court could be taken into account, subject to production of the relevant vouchers. 53. The Court notes, firstly, that the applicant's appeal to the Court of Cassation related primarily to the violation found. Accordingly, it awards her the totality of the costs incurred in lodging this appeal, namely EUR 3,125. As to presentation of the application to the Court, the Court notes that the costs are made up of a report by a university professor, for a fee of EUR 4,573.47, and the lawyer's fees proper, in the sum of EUR 1,426. 5 3, for which no voucher was produced. The Court considers that, bearing in mind the nature of the case and the existing legal precedents, it had not been necessary to commission a report from an academic, and that the applicant's lawyer could have carried out the necessary research himself. In addition, no relevant vouchers have been submitted as to the latter's fees. In those circumstances, the Court awards the applicant EUR 1, 000 for her representation before the Court. The Court therefore awards the applicant a total of EUR 4,125 for costs and expenses. C. Default interest 54. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | In the absence of a reasonable relationship of proportionality between the means employed and the aim pursued, the Court held that there had been a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private and family life) of the Convention. The Court observed in particular that when the Court of Appeal ruled that the children should live with their father they had been living with their mother for nearly three and a half years. Furthermore, in examining the conditions in which the applicant and her ex-husband had raised their children, the Court of Appeal had treated the parents differently on the basis of the applicant’s religion, on the strength of a harsh analysis of the educational principles allegedly imposed by the religion. The Court found that, in so doing, the appellate court had ruled on the basis of general considerations without establishing a link between the children’s living conditions with their mother and their real interests. Although relevant, that reasoning had not been sufficient. |
650 | Lawyers | II. RELEVANT DOMESTIC LAW 31. Article 595 of the Criminal Code provides for the offence of defamation. The relevant parts of that Article read as follows : “ Anyone who ..., in communication with more than one person, offends against the reputation of another, shall be punished by one year ’ s imprisonment or by a fine of up to EUR 1, 032. Defamation which consists in imputing a particular fact shall be punished by up to two years ’ imprisonment or by a fine of up to EUR 2, 065. Defamation which is disseminated by the press or any other form of publicity, or in a public document, shall be punished by imprisonment of between six months and three years or by a fine of at least EUR 516. In the event of defamation against a member of a political, administrative or judicial authority, or one of its representations ..., the sentences shall be increased. ” 32. Legislative Decree no. 274 of 28 August 2000 ( Article 4 § 1 ( a)) gave jurisdiction to the Justice of the Peace in matters of defamation, among others. Article 52 § 2 ( a) reads as follows : “ In respect of ... offences within the jurisdiction of the Justice of the Peace, the sentences shall be converted as follows : ( a) where the offence is punished by a sentence [ of imprisonment ] as an alternative to that of [ a fine ], a pecuniary sanction ... of between 500, 000 and 5,000, 000 lira shall be applied; if the custodial sentence is higher than a maximum of six months, the applicable sanction shall be the above-mentioned fine, or home detention of between six and thirty days, or a period of community service of between ten days and three months; ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 33. The applicant argued that his conviction for defamation had breached Article 10 of the Convention, which reads as follows : “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 34. The Government challenged that argument. A. Admissibility 35. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions ( a) The applicant 36. The applicant submitted that he had been convicted on account of a letter in which he had set out his thoughts on the different ways of interpreting and exercising the duties of a judge. His assessments had not been interpreted in line with their real meaning and had been connected to a subject, X, who was not the actual target. According to the applicant, there was no evidence that he intended to impugn the reputation and integrity of X. Moreover, the anomaly in the Italian justice system whereby judges were not de facto accountable for their conduct had been underlined by many European decisions, by books and by websites. It was the court system as a whole, and not X, which had been the target of the applicant ’ s criticism. 37. The applicant further observed that Genoa District Court had given him a custodial sentence not prescribed by law, and that although he had no criminal record he had not been granted general mitigating circumstances ( attenuanti generiche ). The applicant alleged that he had sent his circular letter to a number of judges at Lucca District Court solely to avoid undermining the reciprocal relationships of friendship and esteem between him and those judges, and to protect himself against any distortion of the content of his letter to the CSM. He also stated that the conduct of X, who had refused any attempt to reach a friendly settlement to the dispute, had been driven by feelings of animosity towards him. ( b) The Government 38. The Government took the view that the interference with the applicant ’ s right to freedom of expression pursued the legitimate aims of the protection of the “reputation or rights of others” and of the “authority and impartiality of the judiciary”. They argued that it was also necessary in a democratic society, because the expressions used by the applicant in his circular letter had been offensive and had sought to denigrate X, who had been accused, in substance, of deliberately and knowingly taking an unfair decision, and of being arrogant, lacking in commitment and indifferent. X had thus been portrayed negatively and as a judge who showed total disregard for the fundamental ethical principles of his profession. 39. In the Government ’ s opinion, the applicant ’ s attitude could not be justified in the light of the judicial disagreement which lay behind his animosity towards X. In addition, the Court of Appeal had acknowledged the existence of mitigating circumstances in the applicant ’ s favour and reduced the amount of the sanction imposed on him at first instance. 40. In the light of the foregoing, the Government took the view that in sentencing the applicant, the domestic courts, which were better placed than the international court to assess the facts and the necessity of the interference, had not overstepped their margin of appreciation in such matters. If there had been a violation of the Convention, it had been committed by the applicant, who had unduly impugned the reputation of X, protected as it was by Article 8. 2. The Court ’ s assessment ( a) Whether there has been an interference 41. It is not in dispute between the parties that the applicant ’ s conviction constituted an interference with his right to freedom of expression under Article 10 § 1 of the Convention ( see, mutatis mutandis, Belpietro v. Italy, no. 43612/10, § 43, 24 September 2013). ( b) Whether the interference was justified : “prescribed by law” and “legitimate aim” 42. An interference will infringe the Convention if it does not meet the requirements of paragraph 2 of Article 10. It should therefore be determined whether it was “prescribed by law”, whether it pursued one or more of the legitimate aims set out in that paragraph and whether it was “necessary in a democratic society” in order to achieve the relevant aim or aims ( see Pedersen and Baadsgaard v. Denmark, no. 49017/99, § 67, ECHR 2004-XI, and Ricci v. Italy, no. 30210/06, § 43, 8 October 2013 ). 43. It is not in dispute that the interference was prescribed by law, namely by Article 595 of the Criminal Code ( see paragraph 31 above ) and Article 52 § 2 ( a) of Legislative Decree no. 274 of 2000 ( see paragraph 32 above ). The applicant ’ s conviction pursued the legitimate aim of protecting the reputation and rights of another, in this case those of X ( see, mutatis mutandis, Nikula v. Finland, no. 31611/96, § 38, ECHR 2002-II; Perna v. Italy [GC], no. 48898/99, § 42, ECHR 2003-V; Ormanni v. Italy, no. 30278/04, § 57, 17 July 2007; and Belpietro, cited above, § 45). It also had the aim of “maintaining the authority and impartiality of the judiciary”, of which X, a judge, was a member ( see, for example and mutatis mutandis, Kyprianou v. Cyprus [GC], no. 73797/01, § 168, ECHR 2005-XIII; Foglia v. Switzerland, no. 35865/04, § 83, 13 December 2007; July and SARL Libération v. France, no. 20893/03, § 59, ECHR 2008; and Di Giovanni v. Italy, no. 51160/06, § 74, 9 July 2013 ). 44. It remains to be ascertained whether the interference was “necessary in a democratic society”. ( c) “Necessary in a democratic society” ( i ) General principles 45. In order to determine whether the interference was “necessary in a democratic society”, the Court must ascertain whether it met a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “ restriction ” is reconcilable with freedom of expression as protected by Article 10 ( see Janowski v. Poland [GC], no. 25716/94, § 30, ECHR 1999-I; Association Ekin v. France, no. 39288/98, § 56, ECHR 2001 ‑ VIII; and Stoll v. Switzerland [GC], no. 69698/01, § 101, ECHR 2007-V). 46. The Court ’ s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they have delivered pursuant to their power of appreciation ( see Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I). This does not mean that the supervision is limited to ascertaining whether the respondent State has exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole, including the remarks held against the applicant and the context in which they were written ( see News Verlags GmbH & Co. KG v. Austria, no. 31457/96, § 52, ECHR 2000-I). 47. In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference are “relevant and sufficient” and whether the interference was “proportionate to the legitimate aims pursued” ( see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004-VI). In so doing, the Court has to satisfy itself that the national authorities, basing their decisions on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10 ( see, among many other authorities, Zana v. Turkey, 25 November 1997, § 51, Reports of Judgments and Decisions 1997-VII; De Diego Nafría v. Spain, no. 46833/99, § 34, 14 March 2002; and Pedersen and Baadsgaard, cited above, § 70). 48. In order to assess the justification for a given statement, it is necessary to distinguish between statements of fact and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof ( see Oberschlick v. Austria ( no. 2), 1 July 1997, § 33, Reports 1997-IV) and in such cases a requirement to provide proof is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 ( see Morice v. France [GC], no. 29369/10, § 155, ECHR 2015). The characterisation of remarks as statements of fact and value judgments falls primarily within the ambit of the margin of appreciation afforded to national authorities, in particular the domestic courts ( see Prager and Oberschlick v. Austria, 26 April 1995, § 36, Series A no. 313). However, even where a statement amounts to a value judgment, it must have a sufficient factual basis to support it, otherwise it may be excessive ( see Jerusalem v. Austria, no. 26958/95, § 43, ECHR 2001-II, and Ormanni, cited above, § 64). 49. In addition, the existence of procedural safeguards for the benefit of a defendant in defamation proceedings is among the factors to be taken into account in assessing the proportionality of an interference under Article 10. In particular, it is important for the defendant to be afforded a realistic chance to prove that there was a sufficient factual basis for his allegations ( see, inter alia, Steel and Morris v. the United Kingdom, no. 68416/01, § 95, ECHR 2005-II; Hasan Yazıcı v. Turkey, no. 40877/07, § 54, 15 April 2014; and Morice, cited above, § 155). 50. A particular aspect of the present case is that, at the material time, the applicant was a lawyer and his dispute with X had arisen in the context of his professional activity. In its Nikula judgment ( cited above, § 45; see also Steur v. the Netherlands, no. 39657/98, § 36, ECHR 2003-XI, and Fuchs v. Germany (dec.), nos. 29222/11 and 64345/11, § 39, 27 January 2015), the Court summarised as follows the specific principles applicable to the legal professions : “The Court reiterates that the special status of lawyers gives them a central position in the administration of justice as intermediaries between the public and the courts. Such a position explains the usual restrictions on the conduct of members of the Bar. Moreover, the courts – the guarantors of justice, whose role is fundamental in a State based on the rule of law – must enjoy public confidence. Regard being had to the key role of lawyers in this field, it is legitimate to expect them to contribute to the proper administration of justice, and thus to maintain public confidence therein (see Schöpfer v. Switzerland, judgment of 20 May 1998, Reports of Judgments and Decisions 1998-III, pp. 1052-53, §§ 29-30, with further references).” 51. In addition, in the case of Morice ( cited above, §§ 134 and 139), the Court observed that: ( a) lawyers are entitled to comment in public on the administration of justice, provided that their criticism does not overstep certain bounds in order to protect the judiciary from gratuitous and unfounded attacks, which may be driven solely by a wish or strategy to ensure that the judicial debate is pursued in the media or to settle a score with the judges handling a particular case; ( b) lawyers cannot make remarks that are so serious that they overstep the permissible expression of comments without a sound factual basis; and ( c) remarks by lawyers must be assessed in their general context, in particular to ascertain whether they can be regarded as misleading or as a gratuitous personal attack, and to ensure that the expressions used had a sufficiently close connection with the facts of the case. 52. It is also necessary to take into account that the defamed party, X, was a serving member of the judiciary. According to the Court ’ s case-law, the limits of acceptable criticism may in some circumstances be wider with regard to judges acting in their official capacity than to ordinary citizens ( see Morice, cited above, § 131). However, it cannot be said that civil servants knowingly lay themselves open to close scrutiny of their every word and deed to the extent to which politicians do and should therefore be treated on an equal footing with the latter when it comes to criticism of their actions. Civil servants must enjoy public confidence in conditions free of undue perturbation if they are to be successful in performing their tasks. It may therefore prove necessary to protect them from offensive and abusive verbal attacks in the course of their duties ( see Janowski, cited above, § 33, and Nikula, cited above, § 48). 53. It should lastly be reiterated that the nature and severity of the penalties imposed are factors to be taken into account when assessing the proportionality of an interference ( see, for example, Ceylan v. Turkey [GC], no. 23556/94, § 37, ECHR 1999-IV; Tammer v. Estonia, no. 41205/98, § 69, ECHR 2001-I; and Cumpănă and Mazăre v. Romania [GC], no. 33348/96, §§ 113-115, ECHR 2004-XI). ( ii ) Application of those principles to the present case 54. The Court notes at the outset that the applicant argued, both before it ( see paragraph 36 above ) and before the domestic courts ( see paragraph 19 above ), that the criticisms in his circular letter were not directed at X but at the Italian judicial system as a whole. The Court cannot agree with this argument. It observes in this connection that the letter in question ( see paragraph 7 above ) contained express references to the letter that the applicant had sent to the CSM to complain about the conduct of X, and that passages from that letter had been quoted in extenso. In addition, the applicant summed up the main aspects of the judicial dispute in the context of which, according to him, X had taken unfair decisions, of which the reasons were briefly set out. 55. The applicant ’ s circular letter was divided into two parts : the first part contained an account of the decisions taken in the partition procedure; the second contained considerations on behaviour from which judges should refrain and its consequences. In the Court ’ s view, even though the second part of the letter was drafted in the form of “general considerations”, it can be interpreted only as a criticism of the conduct of the judge, X, who, without being expressly mentioned is the protagonist in the account which constituted the “premise” of the applicant ’ s observations and assessments. 56. In those circumstances, the Court shares the findings of the District Court and the Genoa Court of Appeal ( see paragraphs 16 and 23 above ) according to which X was certainly the subject of the grievances set out in the circular letter. It remains to be determined whether the remarks in question overstepped the bounds of admissible criticism in a democratic society. 57. It can be seen from the text of the circular letter ( see paragraph 7 above ), that in substance the applicant reproached X on two accounts : ( a) for taking unfair and arbitrary decisions, and ( b) for being a “biased” judge and for having “wilfully made mistakes, by malicious intent, serious misconduct or negligence”. 58. In the Court ’ s view, the first criticism amounts to a value judgment as to the nature and legal basis of the decisions taken by X. As indicated in paragraph 48 above, according to the Court ’ s case-law the truth of such opinions is not susceptible of proof. Moreover, they had a certain factual basis. In particular, the applicant had been the representative of one of the parties to judicial proceedings for the partition of an inheritance. In the context of those proceedings, the applicant had on a number of occasions sought to have the sale of a flat suspended, and his requests had been dismissed by X on the basis of reasoning which, according to the applicant ’ s subjective opinion, was erroneous and contrary to the law. 59. The Court, therefore, cannot consider the first criticism to be excessive ( see, mutatis mutandis, Morice, cited above, §§ 156- 61, where the Court found that criticisms made by the lawyer acting for the civil party about the conduct of the investigating judges during the judicial investigation were value judgments with a sufficient factual basis ). 60. The same cannot be said, however, when it comes to the second criticism, namely that X was a “biased” judge who had “wilfully made mistakes, by malicious intent, serious misconduct or negligence”. This criticism implied that X had disregarded the ethical obligations inherent in the duty of a judge, or even that she had committed a criminal offence. The adoption by a judge of a deliberately erroneous decision could constitute an abuse of authority. In any event, the circular letter alleged that X did not have the qualities of impartiality, independence or objectivity – qualities which characterise the exercise of judicial activity. However, the applicant never sought to prove the veracity of the conduct attributed to X and adduced no evidence to show any malicious intent in the decisions that he contested. In the Court ’ s view, his allegations of misconduct on the part of X were based only on the fact that the judge had dismissed the claims he had submitted in the interest of his clients ( contrast Morice, cited above, §§ 156- 61). It is also noteworthy that the applicant, who had referred a complaint against judge X ( see paragraph 6 above ), sent out his circular letter without waiting for the outcome of the CSM proceedings. 61. In defending himself before the domestic courts, the applicant merely argued that his criticisms had not been directed at X in person ( see, mutatis mutandis, Perna, cited above, §§ 44-47, and Fuchs, decision cited above, § 41; see also, by contrast, Nikula, cited above, § 51, where the Court observed that the applicant ’ s criticisms had only concerned the manner in which a public prosecutor had discharged his duties in a given court case, and not any professional or other qualities of the prosecutor in question). The Court, however, has already dismissed that argument ( see paragraphs 54-56 above ). 62. The Court also takes account of the context in which the circular letter was written and distributed. In this connection it would first note that the applicant ’ s criticisms were not made at the hearing or in the course of the judicial proceedings for the partition of an inheritance. In that sense the present case can be distinguished from Nikula, cited above ( see, in particular, paragraph 52), where the Court found a violation of Article 10 of the Convention. 63. The Court further observes that, outside the judicial procedure, the applicant sent his circular letter to X in person ( see paragraph 13 above ) and to many other judges at the Lucca District Court ( see paragraph 6 above ). As the Genoa Court of Appeal rightly observed ( see paragraph 27 above ), the distribution of the letter within a small community, such as that of a local court, would inevitably harm the reputation and professional image of the judge concerned. 64. Lastly, the Court notes that, while it is true that at first instance the applicant was given a custodial sentence, without the benefit of mitigating circumstances in view of his clean criminal record, that sanction was replaced on appeal by a small fine of EUR 400, which, moreover, was declared fully discharged ( see paragraph 22 above ). In addition, that mitigation was applied by the judges at second instance ( see paragraph 26 above ) and the amount of the compensation awarded to X ( EUR 15, 000) cannot be regarded as excessive. 65. The Court would further observe that, in cases such as the present one, which call for a fair balance to be struck between the right to respect for private life and the right to freedom of expression, it takes the view that the adjudication of the application should not in principle vary depending on whether it has been lodged under Article 8 by the person criticised or under Article 10 by the author of the criticism. The two rights merit, in principle, equal respect ( see Hachette Filipacchi Associés (ICI PARIS) v. France, no. 12268/03, § 41, 23 July 2009; Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010; and Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011). Accordingly, the margin of appreciation should, in principle, be the same in both cases. If the striking of a balance by the domestic courts is consistent with the criteria established by the Court ’ s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts ( see Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57, ECHR 2011, and MGN Limited v. the United Kingdom, no. 39401/04, §§ 150 and 155, 8 January 2011). In the Court ’ s view, there are no such reasons in the present case ( see, mutatis mutandis, Di Giovanni, cited above, § 82). 66. Having regard to the foregoing, the Court finds that the applicant ’ s conviction for the defamatory remarks contained in the circular letter and the sanction imposed on him were not disproportionate to the legitimate aims pursued and that the grounds given by the national courts were relevant and sufficient for the purposes of justifying those measures. The interference with the applicant ’ s right to freedom of expression was “necessary in a democratic society” in order to protect the reputation of others and to maintain the authority and impartiality of the judiciary within the meaning of Article 10 § 2. 67. It follows that there has been no violation of Article 10. | The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention. It found in particular that one of the two criticisms levelled against Judge X by the applicant had implied that the former had disregarded his ethical obligations as a judge or had even committed a criminal offence. However, the applicant had not sought to establish the truth of his allegations of wrongful conduct. The Court considered that his conviction could reasonably be considered necessary in a democratic society in order to protect the reputation of others and maintain the authority and impartiality of the judiciary. |
111 | Corporal punishment | ii. relevant domestic law A. Criminal sanctions against the assault of children 12. The applicant ’ s stepfather was charged with “assault occasioning actual bodily harm” contrary to section 47 of the Offences against the Person Act 1861, as amended. An “assault”, for the purposes of this section, includes an act by which a person intentionally or recklessly inflicts personal violence upon another. “Actual bodily harm” includes any hurt or injury calculated to interfere with the health or comfort of the victim; the hurt or injury need not be permanent but must be more than transitory or trifling. The maximum penalty on conviction is five years ’ imprisonment. 13. In addition, it is an offence under section 1(1) of the Children and Young Persons Act 1933 to assault or ill-treat a child in a manner likely to cause him unnecessary suffering or injury to health. The maximum penalty on conviction is ten years ’ imprisonment. 14. In criminal proceedings for the assault of a child, the burden of proof is on the prosecution to satisfy the jury, beyond a reasonable doubt, inter alia that the assault did not constitute lawful punishment. Parents or other persons in loco parentis are protected by the law if they administer punishment which is moderate and reasonable in the circumstances. The concept of “reasonableness” permits the courts to apply standards prevailing in contemporary society with regard to the physical punishment of children. Corporal punishment of a child by a teacher cannot be justified if the punishment is inhuman or degrading. In determining whether punishment is inhuman or degrading, regard is to be had to “all the circumstances of the case, including the reason for giving it, how soon after the event it is given, its nature, the manner and circumstances in which it is given, the persons involved and its mental and physical effects” (section 47(1)(a) and (b) of the Education (no. 2) Act 1986, as amended by section 293 of the Education Act 1993). B. Civil remedies for assault 15. Physical assault is actionable as a form of trespass to the person, giving the aggrieved party the right to recovery of damages. In civil proceedings for assault, whilst the elements of the tort are the same as those of the criminal offence, the burden of proof of establishing that punishment was reasonable is on the defendant, on the balance of probabilities. PROCEEDINGS BEFORE THE COMMISSION 16. A. applied to the Commission on 15 July 1994. He complained that the State had failed to protect him from ill-treatment by his step-father, in violation of Articles 3 and/or 8 of the Convention; that he had been denied a remedy for these complaints in violation of Article 13; and that the domestic law on assault discriminated against children, in violation of Article 14 in conjunction with Articles 3 and 8. 17. The Commission declared the application (no. 25599/94 ) admissible on 9 September 1996. In its report of 18 September 1997 (Article 31), it expressed the opinion that there had been a violation of Article 3 (unanimously); that it was not necessary to consider the complaint under Article 8 (sixteen votes to one); that there had been no violation of Article 13 (unanimously) and that it was not necessary to consider the complaint under Article 14 in conjunction with Articles 3 and 8 of the Convention. The full text of the Commission ’ s opinion and of the two separate opinions contained in the report is reproduced as an annex to this judgment [3]. FINAL SUBMISSIONS TO THE COURT 18. In their memorial and at the hearing, the Government accepted the reasoning and the conclusion of the Commission that there had been a violation of Article 3. However, they asked the Court to confine itself to considering the facts of the case without making any general statement about the corporal punishment of children. The applicant asked the Court to find violations of Articles 3 and 8 of the Convention and to confirm that national law should not condone directly or by implication any level of deliberate violence to children. AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 19. The applicant asked the Court to find a violation of Article 3 of the Convention, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Both the Commission and the Government accepted that there had been a violation of Article 3. Despite this, the Court considers it necessary to examine itself the issues in this case (see, for example, the Findlay v. the United Kingdom judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, p. 263). As is its usual practice, the Court will limit examination to the specific facts of the case before it. 20. The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim (see the Costello-Roberts v. the United Kingdom judgment of 25 March 1993, Series A no. 247-C, p. 59, § 30). 21. The Court recalls that the applicant, who was then nine years old, was found by the consultant paediatrician who examined him to have been beaten with a garden cane which had been applied with considerable force on more than one occasion (see paragraph 9 above). The Court considers that treatment of this kind reaches the level of severity prohibited by Article 3. 22. It remains to be determined whether the State should be held responsible, under Article 3, for the beating of the applicant by his stepfather. The Court considers that the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals (see, mutatis mutandis, the H.L.R. v. France judgment of 29 April 1997, Reports 1997-III, p. 758, § 40). Children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity (see, mutatis mutandis, the X and Y v. the Netherlands judgment of 26 March 1985, Series A no. 91, pp. 11–13, §§ 21–27; the Stubbings and Others v. the United Kingdom judgment of 22 October 1996, Reports 1996-IV, p. 1505, §§ 62–64; and also the United Nations Convention on the Rights of the Child, Articles 19 and 37). 23. The Court recalls that under English law it is a defence to a charge of assault on a child that the treatment in question amounted to “reasonable chastisement” (see paragraph 14 above). The burden of proof is on the prosecution to establish beyond reasonable doubt that the assault went beyond the limits of lawful punishment. In the present case, despite the fact that the applicant had been subjected to treatment of sufficient severity to fall within the scope of Article 3, the jury acquitted his stepfather, who had administered the treatment (see paragraphs 10–11 above). 24. In the Court ’ s view, the law did not provide adequate protection to the applicant against treatment or punishment contrary to Article 3. Indeed, the Government have accepted that this law currently fails to provide adequate protection to children and should be amended. In the circumstances of the present case, the failure to provide adequate protection constitutes a violation of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 25. Article 8 of the Convention provides as follows: “1. Everyone has the right to respect for his private ... life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 26. The Commission concluded that, given its finding of a violation of Article 3, it was not necessary to consider the issues under Article 8. The Government asked the Court also to take this approach. 27. In his memorial to the Court, the applicant submitted that, if the Court were to find a violation of Article 3, he would not pursue his complaint under Article 8. However, at the hearing before the Court, he contended that, in the light of the Government ’ s memorial and their proposals for legislative change, it was necessary for the Court to rule under Article 8 in order to provide guidance to the Government and protection for children against all forms of deliberate violence. 28. The Court recalls that it has found a violation of Article 3 in the present case. In these circumstances it is not necessary to examine whether the inadequacy of the legal protection provided to A. against the ill-treatment that he suffered also breached his right to respect for private life under Article 8. III. ALLEGED VIOLATIONs OF ARTICLES 13 AND 14 OF THE CONVENTION 29. The applicant accepted the Commission ’ s finding of no violation of Article 13 of the Convention and did not pursue his complaint under Article 14 of the Convention taken in conjunction with Articles 3 and/or 8. 30. In these circumstances, it is not necessary for the Court to consider these complaints. IV. APPLICATION OF ARTICLE 50 OF THE CONVENTION 31. The applicant claimed just satisfaction under Article 50 of the Convention, which provides: “If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.” A. Non-pecuniary damage 32. The applicant sought compensation for the grave physical abuse which he had suffered at the hands of his stepfather. He pointed out that, because of the inadequacy of English law, he had also had to endure the trauma of criminal proceedings which resulted in the acquittal of his stepfather. At the hearing before the Court, his representative suggested that 15,000 pounds sterling (GBP) would be an appropriate sum by way of compensation. 33. Prior to the hearing before the Court, the Government had informed the applicant that they accepted the Commission ’ s finding of violation of Article 3 and undertook to amend domestic law. In addition, they had offered the applicant an ex gratia payment of GBP 10,000. At the hearing before the Court, however, they submitted that, in the light of their undertaking to amend the law, a finding of a breach would be adequate just satisfaction. 34. The Court considers that, in the circumstances of the case, the applicant should be awarded GBP 10,000 in respect of compensation for non-pecuniary damage. B. Costs and expenses 35. The applicant claimed legal costs and expenses totalling GBP 48,450. 36. The Government submitted that, in view of their admission of a violation of Article 3 and offer of settlement, the applicant should not receive any legal costs in respect of the proceedings before the Court. In any event, they considered that the hourly rates charged by his representatives and the number of hours charged were excessive and should be reduced. 37. In view of the limited number of issues raised by the case and the absence of any detailed breakdown of the costs claimed, the Court considers the sum requested by the applicant to be excessive (see, for example, the Coyne v. the United Kingdom judgment of 24 September 1997, Reports 1997-V, p. 1856, § 66). Making its assessment on an equitable basis, it awards GBP 20,000 in respect of costs and expenses, less the amounts received by way of legal aid from the Council of Europe, but together with any value-added tax which may be payable. C. Default interest 38. According to the information available to the Court, the statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment is 7.5% per annum. | The Court considered that children and other vulnerable individuals in particular were entitled to protection, in the form of effective deterrence, from such forms of ill-treatment. It found a violation of Article 3 (prohibition of inhuman or degrading treatment or punishment) of the Convention, as English law did not adequately protect the boy. |
755 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Constitutional provisions 41. Article 74 of the Turkish Constitution of 1924 reads as follows: “ No one shall be deprived of his possessions save in the public interest as established by a procedure provided for by law and subject to prior compensation. The methods for the assessment and payment of compensation for the expropriation of land and forests, for the purposes of enabling farmers to own land and of nationalising forests, shall be determined by special statutes. ” 42. The relevant provisions of the Turkish Constitution of 1982 read as follows: THE LAW 68. The applicants submitted that the annulment of their document of title and its re-registration in the name of the Treasury, without payment of compensation, constituted disproportionate interference with their right to the peaceful enjoyment of their possessions, within the meaning of Article 1 of Protocol No. 1. ... II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 83. The applicants submitted that the annulment of their document of title and its re- registration in the name of the Treasury, without payment of compensation, constituted disproportionate interference with their right to the peaceful enjoyment of their possessions within the meaning of Article 1 of Protocol No. 1, which reads as follows: “ Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. ” A. The parties ’ submissions 1. The applicants 84. The applicants stated that the domestic courts had decided to register land for which they had held a document of title for at least three generations as belonging to the Treasury. They pointed out that the land had been purchased in 1913 by Hurşit Güneş, to whom the competent authorities had issued a document of title in due form; their ascendants had then inherited the land, which on 9 July 1960 had been registered in their names in the land registers. Furthermore, they submitted that the surveys classifying the land as part of the forest estate did not reflect reality, since a military holiday camp, comprising, inter alia, houses, a tennis court, a picnic area, a kitchen, various storerooms and accommodation for private use, had been built there in the 19 70s even though the applicants had not transferred the land to third parties and had not been notified of any expropriation or other measure depriving them of their property in the public interest. In the applicants ’ submission, the annulment of their document of title and the registration of the land as belonging to the Treasury, without payment of any compensation, constituted disproportionate interference with their right to the peaceful enjoyment of their possessions. 2. The Government 85. The Government maintained that the applicants and/or their ascendants had held a document of title over land which was part of the public forest estate, whereas according to the provisions of the Constitution, land of this kind could not be privately owned. They pointed out that Article 1 of Protocol No. 1 allowed the State to limit the right of property in the public interest. In this context, the State could also permanently and fully deprive a person of title in the context of nationalisation or expropriation. In this particular case, since plot no. 135 was located within the public forest estate, pursuant to the provisions of the Constitution, the property at issue could not be privately owned. The applicants ’ document of title had therefore had no legal value, all the more so as they could not have had any legitimate expectations. Furthermore, the State could legitimately intervene to protect the environment and forest land and, in this regard, it had a wide margin of appreciation. B. The Court ’ s assessment 86. The Court observes that according to its case-law, Article 1 of Protocol No. 1, which in substance guarantees the right of property, comprises three distinct rules (see, in particular, James and Others v. the United Kingdom, 21 February 1986, § 37, Series A no. 98): the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. The second and third rules are concerned with particular instances of interference with the right to the peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule ( see Bruncrona v. Finland, no. 41673/98, §§ 65-69, 16 November 2004, and Broniowski v. Poland [GC], no. 31443/96, § 134, ECHR 2004-V). 87. In determining whether there has been a deprivation of possessions within the second rule of Article 1 of Protocol No. 1, it is necessary not only to consider whether there has been a formal taking or expropriation of property but to look behind the appearances and investigate the realities of the situation complained of. Since the Convention is intended to guarantee rights that are “practical and effective”, it has to be ascertained whether the situation amounted to a de facto expropriation ( see Brumărescu v. Romania [GC], no. 28342/95, § 76, ECHR 1999 ‑ VII; Sporrong and Lönnroth v. Sweden, 23 September 1982, §§ 63 and 69 ‑ 74, Series A no. 52; Vasilescu v. Romania, 22 May 1998, §§ 39 ‑ 41, Reports of Judgments and Decisions 1998 ‑ III; and N.A. and Others v. Turkey, no. 37451/97, §§ 37 and 39, ECHR 2005 ‑ X ). 88. The Court notes that in the present case there has been interference with the applicants ’ right to the peaceful enjoyment of their possessions, which amounts to a “ deprivation ” of property within the meaning of the first paragraph of Article 1 of Protocol No. 1 ( see, mutatis mutandis, Brumărescu, cited above, § 77). 89. The Court notes firstly that the applicants ’ good faith in taking possession of the property, as regards the part acquired in 1911, is not contested. [7] It is not in dispute that until their document of title was declared void and ownership was transferred to the Treasury, the applicants had been the rightful owners of the property, with all the attendant consequences under domestic law, and that they had further enjoyed “ legal certainty ” as to the validity of the title entered in the land register, which constitutes undisputable evidence of ownership. 90. The Court further observes that the applicants were deprived of their property by a court decision. Despite the applicants ’ objections as to the nature of the land, the domestic courts eventually declared their document of title void pursuant to the provisions of the Constitution, relying on surveys which included the land as part of the forest estate. Having regard to the reasons given by the domestic courts, the Court considers that the purpose of depriving the applicants of their property, namely to protect nature and forests, falls within the scope of public interest within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1 (see, mutatis mutandis, Lazaridi v. Greece, no. 31282/04, § 34, 13 July 2006, and Ansay v. Turkey (dec .), no. 49908/99, 2 March 2006). It notes in this regard that while none of the Articles of the Convention is specifically designed to provide general protection of the environment as such ( see Kyrtatos v. Greece, no. 41666/98, § 52, ECHR 2003 ‑ VI ), in today ’ s society the protection of the environment is an increasingly important consideration ( see Fredin v. Sweden ( no. 1), 18 February 1991, § 48, Series A no. 192 ). The Court notes that it has on various occasions dealt with questions relating to environmental protection and stressed the importance of this issue (see, for example, Taşkın and Others v. Turkey, no. 46117/99, ECHR 2004 ‑ X; Moreno Gómez v. Spain, no. 4143/02, ECHR 2004 ‑ X; Fadeyeva v. Russia, no. 55723/00, ECHR 2005 ‑ IV; and Giacomelli v. Italy, no. 59909/00, ECHR 2006 ‑ XII ). The protection of nature and forests, and, more generally, the environment, is a cause whose defence arouses the constant and sustained interest of the public, and consequently the public authorities. Financial imperatives and even certain fundamental rights, such as ownership, should not be afforded priority over environmental protection considerations, in particular when the State has legislated in this regard ( see Hamer v. Belgium, no. 21861/03, § 79, ECHR 2007 ‑ V ). 91. However, in the case of deprivation of property, compensation terms under the relevant domestic legislation are material to the assessment of whether the contested measure observes the requisite fair balance and, notably, whether it does not impose a disproportionate burden on the applicants. The Court has already held in this connection that the taking of property without payment of an amount reasonably related to its value normally constitutes a disproportionate interference, and a total lack of compensation can be considered justifiable under Article 1 of Protocol No. 1 only in exceptional circumstances ( see Nastou v. Greece ( no. 2), no. 16163/02, § 33, 15 July 2005; Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 111, ECHR 2005 ‑ VI; The Holy Monasteries v. Greece, 9 December 1994, § 71, Series A no. 301 ‑ A; and N.A. and Others v. Turkey, cited above, § 41 ). In the instant case, the applicants received no compensation for the transfer of their property to the Treasury pursuant to Article 169 § 2 of the Constitution. The Court notes that the Government have not relied on any exceptional circumstance in order to justify the total lack of compensation. 92. Consequently, the Court considers that the failure to award the applicants any compensation upsets, to their detriment, the fair balance that should be struck between the demands of the general interest of the community and the requirement of the protection of individual rights. 93. There has therefore been a violation of Article 1 of Protocol No. 1. ... | The Court held that there had been a violation of Article 1 of Protocol No. 1 to the Convention. Recalling in particular that the protection of nature and forests, and of the environment in general, was a matter of considerable and constant concern to public opinion and consequently to the public authorities, and that economic imperatives and even certain fundamental rights, including the right of property, should not be placed before considerations relating to environmental protection, in particular when there was legislation on the subject, the Court also noted, however, that the taking of property without payment of an amount reasonably related to its value normally constituted a disproportionate interference, and a total lack of compensation could be considered justifiable only in exceptional circumstances. In the present case, the applicants had not received any compensation for the transfer of their property to the Treasury. No exceptional circumstance had further been raised by the Turkish Government in order to justify the lack of compensation. The Court therefore found that the failure to award the applicants any compensation had upset, to their detriment, the fair balance that had to be struck between the demands of the general interest of the community and the requirements of the protection of individual rights. |
171 | Deprivation of liberty and challenging the lawfulness of detention | II. RELEVANT DOMESTIC LAW AND PRACTICE 38. Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980 (a) Appeals against decisions on the entry, residence, settlement and expulsion of aliens Section 63 “Administrative decisions may give rise to an appeal under the expedited procedure, an application to reopen the proceedings, a request for security measures to be lifted, an application to an administrative court to have the decision set aside or an appeal to an ordinary court in accordance with the following provisions. No summary application for an interim order under Article 584 of the Judicature Code will lie against an administrative decision taken pursuant to sections 3, 7, 11, 19, Part II, Chapter II, and Part III, Chapter I bis. ...” (b) Measures entailing deprivation of liberty Section 71 “Aliens against whom a measure depriving them of their liberty has been taken pursuant to sections 7, 2 5, 27, 29, second paragraph, 51/ 5(3), fourth paragraph, 52 bis, fourth paragraph, 54, 63 /5, third paragraph, 67 and 74/ 6 may appeal against that measure by lodging a notice of appeal with the chambre du conseil of the criminal court with jurisdiction for the area in which they reside in the Kingdom or the area in which they have been found. Aliens held in a designated place at the border pursuant to section 74/ 5 may appeal against the measure by lodging a notice of appeal with the chambre du conseil of the criminal court with jurisdiction for the area in which they are being held. They may renew the appeal referred to in the preceding paragraphs at monthly intervals.” Section 72 “The chambre du conseil shall deliver its decision within five working days after the date the appeal is lodged after hearing the submissions of the alien or of his or her counsel and the opinion of Crown Counsel. If the case has been referred to it by the Minister in accordance with section 74, the chambre du conseil must hear submissions from the Minister, his or her delegate or his or her counsel. If it fails to deliver its decision within the time allowed, the alien shall be released. The chambre du conseil shall review the legality of the detention and of the removal directions but shall have no power to review their reasonableness. An appeal shall lie against orders of the chambre du conseil by the alien, Crown Counsel and, in the circumstances set out in section 74, the Minister or his or her delegate. The procedure shall be the same as that applicable under the statutory provisions on pre-trial detention, with the exception of the provisions relating to arrest warrants, investigating judges, prohibitions on communications, release on licence or on bail, and the right to inspect the administrative file. Counsel for the alien may consult the case file at the registry of the relevant court during the two working days preceding the hearing. The registrar shall notify counsel of the decision by registered letter.” Section 73 “If the chambre du conseil decides that the alien is not to remain in custody, he or she shall be released as soon as the decision becomes final. The Minister may order the alien to reside in a designated place either until the removal directions have been carried out or until his or her appeal has been decided.” Section 74 “If the Minister decides to prolong the alien ’ s detention or to keep him or her under arrest pursuant to section 7, paragraph 5, section 25, paragraph 5, section 29, paragraph 3, section 74/ 5 ( 3 ), or section 74 / 6 ( 2 ), he or she must apply within five working days of that decision to the chambre du conseil with jurisdiction for the area in which the alien is resident in the Kingdom or was found to enable it to determine whether the decision is lawful. If no application is made to the chambre du conseil within that period, the alien shall be released. The remainder of the procedure shall be as stated in sections 72 and 73.” Section 74/ 4 “§ 1. Any public or private carrier bringing passengers into the Kingdom who are not in possession of the documents required by section 2 or who come within any of the other categories referred to in section 3 shall transport or arrange for the transport of such passengers without delay to the country from which they have come or to any other country prepared to accept them. § 2. Any public or private carrier which has brought passengers into the Kingdom will also be required to remove them if: (a) the carrier that was due to take them to their country of destination refuses to allow them to embark; or (b) the authorities in the State of destination refuse them leave to enter and send them back to the Kingdom and access to the Kingdom is refused because they do not possess the documents required by section 2 or they fall within any of the other categories referred to in section 3. § 3. If the passengers do not possess the documents required by section 2 and their immediate removal is not possible, the public or private carrier shall be jointly liable with the passengers for the costs of the passengers ’ accommodation and stay and any medical expenses they incur. ...” Section 74/ 5 “§ 1. The following persons may be held in a designated place at the border pending the grant or refusal of leave to enter the Kingdom or their removal from the territory: 1 o aliens who, pursuant to the provisions of this Act, are liable to be refused entry by the immigration authorities; 2 o aliens who attempt to enter the Kingdom without satisfying the conditions set out in section 2, who claim to be refugees and request refugee status at the border. § 2. The Crown may designate other places within the Kingdom which will be assimilated to the places referred to in § 1. Aliens held in such other places shall not be deemed to have been given leave to enter the Kingdom. § 3. Detention in a designated place at the border may not exceed two months. The Minister or his or her delegate may however prolong the detention of an alien referred to in § 1 for two-month periods provided: 1 o the alien is the subject of enforceable removal directions, an enforceable decision to refuse entry or an enforceable decision upholding the refusal of entry; and 2 o the steps necessary to remove the alien are taken within seven working days of the decision or measure referred to in 1 o and are prosecuted with all due diligence and the alien ’ s physical removal within a reasonable period remains possible. After one extension has been granted, the decision referred to in the preceding paragraph may only be taken by the Minister. The total length of detention shall under no circumstances exceed five months. If the preservation of law and order or national security so demands, aliens may be held for further successive one-month periods after the time-limit referred to in the preceding paragraph has expired, provided that the total length of their detention shall not on that account exceed eight months. § 4. The following may enter the Kingdom: 1 o aliens referred to in § 1 against whom no decision or enforceable measure referred to in § 3, paragraph 1, 1 o has been taken; 2 o aliens referred to in § 1 against whom an enforceable decision or measure referred to in § 3, paragraph 1, 1 o has been taken but in respect of whom the Minister or his or her delegate has not extended the period at the end of the two-month period or of any extension thereof; 3 o aliens referred to in § 1 who have been held for a total period of five or eight months respectively. ...” III. RELEVANT INTERNATIONAL LAW AND PRACTICE 39. Convention on the Rights of the Child of 20 November 1989, ratified by Belgium by a law of 25 November 1991 Article 3 “1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision .” Article 10 “1. In accordance with the obligation of States Parties under Article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family. ...” Article 22 “1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties. 2. For this purpose, States Parties shall provide, as they consider appropriate, cooperation in any efforts by the United Nations and other competent intergovernmental organisations or non-governmental organisations cooperating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason, as set forth in the present Convention.” Article 37 “States Parties shall ensure that: ... ( b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; ( c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child ’ s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances; ...” 40. In its “ Concluding observations of the Committee on the Rights of the Child: Belgium ” of 13 June 2002, the Committee on the Rights of the Child made the following recommendation to Belgium : “28. ... (a) Expedite efforts to establish special reception centres for unaccompanied minors, with special attention to those who are victims of trafficking and/or sexual exploitation; (b) Ensure that the stay in those centres is for the shortest time possible and that access to education and health is guaranteed during and after the stay in the reception centres; (c) Approve as soon as possible the draft law on the creation of a guardianship service, in order to ensure the appointment of a guardian for an unaccompanied minor from the beginning of the asylum process and thereafter as long as necessary, and make sure that this service is fully independent, allowing it to take any action it considers to be in the best interests of this minor; (d) Ensure unaccompanied minors are informed of their rights and have access to legal representation in the asylum process; (e) Improve cooperation and exchange of information among all the actors involved, including the Aliens Office and other relevant authorities, police services, tribunals, reception centres and NGOs; (f) Ensure that, if family reunification is carried out, it is done in the best interests of the child; (g) Expand and improve follow-up of returned unaccompanied minors.” THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION 41. The applicants complained that the second applicant had been detained and deported in violation of Article 3 of the Convention, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Detention of the second applicant 1. The applicants ’ submissions 42. The applicants submitted that the detention of the second applicant, who was then five years old, for nearly two months in a closed centre for adults constituted inhuman or degrading treatment prohibited by Article 3 of the Convention. They explained that Transit Centre no. 127 was a closed centre near Brussels Airport used to detain illegal immigrants pending their removal from the country. As had been noted in the Committee on the Rights of the Child ’ s second report on Belgium dated 7 July 2002, no facilities for children of the second applicant ’ s age existed in 2002. Accordingly, no arrangements were in place to attend to the second applicant ’ s needs and the only assistance she received was from another Congolese minor. Despite all the assistance given by individual members of staff, the fact remained that there had been a violation of Article 3 of the Convention as, at a crucial stage in her development, the second applicant had been denied freedom of movement, had been unable to play or express her feelings, and had been held in precarious conditions in an adult world where liberty was restricted. The Government had had other, more appropriate, options at their disposal. They could, for instance, have placed the second applicant with the Aid to Young People Department. The applicants noted, lastly, that the second applicant had suffered from sleeping disorders after her release from detention. 2. The Government ’ s submissions 43. The Government argued that, in order to determine whether the second applicant ’ s detention for two months in a closed centre – Transit Centre no. 127 – was capable of constituting inhuman or degrading treatment, the facts of the case had to be taken into account. In their submission, it had not been possible for the child to be given permission to enter Belgian territory without any identity papers or a visa. Nor could she have been allowed to leave with her uncle, as he had not provided any evidence to show that he was her guardian or established that he was a relative. At that juncture the Canadian authorities had not offered to issue a laissez-passer, and indeed none had been requested by the applicants. Had the first applicant travelled to Belgium, her daughter ’ s detention and subsequent removal would, no doubt, have been avoided. 44. The chances of finding accommodation in a more suitable centre were virtually non-existent and, above all, would not have guaranteed the child ’ s supervision or, therefore, her protection. There had accordingly been a risk that she would disappear. Furthermore, although the place of detention was not adapted to the needs of a five-year-old child, particularly for what turned out to be quite a lengthy period, the explanation for this lay in the exceptional circumstances of the case and in the fact that, since situations of this type were relatively rare at the time, adequate procedures and structures had yet to be established. Legislation had since been introduced in the form of the financial planning Act ( loi-programme ) of 24 December 2002, which provided for the appointment of a guardian and for the minor to be taken into care. In addition, on 19 May 2006, the Cabinet had approved in principle a measure intended to prohibit the detention in a closed centre of unaccompanied foreign minors arrested at the border. 45. The first applicant had been informed of her daughter ’ s situation straightaway and had been allowed to speak with her on the telephone for as long as she wished. The staff at the centre had gone to considerable lengths to look after the second applicant, as Mr Ma. had noted in his letter of 23 August 2002. Moreover, in his report of 23 November 2004, the director of Transit Centre no. 127 had noted that the medical and administrative staff at the centre had been attentive to her needs, that she had had daily telephone contact with her mother and uncle and had been integrated into the family life of children of her own age by the children ’ s mothers. In the light of all this, it was not so much the second applicant ’ s detention in the instant case that was in issue but the very principle of the detention of minors and the fact that the Belgian authorities had rejected the proposed alternative accommodation. 46. As to the length of the detention, the explanation for this lay in the lengths to which the authorities had gone to clarify the second applicant ’ s situation, a particular example of this being the care with which the Commissioner-General for Refugees and Stateless Persons had examined her expedited appeal. Various requests for information had been made by the Aliens Office to various persons and bodies, including international organisations and private individuals in Canada and the Democratic Republic of Congo, in order to find the most appropriate solution. Another contributory factor had been the unceasing efforts the Belgian authorities had made to find a suitable home for the second applicant in her country of origin following the dismissal of her application for asylum. 47. The Government further alleged that areas of uncertainty remained in the case. For example, why was it that no application for a visa was made at the time to enable the second applicant to continue her journey to Canada and what had become of the second applicant ’ s father. There were also question marks over the first applicant ’ s conduct : she had not mentioned the existence of her two children in her application for asylum in Canada or sought a visa to enable her to travel to Belgium as a matter of urgency, firstly to be with her daughter and then to take her back to Canada. The Government considered that both the first applicant and the family had failed to cooperate with the competent authorities and had brought the situation of which they now complained upon themselves by treating certain matters as a “ fait accompli ”. They argued that the first applicant could not therefore hold the Belgian State accountable for the two months during which it had looked after the second applicant as well as it was able. 3. The Court ’ s assessment 48. Article 3 makes no provision for exceptions. This absolute prohibition of torture and of inhuman or degrading treatment or punishment under the terms of the Convention shows that Article 3 enshrines one of the fundamental values of the democratic societies making up the Council of Europe ( see Soering v. the United Kingdom, 7 July 1989, § 8 8, Series A no. 161). In order to fall within the scope of Article 3, the ill-treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim ( see, among other authorities, Raninen v. Finland, 16 December 1997, § 55, Reports of Judgments and Decisions, 1997 ‑ VIII ). In order to carry out this assessment, regard must be had to “ the fact that the Convention is a ‘ living instrument which must be interpreted in the light of present-day conditions ’ [and] that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies ” ( see, mutatis mutandis, Selmouni v. France [GC], no. 25803/94, § 101, ECHR 1999-V). 49. The Court will first examine the Article 3 complaint of the second applicant – she being the person who was detained – before proceeding to consider the complaint of her mother (the first applicant), who also claims that she was a victim of the measure. ( a) The second applicant 50. The Court notes that the second applicant, who was only five years old, was held in the same conditions as adults. She was detained in a centre that had initially been designed for adults, even though she was unaccompanied by her parents and no one had been assigned to look after her. No measures were taken to ensure that she received proper counselling and educational assistance from qualified personnel specially mandated for that purpose. That situation lasted for two months. It is further noted that the respondent State have acknowledged that the place of detention was not adapted to her needs and that there were no adequate structures in place at the time. 51. A five-year-old child is quite clearly dependent on adults and has no ability to look after itself so that, when separated from its parents and left to its own devices, it will be totally disoriented. 52. The fact that the second applicant received legal assistance, had daily telephone contact with her mother or uncle and that staff and residents at the centre did their best for her cannot be regarded as sufficient to meet all her needs as a five-year-old child. The Court further considers that the uncoordinated attention she received was far from adequate. 53. It reiterates that the obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals ( see, mutatis mutandis, Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001-V, and A. v. the United Kingdom, 23 September 1998, § 22, Reports 1998-VI). Steps should be taken to enable effective protection to be provided, particularly to children and other vulnerable members of society, and should include reasonable measures to prevent ill-treatment of which the authorities have or ought to have knowledge ( see Osman v. the United Kingdom, 28 October 1998, § 116, Reports 1998-VIII). 54. In this connection, the Court must examine whether or not the impugned regulations and practices, and in particular the manner in which they were implemented in the instant case, were defective to the point of constituting a violation of the respondent State ’ s positive obligations under Article 3 of the Convention. 55. The second applicant ’ s position was characterised by her very young age, the fact that she was an illegal immigrant in a foreign land and the fact that she was unaccompanied by her family from whom she had become separated so that she was effectively left to her own devices. She was thus in an extremely vulnerable situation. In view of the absolute nature of the protection afforded by Article 3 of the Convention, it is important to bear in mind that this is the decisive factor and it takes precedence over considerations relating to the second applicant ’ s status as an illegal immigrant. She therefore indisputably came within the class of highly vulnerable members of society to whom the Belgian State owed a duty to take adequate measures to provide care and protection as part of its positive obligations under Article 3 of the Convention. 56. The Court observes that, whereas under the general law minors came within the jurisdiction of the youth courts, there was a legal void at the time in respect of unaccompanied foreign minors. The respondent State accepted that the prospects of finding accommodation in a more suitable centre were virtually non-existent and that such centres as did exist did not have facilities for the child ’ s supervision or, therefore, protection. Furthermore, there was no statutory basis on which the courts could review the conditions under which minors were held or require the authorities to provide legal, humanitarian and social assistance where necessary ( see, mutatis mutandis, Amuur v. France, 25 June 1996, § 53, Reports 1996-III). The only available remedy was an application to the chambre du conseil under section 71 of the aforementioned Act. In such cases, the question before the chambre du conseil was whether the detention was lawful, not whether it was appropriate. 57. Following an application by the second applicant ’ s lawyer on 9 October 2002, the chambre du conseil ruled on 16 October 2002 that the second applicant ’ s detention was unlawful under the Convention on the Rights of the Child and ordered her immediate release. It expressly found that it had no jurisdiction to examine the appropriateness of detention or the conditions in which she was held, or to modify the regime and order alternative arrangements. Moreover, prior to applying to the chambre du conseil, the second applicant ’ s lawyer had referred the matter to the Aliens Office on 26 September 2002 and, referring to her isolation and the risks of psychological damage, requested her placement with foster parents or, failing that, in a specialised institution. The inescapable conclusion must therefore be that the domestic authorities failed to take action to avoid or remedy the alleged shortcomings, despite being expressly informed of the position. Furthermore, in his decision of 25 September 2002, the Commissioner-General for Refugees and Stateless Persons had drawn the Minister of the Interior ’ s attention to the fact that the second applicant was a minor and entitled to be reunited with her family by virtue of Article 10 of the Convention on the Rights of the Child. On 13 June 2002 the Committee on the Rights of the Child had recommended that the Belgian State should expedite efforts to establish special reception centres and that stays in such centres should be for the shortest time possible. 58. The Court considers that the measures taken by the Belgian authorities – informing the first applicant of the position, giving her a telephone number where she could reach her daughter, appointing a lawyer to assist the second applicant and liaising with the Canadian authorities and the Belgian embassy in Kinshasa – were far from sufficient to fulfil the Belgian State ’ s obligation to provide care for the second applicant. The State had, moreover, had an array of means at its disposal. The Court is in no doubt that the second applicant ’ s detention in the conditions described above caused her considerable distress. Nor could the authorities who ordered her detention have failed to be aware of the serious psychological effects it would have on her. In the Court ’ s view, the second applicant ’ s detention in such conditions demonstrated a lack of humanity to such a degree that it amounted to inhuman treatment. 59. There has therefore been a violation of Article 3 of the Convention. ( b) The first applicant 60. The Court reiterates, firstly, that Article 3 affords absolute protection, irrespective of any reprehensible conduct on the part of the applicant ( see, mutatis mutandis, Soering, cited above, § 88). Accordingly, it cannot accept the Belgian Government ’ s argument that the conduct of the first applicant was such as to prevent the Court from finding a violation. 61. The Court reiterates, secondly, that the issue whether a parent qualifies as a “ victim ” of the ill-treatment of his or her child will depend on the existence of special factors which give the applicant ’ s suffering a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation. Relevant elements will include the proximity of the family tie – in that context, a certain weight will attach to the parent-child bond – the particular circumstances of the relationship and the way in which the authorities responded to the parent ’ s enquiries. The essence of such a violation lies in the authorities ’ reactions and attitudes to the situation when it is brought to their attention. It is especially in respect of this latter factor that a parent may claim directly to be a victim of the authorities ’ conduct ( see, mutatis mutandis, Çakıcı v. Turkey [GC], no. 23657/94, § 98, ECHR 1999-IV, and Hamiyet Kaplan and Others v. Turkey, no. 36749/97, § 67, 13 September 2005 ). 62. As regards the Belgian authorities ’ conduct towards the first applicant, it is apparent from the material before the Court that the only action the Belgian authorities took was to inform her that her daughter had been detained and to provide her with a telephone number where she could be reached. The Court has no doubt that, as a mother, the first applicant suffered deep distress and anxiety as a result of her daughter ’ s detention. In view of the circumstances of the case, the Court concludes that the level of severity required for a violation of Article 3 of the Convention was attained in the present case. 63. There has therefore been a violation of Article 3 of the Convention. B. The second applicant ’ s deportation 1. The applicants ’ submissions 64. The applicants also alleged that the Belgian authorities had engaged in treatment proscribed by Article 3 of the Convention in that they had deported the second applicant without awaiting the Canadian authorities ’ decision on their application for family reunification and had failed to ensure that she would be met by a member of the family or, at least, a Belgian official. They said that the second applicant, who was only five years old at the time, had travelled without anyone being assigned to accompany her and had been forced to wait at Kinshasa Airport from 5 p.m. until approximately 11 p.m., when Ms T. arrived to collect her. In their submission, deporting the child of a person with recognised refugee status was contrary to the fundamental rule that asylum - seekers should not be expelled. There was, furthermore, a danger in such cases that the authorities in the country of origin would use the child ’ s presence there to compel the refugee to return or even that they would seek to exact revenge on the child. The applicants added that the Government had been aware that neither B., who was a student, nor any other member of the family was in a position to look after the second applicant. In their submission, their case had to be distinguished from the case of Nsona v. the Netherlands (28 November 1996, Reports 1996 ‑ V), in which a nine-year-old girl had been deported in an aircraft belonging to one of her father ’ s acquaintances and had been accompanied by a ( sufficiently ) close relative. The present case was different in that the second applicant had travelled alone. It was not enough to say that an air hostess had been assigned to look after her by the airline. Furthermore, the complications in Nsona had come about following the intervention of counsel for the applicant in that case, which was not the position in the present case. The fact that the Belgian authorities had been aware of the first applicant ’ s refugee status in Canada and that the second applicant had ultimately returned to Europe after five days indicated that the decision to deport her was disproportionate. Lastly, as the applicants had already stated with regard to the second applicant ’ s detention, the Government had had other means at their disposal. 2. The Government ’ s submissions 65. The Government submitted that in the absence of papers authorising the second applicant to travel and to enter the country, the Belgian authorities had had no reason not to deport her. In addition, the first applicant had at no stage established that she was the child ’ s mother and the Belgian authorities had managed to establish contact with other members of her family. In those circumstances, they had acted properly in sending the child back to her family. The Government said that removal had been necessary and that there had been a legal basis for it, so that the arguments had to be confined to the conditions in which the deportation had taken place. They observed that the applicants had not alleged that the second applicant was at risk of treatment proscribed by Article 3 if she returned to Kinshasa; the applicants ’ argument was that, on account of her age, deportation itself constituted proscribed treatment. In the Government ’ s submission, the arrangements made for the second applicant ’ s removal were comparable to those in Nsona and, indeed, in certain respects were more favourable than in that case. Although the trauma suffered by the child and the lack of anyone to meet her at Kinshasa Airport were regrettable, there had been no problems with the conditions in which the second applicant had travelled as she had been accompanied all the way to the airport by a social worker and there placed in the care of an air hostess who had been assigned to accompany her by the airline, as its report dated 25 October 2002 indicated. The Belgian authorities had, moreover, received assurances that members of the second applicant ’ s family would collect her at the airport. Nor were the authorities responsible for the fact that her uncle, B., had reneged on his promise at the last minute; in any event, his failure to turn up had been of no consequence because the child was met by a representative of the Congolese authorities, who had accommodated her for the night. The Government considered that primary responsibility for the additional inconvenience that was caused to the child lay with B. Nevertheless, they acknowledged that the deportation was not executed with proper vigilance. In particular, they admitted that they should have anticipated the possibility that B. might not turn up and regretted not having done so. The Government nonetheless considered that the child ’ s family had no grounds for complaint in that respect, as it was the family, and in particular the first applicant, who were responsible for the situation. 3. The Court ’ s assessment 66. The Court will begin by examining the complaint concerning the second applicant ’ s rights and would state at the outset that it is struck by the failure to provide adequate preparation, supervision and safeguards for her deportation. For example, the Belgian authorities stood by their decision to proceed with the second applicant ’ s deportation on 17 October 2002 despite two new factual developments, these being the chambre du conseil ’ s decision of the previous day to order her immediate release on the grounds that her detention was unlawful and the fact that the UNHCR had informed the authorities that the first applicant had acquired refugee status in Canada. 67. As regards the conditions in which the second applicant travelled, the Court notes that, although an assistant from the centre accompanied her as far as customs, the second applicant had to travel alone as the Belgian authorities had not assigned an adult to accompany her. As to the arrangements in her country of origin, the Belgian authorities merely informed her uncle B., who was the only relative they had managed to trace in Kinshasa, of her arrival, but did not expressly require his presence or make sure that he would be at the airport. The Court cannot, therefore, accept the Government ’ s submission that they were not responsible for the situation or for the fact that B. did not turn up. The Belgian authorities had not considered or made alternative arrangements for the second applicant ’ s arrival and it was only after several hours ’ wait at the airport that a solution – and a wholly improvised one at that – was found by the Congolese authorities. 68. In the Court ’ s view, this shows that the Belgian authorities did not seek to ensure that the second applicant would be properly looked after or have regard to the real situation she was likely to encounter on her return to her country of origin. This view is not altered by the fact that the airline decided to assign an air hostess – an ordinary member of the flight crew – to look after her for the duration of the flight or that the second applicant was ultimately taken into the home of a representative of the Congolese authorities after an almost six-hour wait at the airport. 69. The Court considers that the second applicant ’ s deportation in such conditions was bound to cause her extreme anxiety and demonstrated such a total lack of humanity towards someone of her age and in her situation as an unaccompanied minor as to amount to inhuman treatment. The Court also finds that, by deporting the second applicant, the Belgian State violated its positive obligations to take requisite measures and precautions. 70. As regards the first applicant and in the light of the case-law it has cited in relation to the previous complaint (see paragraph 61 above), the Court notes in particular that the Belgian authorities did not trouble themselves to advise her of her daughter ’ s deportation so that she only became aware of it when she tried to reach her at the closed centre on the telephone after the deportation had already taken place. The Court has no doubt that this caused the first applicant deep anxiety. The disregard such conduct showed for her feelings and the evidence in the case file lead the Court to find that the requisite threshold of severity has been attained in the present case. 71. It follows from the foregoing that there has been a violation of both applicants ’ rights under Article 3 of the Convention on account of the second applicant ’ s deportation. II. ALLEGED VIOLATIONS OF ARTICLE 8 OF THE CONVENTION 72. The applicants complained that the second applicant ’ s detention and deportation also violated Article 8 of the Convention, which reads: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The second applicant ’ s detention 1. The applicants ’ submissions 73. The applicants submitted that the second applicant ’ s detention also violated Article 8 of the Convention as it constituted disproportionate interference with their right to respect for their private and family life. The Belgian State was or should have been aware of the first applicant ’ s refugee status in Canada because of the letters it had received from Mr Ma. and the UNHCR ’ s intervention. The applicants argued that family reunification was a fundamental right of refugees and cited, among other authorities, Recommendation 1327 (1997) of the Parliamentary Assembly of the Council of Europe on the protection and reinforcement of the human rights of refugees and asylum-seekers in Europe. In their submission, the obligations incumbent on States that were parties to the Convention on the Rights of the Child signed in New York on 20 November 1989 (and in particular, Articles 3 and 10 thereof) could be used as a guide when assessing whether the interference with the child ’ s family life had been necessary. The reasons given by the Government in no way justified the interference, which had consisted of the second applicant ’ s detention notwithstanding a proposal by her lawyer for her to be placed with foster parents. Her illegal entry was not a reason for denying her fundamental rights; nor did her inability to travel to the Netherlands prevent her placement with foster parents. Furthermore, although family reunification in Canada would have taken some time, there had been no need to keep the child in a closed centre. Nor could the fact that members of her family had been located in Kinshasa serve to justify her detention since she was the daughter of a person with recognised refugee status and her return to her country of origin placed her safety and even her life at risk. The fact that the first applicant had been granted refugee status in Canada should, furthermore, have alerted the Belgian authorities to the need to act with great caution. Lastly, while the applicants accepted that the first applicant had been wrong to ask her brother to bring her daughter to Europe, they said that she had done so in the belief that it was in her daughter ’ s best interests. 2. The Government ’ s submissions 74. The Government pointed out that, while Article 8 did in principle apply to cases concerning aliens, an alien ’ s family life had to be reconciled with the State ’ s prerogatives in immigration cases. The Court had consistently affirmed in its case-law the principle that the State Parties to the Convention were entitled to control the entry of non-nationals into their territory and that that prerogative, which could result in interference with the alien ’ s family life, had to be exercised in conformity with the second paragraph of Article 8. In the Government ’ s submission, keeping an alien in detention after he or she had attempted to enter the national territory without complying with the relevant conditions and had asked to be given refugee status while the application for asylum was considered could not in itself be considered to constitute a violation of his or her family life. Detention enabled the State to issue a deportation order that would be enforceable in practice in the event of the request for asylum being turned down. The Government accepted that it was legitimate to enquire whether these principles ought to be moderated when the immigrant concerned was a young child. However, they nevertheless considered that in the instant case there had been no infringement of the second applicant ’ s family life for several reasons: (i) on her arrival at the airport, her uncle had fraudulently tried to pass her off as his daughter; (ii) no members of the family lived in Belgium; (iii) according to the information that had been provided to the authorities, it would not have been legally possible for the second applicant to continue her journey to the Netherlands with her uncle; (iv) the first applicant had not made any application for family reunification at the material time; (v) certain members of the family whom it had been possible to locate in Kinshasa had been contacted personally and duly informed of the second applicant ’ s arrival in her country of origin – moreover, there was no doubt that she would be permitted to enter the country; (vi) the Belgian authorities were not informed that the first applicant had been granted refugee status until 18 October 2002, that is to say, until after the deportation order had been executed. The Government further questioned why between July 2001 and August 2002 the first applicant had not made an application to the Canadian authorities and / or to the Canadian embassy in Kinshasa with a view to arranging for her daughter ’ s lawful immigration, preferring instead to use an illegal route with her brother ’ s assistance. They said in conclusion that the second applicant ’ s detention in a closed centre during the period necessary for the examination of her request for asylum and her appeal under the expedited procedure and from then till 17 October 2002 did not amount to interference that was contrary to the Convention. 3. The Court ’ s assessment 75. The Court considers that, by its very essence, the tie between the second applicant, a minor child, and her mother – the first applicant – comes within the definition of family life within the meaning of Article 8 of the Convention ( see, among other authorities, Keegan v. Ireland, 26 May 1994, § 44, Series A no. 290, and Hokkanen v. Finland, 23 September 1994, § 54, Series A no. 299-A), especially considering that in the instant case the first applicant had been granted refugee status, so that the interruption of family life was solely a result of her decision to flee her country of origin out of a genuine fear of persecution within the meaning of the Geneva Convention Relating to the Status of Refugees of 28 July 1951. The Government did not dispute the fact that the relationship between the applicants constituted family life and, in this connection, the Court reiterates that the mutual enjoyment by parent and child of each other ’ s company constitutes a fundamental element of family life ( see, mutatis mutandis, Olsson v. Sweden ( no. 1), 24 March 1988, § 59, Series A no. 130; Eriksson v. Sweden, 22 June 1989, § 58, Series A no. 156; and Gnahoré v. France, no. 40031/98, § 50, ECHR 2000-IX). 76. In the Court ’ s view, the second applicant ’ s detention amounted to interference with both applicants ’ rights under Article 8 of the Convention. Indeed, this was not disputed by the Government. 77. The Court reiterates that an infringement of an individual ’ s right to respect for his or her private and family life will violate Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims set out in paragraph 2 and is “necessary in a democratic society”, in other words, proportionate to the pursued objectives. The question before the Court is whether the interference was justified under paragraph 2 of Article 8 of the Convention. 78. The Court observes that the detention was based on section 74 / 5 of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980 and was therefore in accordance with the law. 79. The second defendant was detained under the authorities ’ powers to control the entry and residence of aliens on the territory of the Belgian State. The decision to detain could have been in the interests of national security or the economic well-being of the country or, just as equally, for the prevention of disorder or crime. The Court therefore concludes that the interference pursued a legitimate aim for the purposes of the second paragraph of Article 8 of the Convention. 80. In order to determine whether the impugned measures were “necessary in a democratic society”, the Court will examine, in the light of the case as a whole, whether the detention was necessary in a democratic society, that is to say, whether it was justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued ( see Amrollahi v. Denmark, no. 56811/00, § 33, 11 July 2002; Boultif v. Switzerland, no. 54273/00, § 46, ECHR 2001 ‑ IX; Adam v. Germany (dec.), no. 43359/98, 4 October 2001; and Mokrani v. France, no. 52206/00, § 26, 15 July 2003). The Court ’ s task here is to determine whether the second applicant ’ s detention struck a fair balance between the competing interests in the case. 81. The Convention does not guarantee, as such, any right for an alien to enter or stay on the territory of the State of which he or she is not a national ( see Moustaquim v. Belgium, 18 February 1991, § 43, Series A no. 193, and Beldjoudi v. France, 26 March 1992, § 74, Series A no. 234-A). Furthermore, the Contracting States are under a duty to maintain public order, in particular by exercising their right, as a matter of well-established international law, to control the entry and residence of aliens. In this connection, detention in centres used for aliens awaiting deportation will be acceptable only where it is intended to enable the States to combat illegal immigration while at the same time complying with their international obligations, including those arising under the European Convention on Human Rights and the Convention on the Rights of the Child ( ratified by Belgium in 1991). Furthermore, the States ’ interest in foiling attempts to circumvent immigration rules must not deprive aliens of the protection afforded by these conventions or deprive foreign minors, especially if unaccompanied, of the protection their status warrants. The protection of fundamental rights and the constraints imposed by a State ’ s immigration policy must therefore be reconciled. 82. The Court observes that the effect of the second applicant ’ s detention was to separate her from the member of her family in whose care she had been placed and who was responsible for her welfare, with the result that she became an unaccompanied foreign minor, a category in respect of which there was a legal void at the time. Her detention significantly delayed the applicants ’ reunification. The Court further notes that, far from assisting her reunification with her mother, the authorities ’ actions in fact hindered it. Having been informed at the outset that the first applicant was in Canada, the Belgian authorities should have made detailed enquiries of their Canadian counterparts in order to clarify the position and bring about the reunification of mother and daughter. The Court considers that that duty became more pressing from 16 October 2002 onwards, that being the date when the Belgian authorities received the fax from the UNHCR contradicting the information they had previously held. 83. The Court considers that the complaint can also be analysed from the perspective of the second applicant ’ s private life. It has often said that the expression “private life” is broad and does not lend itself to exhaustive definition. Thus, private life, in the Court ’ s view, includes a person ’ s physical and mental integrity. The guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings ( see, mutatis mutandis, Niemietz v. Germany, 16 December 1992, § 29, Series A no. 251-B; Botta v. Italy, 24 February 1998, § 32, Reports 1998-I; and Von Hannover v. Germany, no. 59320/00, § 50, ECHR 2004 -VI ). In this connection, in the absence of any risk of the second applicant ’ s seeking to evade the supervision of the Belgian authorities, her detention in a closed centre for adults was unnecessary. Other measures could have been taken that would have been more conducive to the higher interest of the child guaranteed by Article 3 of the Convention on the Rights of the Child. These included her placement in a specialised centre or with foster parents. Indeed, these alternatives had in fact been proposed by the second applicant ’ s counsel. 84. The Court considers that, in view of her young age, the second applicant cannot bear any responsibility for her uncle ’ s attempts to deceive the Belgian authorities by passing her off as his daughter. The same applies to the conduct of her mother and family. Further, although the first applicant ’ s conduct was questionable and does not appear to have been entirely fault-free, it was not such as to deprive her of victim status in the instant case. 85. Ultimately, since the second applicant was an unaccompanied foreign minor, the Belgian State was under an obligation to facilitate the family ’ s reunification ( see, mutatis mutandis, Johansen v. Norway, 7 August 1996, § 78, Reports 1996 ‑ III; Eriksson, cited above, § 71; Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000-I; and Nuutinen v. Finland, no. 32842/96, § 127, ECHR 2000 ‑ VIII ). 86. In the light of all the foregoing considerations, the Court finds that there has been disproportionate interference with the applicants ’ right to respect for their family life. 87. There has therefore been a violation of Article 8 of the Convention. B. The second applicant ’ s deportation 1. The applicants ’ submissions 88. The applicants relied on the arguments they had used with respect to the complaint under Article 3 of the Convention. 2. The Government ’ s submissions 89. The Government argued that it had to be remembered that the first applicant had sought to deceive the Belgian authorities with her brother ’ s help. Her brother had clearly stated to the Belgian authorities that it was not his intention to look after his niece, as he did not wish to have problems with the Dutch authorities. The first applicant could have used her refugee papers or her Congolese passport, which had been issued on 27 September 2002, to travel. Moreover, her request to the Canadian authorities for asylum did not extend to the second applicant and between July 2001 and August 2002 she had not taken any action with a view to family reunification. The enquiries that had been made had revealed that she had members of her family living in Kinshasa. Lastly, the second applicant ’ s return to her country of origin had been organised in such a way that a Congolese official representative had been there to accommodate her when her family failed to meet her in Kinshasa. 3. The Court ’ s assessment 90. The Court does not consider it necessary to recapitulate the circumstances in which the deportation took place, as these have already been described above (see paragraphs 66 et seq.). It reiterates that the Belgian State had positive obligations in the instant case, including an obligation to take care of the second applicant and to facilitate the applicants ’ reunification (see paragraph 85 above). By deporting the second applicant, the authorities did not assist their reunification (see paragraph 82 above). Nor did they ensure that the second applicant would in fact be looked after in Kinshasa ( see paragraph 67 above). In these circumstances, the Court considers that the Belgian State failed to comply with its positive obligations and interfered with the applicants ’ right to respect for their family life to a disproportionate degree. 91. There has therefore been a violation of both applicants ’ rights under Article 8 of the Convention as a result of the second applicant ’ s deportation. III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION AS A RESULT OF THE SECOND APPLICANT ’ S DETENTION 92. The applicants also argued that the second applicant ’ s detention violated Article 5 § 1 ( d) of the Convention, which provides : “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; ” A. The applicants ’ submissions 93. In the applicants ’ submission, the second applicant ’ s detention did not serve the purpose set out in paragraph ( d) of Article 5, which was the only provision that permitted the detention of a minor. The sole aim of the detention in the present case had been to prevent the second applicant from entering Belgium and to facilitate her subsequent deportation to her country of origin. The applicants argued in the alternative that were the Court to consider that the word “person” referred to in Article 5 § 1 ( f) of the Convention included minors, the child ’ s age and minority would nevertheless remain an important factor in assessing the lawfulness of the detention. In other words, when a minor was detained, a stricter review would be required, in accordance with the Convention on the Rights of the Child. In such cases, the Government would have to be able to prove that the detention was in the child ’ s interest. In the second applicant ’ s case, there had been no need for the detention. Alternatives had been available such as permitting her to enter the country and stay with foster parents under the supervision of the Aid to Younger People in the French Community Department. Furthermore, the second applicant ’ s deportation could not be regarded as release from detention and so was in breach of the chambre du conseil ’ s order of 16 October 2002. The applicants added that Crown Counsel had, in fact, had only one aim when he decided to defer his appeal against the order for the second applicant ’ s release and that was to facilitate her removal by the Government. They said that proof of this was to be found in the letter from the Aliens Office dated 15 October 2002. It followed that the second applicant ’ s detention subsequent to the order of 16 October 2002 was unlawful, its sole purpose being to allow her deportation before the order for her release became final. B. The Government ’ s submissions 94. The basis for the detention of a foreign minor in Belgian law was to be found in section 74 / 5 of the Law of 15 December 1980, which made no distinction between aliens who had reached their majority and those who were still minors. There could be no one single answer to the question whether the detention of a foreign minor was lawful : the minor ’ s age and the particular difficulties with which the Belgian authorities were confronted were essential criteria for deciding on the best solution for the child. In any event, it would be hazardous to work on the premise that if a child was very young, it could “as it were serve as a safe conduct for third parties”, which was the situation that was in danger of arising if a rule was established prohibiting the detention of minors. The detention of a minor was, furthermore, consistent with the provisions of Article 5 § 1 ( f) of the Convention. As regards more specifically the detention subsequent to the chambre du conseil ’ s order of 16 October 2002, while it was true that that court had ruled that the second applicant ’ s continued detention in Transit Centre no. 127 was unlawful and had ordered her release, Crown Counsel had a right under section 72 of the Law of 15 December 1980 to appeal within twenty-four hours of the date of the decision. It was only on the expiration of that period that the order became final (in accordance with section 73 of the Act) and the alien had to be released. In the present case, the order of 16 October 2002 had not become final until midnight on 17 October 2002 and it was only at that point, once the time - limit for appealing had expired, that the second applicant had to be released. The Government said that it followed from this that the second applicant ’ s continued detention until 17 October 2002 – when she was taken to the airport to be put on the plane to Kinshasa – complied with the provisions of domestic law. The second applicant could not have been released because Crown Counsel had the right to reserve his decision whether or not to appeal. While it would have been possible to find someone to look after the child for twenty-four hours, this would not have been without difficulty. In the Government ’ s submission, it was not possible to say that the Belgian authorities ’ conduct was dictated by the success of the application for release as the flight had been booked a week previously. Lastly, it was quite clear that the detention had ended when the deportation order was executed. C. The Court ’ s assessment 95. The Court notes at the outset that the first applicant has not been detained and accordingly cannot claim personally to have been a victim of a violation of Article 5 of the Convention. 96. In so far as this complaint concerns the second applicant, the Court reiterates that the Contracting States are entitled to control the entry and residence of non-nationals on their territory at their discretion, but stresses that this right must be exercised in conformity with the provisions of the Convention, including Article 5. In proclaiming the right to liberty, paragraph 1 of Article 5 contemplates the physical liberty of the person and its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion ( see, mutatis mutandis, Amuur, cited above, § 42). The list of exceptions to the right to liberty secured in Article 5 § 1 is an exhaustive one and only a narrow interpretation of those exceptions is consistent with the aim of that provision ( see, mutatis mutandis, K. ‑ F. v. Germany, 27 November 1997, § 70, Reports 1997 ‑ VII; Čonka v. Belgium, no. 51564/99, § 42, ECHR 2002-I; and D.G. v. Ireland, no. 39474/98, § 74, ECHR 2002-III). Detention must be lawful both in domestic and Convention terms: the Convention lays down an obligation to comply with the substantive and procedural rules of national law and requires that any deprivation of liberty should be in keeping with the purpose of Article 5 which is to protect an individual from arbitrariness ( see Winterwerp v. the Netherlands, 24 October 1979, §§ 39 and 45, Series A no. 33; Bozano v. France, 18 December 1986, § 54, Series A no. 111; and Weeks v. the United Kingdom, 2 March 1987, § 42, Series A no. 114). 97. In order to ascertain whether a deprivation of liberty has complied with the principle of compatibility with domestic law, the Court must assess not only the legislation in force in the field under consideration, but also the quality of the other legal rules applicable to the persons concerned. Quality in this sense implies that a national law authorising deprivation of liberty must be sufficiently accessible and precise, in order to avoid all risk of arbitrariness. 98. As regards the compatibility of the detention with domestic law in the instant case, the Court considers that two periods can be distinguished, these being the period prior to the order of 16 October 2002 in which the chambre du conseil declared the second applicant ’ s detention unlawful and the period after that date. It observes that the Government have not sought to argue that the chambre du conseil ’ s ruling that the detention was illegal affected the second applicant ’ s victim status. In any event, it notes that the ruling did not bring the detention to an end. In the Court ’ s view, the finding by the domestic court that the first period of detention was unlawful raises serious doubts as to the lawfulness of the second period. 99. The second applicant was placed in detention pursuant to section 74 / 5 of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980, initially pending a decision on her application for asylum and subsequently pending her deportation. At that time, the Act did not contain any provisions specific to minors. Thus, the fact that the alien concerned was a minor was of no relevance to the application of the provisions governing his or her detention. 100. The Court does not agree with the second applicant ’ s submission that paragraph ( d) of Article 5 § 1 of the Convention is the only provision which permits the detention of a minor. It in fact contains a specific, but not exhaustive, example of circumstances in which minors might be detained, namely for the purpose of their educational supervision or for the purpose of bringing them before the competent legal authority to decide. 101. In the instant case, the ground for the second applicant ’ s detention was that she had entered the country illegally as she did not have the necessary documents. Her detention therefore came within paragraph ( f) of Article 5 § 1 of the Convention which permits “the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition”. 102. However, the fact that the second applicant ’ s detention came within paragraph ( f) of Article 5 § 1 does not necessarily mean that it was lawful within the meaning of this provision, as the Court ’ s case - law requires that there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention ( see, mutatis mutandis, Aerts v. Belgium, 30 July 1998, § 46, Reports 1998 ‑ V, with further references ). 103. The Court notes that the second applicant was detained in a closed centre intended for illegal immigrants in the same conditions as adults; these conditions were consequently not adapted to the position of extreme vulnerability in which she found herself as a result of her position as an unaccompanied foreign minor. 104. In these circumstances, the Court considers that the Belgian legal system at the time and as it functioned in this instance did not sufficiently protect the second applicant ’ s right to liberty. 105. There has therefore been a violation of the second applicant ’ s rights under Article 5 § 1 of the Convention. IV. ALLEGED VIOLATION OF ARTICLES 5 § 4 AND 13 OF THE CONVENTION 106. Relying on Articles 5 § 4 and 13 of the Convention, the applicants maintained that the Belgian State had rendered the second applicant ’ s appeal futile and ineffective by proceeding to deport her the day after her release was ordered, in defiance of that order. Article 5 § 4 provides : Article 5 § 4 “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” Article 13 reads as follows : Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The applicants ’ submissions 107. The applicants alleged that prolonging the second applicant ’ s detention and then proceeding to deport her following an order by the chambre du conseil for her immediate release was contrary to the Convention and rendered the remedy ineffective. In their submission, even assuming that detention could be prolonged in order to enable Crown Counsel to appeal against the order within twenty-four hours, detention could only be used for that purpose and not as a means to deport the alien within that period. Furthermore, once the alien had been deported, the powers of review of the chambre du conseil and the indictments division became redundant, even though deportation did not amount to release. They concluded from the above that they had not had an effective remedy in respect of the second applicant ’ s detention. B. The Government ’ s submissions 108. The Government maintained that the right of appeal to the chambre du conseil was an effective remedy within the meaning of the Convention. The chambre du conseil ’ s review concerned both the detention and the deportation order on which it was based. Referring specifically to the detention subsequent to the chambre du conseil ’ s order of 16 October 2002, the Government argued that their observations on the issue of the lawfulness of the second applicant ’ s detention showed that its extension until 17 October 2002 was lawful. The second applicant could not have been released because Crown Counsel had the right to reserve his decision whether or not to appeal. While it would have been possible to find someone to look after the child for twenty-four hours, this would not have been without difficulty. In the Government ’ s submission, it was not possible to say that the Belgian authorities ’ conduct was dictated by the success of the application for release as the flight had been booked a week previously. Lastly, it was quite clear that the detention ended when the deportation order was executed. C. The Court ’ s assessment 109. The Court has already found that since the first applicant was not detained she could not personally claim to have been a victim of a violation of Article 5 of the Convention (see paragraph 95 above). 110. In so far as this complaint is also made by the second applicant, the Court refers firstly to its case-law holding that a complaint under Article 13 will be absorbed by a complaint under Article 5 § 4 since the requirements of Article 13 are less strict than those of Article 5 § 4, which must be regarded as the lex specialis for Article 5 grievances ( see Chahal v. the United Kingdom, 15 November 1996, § 126, Reports 1996-V ). 111. The Court will therefore examine the complaint solely under Article 5 § 4 of the Convention. 112. The purpose of Article 5 § 4 is to assure to persons who are arrested and detained the right to a judicial supervision of the lawfulness of the measure to which they are thereby subjected ( see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 76, Series A no. 12 ). The remedies must be made available during a person ’ s detention with a view to that person obtaining speedy judicial review of the lawfulness of the detention capable of leading, where appropriate, to his or her release ( see, mutatis mutandis, Slivenko v. Latvia [GC], no. 48321/99, § 158, ECHR 2003 ‑ X ). 113. The Court notes that the Belgian authorities made arrangements for the second applicant ’ s deportation on the day after she lodged an application to the chambre du conseil for release, that is to say, even before it had delivered its decision. Furthermore, the authorities did not at any stage reconsider the decision to deport her. The Court also notes that the second applicant was deported on the scheduled date, notwithstanding the fact that the twenty-four-hour period for an appeal by Crown Counsel, during which a stay applied, had not expired. Crown Counsel deliberately chose to reserve his decision after receiving a letter from the Belgian authorities informing him of their view that the second applicant should remain in detention so that she could be deported to Kinshasa. Lastly, the Government have acknowledged that the Belgian authorities ’ conduct was not dictated by the chambre du conseil ’ s decision to grant the application for release as her deportation had been arranged in advance. Even assuming that the second applicant ’ s deportation can be equated to “release” for the purposes of Article 5 § 4 of the Convention, it follows from the foregoing considerations that there was no link between her deportation and the exercise of the remedy or the fact that it was granted. In these circumstances, the Court finds that the second applicant ’ s appeal to the chambre du conseil appears, in the circumstances of the case, to have been ineffective. 114. There has therefore been a violation of Article 5 § 4 of the Convention. The Court does not consider that any separate examination of the complaint under Article 13 of the Convention is necessary. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 115. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 116. The applicants said that they had sustained non-pecuniary damage which they put at 10, 000 euros (EUR) for the first applicant and EUR 25, 000 for the second. 117. The Government observed that the first applicant had only requested family reunification after her daughter ’ s deportation and arrival in Canada (on 29 October 2002) and said that the first applicant ’ s role in the case had not been clearly established. Either she had been unaware that her daughter had left Kinshasa, in which case it had been on her brother ’ s initiative and it was to him and not the Government that she should address her grievances, or she herself had been the instigator, in which case she ought not to be awarded anything because she had knowingly broken the law. In the light of these considerations, the Government submitted that the finding of a violation would afford adequate compensation for the non-pecuniary damage sustained by the first applicant. They left the issue of the non-pecuniary damage sustained by the second applicant to the Court ’ s discretion whilst pointing out that they had sought to defend her interests as best they could in what, to say the least, had been a complex situation. 118. In the light of the various violations it has found, including the violation of both the first and second applicant ’ s rights under Article 3, which, as has been noted, confers absolute protection ( see Soering, cited above, § 88), the Court considers the sums claimed by each of the applicants reasonable and awards them the amounts by way of just satisfaction. B. Costs and expenses 119. The applicants, who have produced detailed fee notes, claimed EUR 14, 177. 04 for costs and expenses. This amount was broken down into EUR 10, 500 for the fees and expenses of Mr Vanheule, EUR 3, 042 for the fees and expenses of Mr Ma., EUR 141 for the fees of a Canadian lawyer, Mr A., in connection with family reunification in Canada in 2002, EUR 35 for the costs of a visa to enable the first applicant to attend the hearing before the Court and EUR 459. 04 in travel expenses. 120. The Government referred to the principles established by the Court and submitted that it should disallow the fees and expenses of Mr A., and at least part of the fees and expenses of Mr Ma. It left the remainder of the claim to the Court ’ s discretion. 121. According to the Court ’ s established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and were also reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found ( see Beyeler v. Italy ( just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002). The Court notes that the Government have not contested Mr Vanheule ’ s fees or the first applicant ’ s claim in respect of the cost of her visa and travel expenses. It considers that the action taken by Mr Ma. was intended to prevent the violation it has found to have occurred and that the amount claimed in respect thereof is reasonable. Consequently, it awards the applicants the sum of EUR 14, 036 for costs and expenses, less the amount which the Council of Europe has granted in legal aid. C. Default interest 122. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 5 § 1 (right to liberty and security) of the Convention in respect of the minor applicant, finding that the Belgian legal system at the time and as it had functioned in the case before it had not sufficiently protected her right to liberty. It noted in particular that the child was detained in a closed centre intended for illegal foreign aliens in the same conditions as adults. Those conditions were not adapted to the position of extreme vulnerability in which she had found herself as a result of her status as an unaccompanied foreign minor. The Court also held that there had been a violation of Article 5 § 4 (right to have lawfulness of detention decided speedily by a court) of the Convention, finding that the child’s successful appeal against detention had been rendered futile. In this respect, it noted in particular that the Belgian authorities had decided on the date of the child’s departure the day after she had lodged her application to the chambre du conseil for release from detention, that is to say even before the chambre du conseil had ruled on it. They had not sought to reconsider the position at any stage. Moreover, the deportation had proceeded despite the fact that the 24 hour-period for an appeal by the public prosecutor had not expired and that a stay applied during that period. |
592 | Case-law of the European Court of Human Rights | II. relevant domestic law A. Appointment to a chartered accountant's post 14. Until 30 April 1993 only members of the Greek Institute of Chartered Accountants could provide chartered accountants' services in Greece. 15. Article 10 of Legislative Decree no. 3329/1955, as amended by Article 5 of Presidential Decree no. 15/1989, provided that a person who did not qualify for appointment to the civil service could not be appointed a chartered accountant. 16. According to Article 22 § 1 of the Civil Servants' Code, no person convicted of a serious crime can be appointed to the civil service. 17. On 30 April 1993 the monopoly of the Institute of Chartered Accountants was abolished. Most chartered accountants became members of the Chartered Auditors' Company Ltd. B. The criminal offence of insubordination 18. Article 70 of the Military Criminal Code in force until 1995 provided: “A member of the armed forces who, having been ordered by his commander to perform a duty, refuses or fails to execute the order shall be punished – (a) if the act is committed in front of the enemy or armed insurgents, with death; (b) in times of war or armed insurgency or during a state of siege or general mobilisation, with death or, if there are extenuating circumstances, with life imprisonment or imprisonment of at least five years and (c) in all other circumstances, with imprisonment between six months and two years.” 19. By virtue of Presidential Decree no. 506/1974, at the time of the applicant's arrest Greece was deemed to be in a state of general mobilisation. This decree is still in force. 20. Article 84 § 2 (a) of the Criminal Code provides that a lesser penalty shall be imposed on persons who, prior to the crime, had led an honest life. 21. Under Article 1 of the Military Criminal Code in force until 1995, offences punishable with a sentence of at least five years' imprisonment were considered to be serious crimes ( kakuryimata ). Offences punishable with a sentence of up to five years' imprisonment were considered misdemeanours ( plimmelimata ). 22. Under the new Military Criminal Code of 1995 insubordination not committed in time of war or in front of the enemy is considered a misdemeanour. C. The right to conscientious objection to military service 23. Under section 2(4) of Law no. 731/1977, those who refused to perform unarmed military service on the basis of their religious beliefs were sentenced to imprisonment of a duration equivalent to that of the unarmed service, that is, less than five years. 24. Law no. 2510/1997, which entered into force on 27 June 1997, gives conscientious objectors the right to perform civilian, instead of military, service. Under section 23(1) and (4) of this law, persons who had been convicted of insubordination in the past were given the possibility of applying for recognition as conscientious objectors. One of the effects of such recognition was having the conviction expunged from one's criminal record. 25. Applications under section 23(1) and (4) of Law no. 2510/1997 had to be lodged within a period of three months starting from 1 January 1998. They were examined by the commission that advises the Minister of National Defence on the recognition of conscientious objectors. The commission had to apply section 18 of Law no. 2510/1997, which provides: “Persons who invoke their religious or ideological beliefs in order not to fulfil their military obligations for reasons of conscience may be recognised as conscientious objectors ...” THE LAW I. SCOPE OF THE CASE 26. In his original application to the Commission the applicant had complained under Articles 9 and 14 of the Convention about the failure of the authorities to appoint him to a post of chartered accountant and under Article 6 § 1 about the proceedings he had instituted in this connection. Only in his observations in reply to the Government's observations on the admissibility and merits of the application did the applicant also complain of a violation of Article 1 of Protocol No. 1. The Commission declared the latter complaint inadmissible on the ground that it had not been submitted within the six-month time-limit provided by the Convention. 27. In his memorial before the Court the applicant contended that the Court was competent to examine his complaint under Article 1 of Protocol No. 1. Although this complaint had not been expressly raised in the application form, the facts underlying it had been set out therein. The Convention organs were free to give them the proper legal qualification. 28. The Court recalls that the scope of its jurisdiction is determined by the Commission's decision declaring the originating application admissible (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 40, ECHR 1999-IV). Moreover, it considers, as the Commission did, that the complaint under Article 1 of Protocol No. 1 was separate from the complaints declared admissible. It follows that the Court has no jurisdiction to entertain this complaint. II. The Government's Preliminary OBJeCtion 29. The Government argued that the applicant, by using the procedure provided by section 23(1) and (4) of Law no. 2510/1997, could have avoided the consequences of his conviction. They also submitted that he could have applied for a pardon under Article 47 § 1 of the Constitution. However, the Government accepted that, even if the applicant had been recognised as a conscientious objector under Law no. 2510/1997, he would not have been able to obtain reparation for the prejudice he had suffered as a result of his conviction. 30. The applicant claimed that he had not been aware of the three-month time-limit in section 23(1) and (4) of Law no. 2510/1997 and had missed the deadline. In any event, the above provisions were “obscure” and only few conscientious objectors had succeeded in having their past convictions expunged from their criminal records. 31. The Court notes that, even if the applicant had not missed the deadline in section 23(1) and (4) of Law no. 2510/1997, his claim that he could not serve in the armed forces because of his religious beliefs would have been examined by a commission, which would have advised the Minister of National Defence on whether or not he should be recognised as a conscientious objector. This commission and the Minister would not have been obliged to grant the applicant's claim since they, at least to a certain degree, retained discretionary powers (see paragraphs 24 and 25 above). Moreover, it was accepted by the parties that, even if the applicant had obtained the removal of his conviction from his criminal record pursuant to section 23(1) and (4) of Law no. 2510/1997, he would not have been able to obtain reparation for the prejudice he had suffered until then as a result of his conviction. For the same reason the applicant could not have been certain that his request for a pardon would have been granted and, even if it had, the applicant could not have obtained reparation. 32. In any event, the Court notes that, in so far as the Government can be deemed to raise a preliminary objection concerning the applicant's status as a victim within the meaning of Article 34 of the Convention, this objection had not been put forward when the admissibility of the application was being considered by the Commission. There was nothing preventing the Government from raising it at that stage of the proceedings, since Law no. 2510/1997 had been enacted prior to the Commission's admissibility decision. The Court therefore holds that the Government is estopped from raising this preliminary objection and dismisses it (see Nikolova v. Bulgaria [GC], no. 31195/96, § 44, ECHR 1999-II). III. ALLEGED VIOLATION oF ARTICLE 14 of the convention taken IN CONJUNCTION WITH ARTICLE 9 33. The Court notes that the applicant did not complain about his initial conviction for insubordination. The applicant complained that the law excluding persons convicted of a serious crime from appointment to a chartered accountant's post did not distinguish between persons convicted as a result of their religious beliefs and persons convicted on other grounds. The applicant invoked Article 14 of the Convention taken in conjunction with Article 9, which provide: Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article 9 “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” A. Arguments before the Court 34. The applicant submitted that his non-appointment to a post of chartered accountant was directly linked to the manifestation of his religious beliefs and fell within the ambit of Article 9 of the Convention. He pointed out in this connection that he had not been appointed because he had refused to serve in the armed forces; by refusing to do so, he had manifested his religious beliefs as a Jehovah's Witness. The applicant further argued that it could not serve any useful purpose to exclude someone from the profession of chartered accountants for having refused to serve in the armed forces on religious grounds. In the applicant's view, the law should not have excluded every person convicted of a serious crime. The legitimacy of the exclusion depended on the nature of the post and of the offence, including the motives of the offender, the time elapsed since the offence and the offender's conduct during that time. Seen in this light, the authorities' failure to appoint the applicant was not necessary. The class of persons to which the applicant belonged, namely male Jehovah's Witnesses whose religion involved compelling reasons for refusing to serve in the armed forces, was different from the class of most other criminal offenders. The Government's failure to take account of this difference amounted to discrimination not tolerated by Article 14 of the Convention taken in conjunction with Article 9. 35. The Government argued that Article 14 of the Convention did not apply because the facts of the case did not fall within the ambit of Article 9. The authorities that refused to appoint the applicant a chartered accountant had no option but to apply a rule that excluded all persons convicted of a serious crime from such a post. The authorities could not inquire into the reasons that had led to a person's conviction. Because of its generality, the law in question was neutral. Moreover, it served the public interest. A person convicted of a serious offence could not be appointed to the civil service and, by extension, to a post of chartered accountant. This prohibition had to be absolute and no distinction could be made on a case-by-case basis. States had a wide margin of appreciation in the characterisation of criminal offences as serious crimes or otherwise. The applicant had committed a serious offence by refusing to perform unarmed military service at a time of general mobilisation because he had tried to avoid a very important obligation towards society and the State, linked with the defence, safety and independence of the country. As a result, the sanction was not disproportionate. 36. The Government also stressed that the Court had no competence to examine the applicant's initial conviction. In any event, this had nothing to do with his religious beliefs. The obligation to do military service applied to all Greek males without any exceptions on grounds of religion or conscience. Moreover, the applicant had been convicted of insubordination. Discipline in the army could not be made to depend on whether a soldier agreed with the orders given to him. 37. In the light of all the above, the Government argued that, even if Article 14 applied, there would exist an objective and reasonable justification for the failure to distinguish between the applicant and other persons convicted of a serious crime. There was no need to point out that Greek Orthodox or Catholic Christians would also be excluded from the profession of chartered accountants if they had committed a serious crime. 38. The Commission considered that Article 14 applied because it was sufficient that the facts of the case fell within the ambit of Article 9, and, in its opinion, there had been an interference with the rights protected by that Article in the present case. The Commission further considered that the right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention was violated not only when States treated differently persons in analogous situations without providing an objective and reasonable justification, but also when States, without an objective and reasonable justification, failed to treat differently persons whose situations were different. In the circumstances of the case, there was no objective and reasonable justification for the failure of the drafters of the rules governing access to the profession of chartered accountants to treat differently persons convicted for refusing to serve in the armed forces on religious grounds from persons convicted of other serious crimes. B. The Court's assessment 39. The Court considers that the applicant's complaint falls to be examined under Article 14 of the Convention taken in conjunction with Article 9 for the following reasons. 40. The Court recalls that Article 14 of the Convention has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols. However, the application of Article 14 does not presuppose a breach of one or more of such provisions and to this extent it is autonomous. For Article 14 to become applicable it suffices that the facts of a case fall within the ambit of another substantive provision of the Convention or its Protocols (see the Inze v. Austria judgment of 28 October 1987, Series A no. 126, p. 17, § 36). 41. The Court notes that the applicant was not appointed a chartered accountant as a result of his past conviction for insubordination consisting in his refusal to wear the military uniform. He was thus treated differently from the other persons who had applied for that post on the ground of his status as a convicted person. The Court considers that such difference of treatment does not generally come within the scope of Article 14 in so far as it relates to access to a particular profession, the right to freedom of profession not being guaranteed by the Convention. 42. However, the applicant does not complain of the distinction that the rules governing access to the profession make between convicted persons and others. His complaint rather concerns the fact that in the application of the relevant law no distinction is made between persons convicted of offences committed exclusively because of their religious beliefs and persons convicted of other offences. In this context the Court notes that the applicant is a member of the Jehovah's Witnesses, a religious group committed to pacifism, and that there is nothing in the file to disprove the applicant's claim that he refused to wear the military uniform only because he considered that his religion prevented him from doing so. In essence, the applicant's argument amounts to saying that he is discriminated against in the exercise of his freedom of religion, as guaranteed by Article 9 of the Convention, in that he was treated like any other person convicted of a serious crime although his own conviction resulted from the very exercise of this freedom. Seen in this perspective, the Court accepts that the “set of facts” complained of by the applicant – his being treated as a person convicted of a serious crime for the purposes of an appointment to a chartered accountant's post despite the fact that the offence for which he had been convicted was prompted by his religious beliefs – “falls within the ambit of a Convention provision”, namely Article 9. 43. In order to reach this conclusion, the Court, as opposed to the Commission, does not find it necessary to examine whether the applicant's initial conviction and the authorities' subsequent refusal to appoint him amounted to interference with his rights under Article 9 § 1. In particular, the Court does not have to address, in the present case, the question whether, notwithstanding the wording of Article 4 § 3 (b), the imposition of such sanctions on conscientious objectors to compulsory military service may in itself infringe the right to freedom of thought, conscience and religion guaranteed by Article 9 § 1. 44. The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification (see the Inze judgment cited above, p. 18, § 41). However, the Court considers that this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different. 45. It follows that Article 14 of the Convention is of relevance to the applicant's complaint and applies in the circumstances of this case in conjunction with Article 9 thereof. 46. The next question to be addressed is whether Article 14 of the Convention has been complied with. According to its case-law, the Court will have to examine whether the failure to treat the applicant differently from other persons convicted of a serious crime pursued a legitimate aim. If it did the Court will have to examine whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see the Inze judgment cited above, ibid.). 47. The Court considers that, as a matter of principle, States have a legitimate interest to exclude some offenders from the profession of chartered accountant. However, the Court also considers that, unlike other convictions for serious criminal offences, a conviction for refusing on religious or philosophical grounds to wear the military uniform cannot imply any dishonesty or moral turpitude likely to undermine the offender's ability to exercise this profession. Excluding the applicant on the ground that he was an unfit person was not, therefore, justified. The Court takes note of the Government's argument that persons who refuse to serve their country must be appropriately punished. However, it also notes that the applicant did serve a prison sentence for his refusal to wear the military uniform. In these circumstances, the Court considers that imposing a further sanction on the applicant was disproportionate. It follows that the applicant's exclusion from the profession of chartered accountants did not pursue a legitimate aim. As a result, the Court finds that there existed no objective and reasonable justification for not treating the applicant differently from other persons convicted of a serious crime. 48. It is true that the authorities had no option under the law but to refuse to appoint the applicant a chartered accountant. However, contrary to what the Government's representative appeared to argue at the hearing, this cannot absolve the respondent State from responsibility under the Convention. The Court has never excluded that legislation may be found to be in direct breach of the Convention (see, inter alia, Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, ECHR 1999-III). In the present case the Court considers that it was the State having enacted the relevant legislation which violated the applicant's right not to be discriminated against in the enjoyment of his right under Article 9 of the Convention. That State did so by failing to introduce appropriate exceptions to the rule barring persons convicted of a serious crime from the profession of chartered accountants. 49. The Court concludes, therefore, that there has been a violation of Article 14 of the Convention taken in conjunction with Article 9. IV. ALLEGED VIOLATION oF ARTICLE 9 OF THE CONVENTION 50. The applicant argued that both his initial conviction for insubordination and the authorities' resultant refusal to appoint him as a chartered accountant constituted interference with his right to manifest his religious beliefs under Article 9 of the Convention. The Commission's case ‑ law to the effect that the Convention did not guarantee the right to conscientious objection to military service had to be reviewed in the light of present-day conditions. Virtually all Contracting States now recognised the right to alternative civilian service. Although the Court was admittedly not competent to examine the interference arising out of the applicant's initial conviction, the applicant submitted that the interference arising out of his non-appointment could not be deemed necessary in a democratic society. 51. The Government argued that the authorities' refusal to appoint the applicant did not constitute an interference with his right under Article 9 of the Convention. In any event, it was necessary in a democratic society. At the time when the applicant refused to serve in the armed forces, Greek law only recognised the possibility of unarmed military service because it was considered that giving everybody the right to alternative civilian service could give rise to abuses. As a result, the sanction imposed on him was not disproportionate and the rule excluding persons convicted of a serious crime from certain positions had to be applied without any distinctions. 52. The Commission did not consider it necessary to address the issue. 53. The Court considers that, since it has found a breach of Article 14 of the Convention taken in conjunction with Article 9 and for the reasons set out in paragraph 43 above, it is not necessary also to consider whether there has been a violation of Article 9 taken on its own. V. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 54. The applicant also complained that the length of the proceedings he instituted before the Supreme Administrative Court to challenge his non ‑ appointment gave rise to a violation of Article 6 § 1 of the Convention, the relevant part of which provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 55. The applicant submitted that Article 6 § 1 of the Convention applied to the Supreme Administrative Court proceedings under examination because they did not concern access to the civil service but to a liberal, albeit tightly regulated, profession. Moreover, he argued that the proceedings were not concluded within a reasonable time. The case did not involve complex legal issues. The issues that were referred to the plenary of the Supreme Administrative Court were not raised by the applicant but by the Supreme Administrative Court 's Chamber itself. In any event, they could not justify a delay of more than seven years. 56. The Government submitted that Article 6 § 1 was not applicable because the refusal to appoint the applicant was an administrative act falling within the sphere of public law. In any event, the case raised serious constitutional issues. Moreover, lawyers were on strike during many months in 1991, 1992, 1993 and 1994. In the light of all the above and the Supreme Administrative Court 's case-load, seven years was a reasonable period. 57. The Commission considered that Article 6 applied because, although chartered accountants were appointed by administrative decision, their occupation was an independent profession. It also considered that complex legal issues were involved. However, the applicant was not responsible for any of the delays. Moreover, there were two periods of inactivity of a total duration of almost three years for which the Government did not offer any explanation apart from the Supreme Administrative Court 's case-load. In the view of the Commission, the proceedings were not reasonable in length. 58. The Court recalls that, although regulated by administrative law, the profession of chartered accountants was one of the liberal professions in Greece. As a result, the proceedings instituted by the applicant to challenge the authorities' failure to appoint him to a post of chartered accountant involved a determination of his civil rights within the meaning of Article 6 § 1 of the Convention (see, among others, the König v. Germany judgment of 28 June 1978, Series A no. 27, p. 32, § 94). 59. The Court notes that the proceedings before the Supreme Administrative Court began on 8 May 1989, when the applicant lodged his application for judicial review, and ended on 28 June 1996, when the Third Chamber of the court rejected it. They lasted, therefore, seven years, one month and twenty days. 60. The Court recalls that the reasonableness of the length of the proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the parties, the conduct of the authorities dealing with the case and what was at stake for the applicant (see Laino v. Italy [GC], no. 33158/96, § 18, ECHR 1999-I). Employment disputes, to which disputes concerning access to a liberal profession can be compared, call generally for expeditious decision (see the Vocaturo v. Italy judgment of 24 May 1991, Series A no. 206 ‑ C, pp. 32-33, § 17). 61. The Court notes that the case involved legal issues of some complexity. However, the applicant did not cause any delays. And there were two periods of inactivity of a total duration of almost three years. The first such period started on 8 May 1989, when the applicant instituted the proceedings, and ended on 18 April 1991, when the Third Chamber first heard the case. The second started on 11 November 1994, when the plenary court referred the case back to the Third Chamber, and ended on 26 October 1995, when the Third Chamber issued the final decision. The only explanation offered by the Government for these periods of inactivity is the Supreme Administrative Court 's case-load. 62. The Court cannot accept this explanation. According to its case-law, it is for Contracting States to organise their legal systems in such a way that their courts can guarantee the right of everyone to obtain a final decision on disputes relating to civil rights and obligations within a reasonable time (see the Vocaturo judgment cited above, ibid.). In the light of all the above and given that the proceedings concerned the applicant's professional future, the Court considers that the length of the proceedings failed to meet the “reasonable time” requirement. 63. The Court concludes, therefore, that there has been a violation of Article 6 § 1 of the Convention. vi. APPLICATION OF aRTICLE 41 OF THE CONVENTION 64. Under Article 41 of the Convention, “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damage 65. The applicant claimed 84,140,000 drachmas (GRD) for pecuniary damage, including approximately GRD 17,000,000 in respect of salaries lost between the authorities' refusal to appoint him and the abolition of the monopoly of the Institute of Chartered Accountants. In support of his claim, the applicant invoked “a survey conducted by the Institute of Chartered Accountants and a private chartered accountants' firm”. 66. The Government submitted that freedom of religion had nothing to do with the above damage. In any event, they pointed out that during the entire period under examination the applicant worked in the private sector and that his claims were not supported by any official documents. 67. The Court notes that, the Government's general remarks about the link between freedom of religion and pecuniary damages notwithstanding, it was not disputed that, if the authorities had not refused to appoint the applicant to a chartered accountant's post, he would have received an income related to this professional activity at least until the abolition of the monopoly of the Institute of Chartered Accountants. However, the Court also notes that the applicant was not unemployed during that period of time. Moreover, the applicant has not shown that the income he would have earned as a chartered accountant would have exceeded the income he had actually earned in private practice during the relevant period of time. The Court, therefore, does not award the applicant any compensation for pecuniary damage. B. Non-pecuniary damage 68. The applicant claimed GRD 15,000,000 for non-pecuniary damage. 69. The Government argued that no causal link was established between the violation of the Convention and the above sum. In any event, the claim was excessive. 70. The Court considers that the applicant must have suffered some non-pecuniary damage as a result of the violation of his right under Article 6 § 1 of the Convention to a hearing within a reasonable time and of his right under Article 14 taken in conjunction with Article 9 to be free from discrimination in the exercise of his freedom of religion. The duration of the proceedings must have caused the applicant prolonged insecurity and anxiety about his eligibility to a professional activity to which he aspired. Moreover, the violation of Article 14 of the Convention taken in conjunction with Article 9 occurred in the making of decisions concerning the applicant's access to a profession, which is a central element for the shaping of one's life plans. Making its assessment on an equitable basis, the Court awards the applicant GRD 6,000,000 for non-pecuniary damage. C. Costs and expenses 71. The applicant claimed GRD 6,250,000 in respect of costs and expenses incurred in the domestic and Convention proceedings. This amount included GRD 250,000 in lawyers' fees for the applicant's representation before the administrative authorities, GRD 1,700,000 in lawyers' fees for the proceedings before the Supreme Administrative Court, GRD 500,000 in lawyers' fees for the proceedings before the Commission, GRD 2,000,000 in lawyers' fees for the proceedings before the Court, GRD 1,300,000 for travel and subsistence expenses in connection with the appearance of the applicant and his lawyer at the hearing before the Court and GRD 500,000 for miscellaneous expenses. 72. The Government argued that the claim should be awarded only to the extent that the costs and expenses were actually and necessarily incurred and were reasonable as to quantum. 73. The Court agrees with the Government as to the test to be applied in order for costs and expenses to be included in an award under Article 41 of the Convention (see, among other authorities, Nikolova cited above, § 79). Moreover, it considers that the applicant's claim is excessive. The Court therefore awards the applicant GRD 3,000,000 under this head. D. Default interest 74. According to the information available to the Court, the statutory rate of interest applicable in Greece at the date of adoption of the present judgment is 6% per annum. | The Court found a violation of Article 14 (prohibition of discrimination) in conjunction with Article 9 of the Convention, holding that the applicant’s exclusion from the profession of chartered accountant was disproportionate to the aim of ensuring appropriate punishment of persons who refuse to serve their country, as he had already served a prison sentence for this offence. |
1,095 | Respect for private life in the employment context | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The right of public access to official documents 39. The principle of public access to official documents ( offenlighetsprincipen ) has a history of more than two hundred years in Sweden and is one of the cornerstones of Swedish democracy. One of its main characteristics is the constitutional right for everyone to study and be informed of the contents of official documents held by the public authorities. This principle allows the public and the media to exercise scrutiny of the State, the municipalities and other parts of the public sector which, in turn, contributes to the free exchange of opinions and ideas and to efficient and correct management of public affairs and, thereby, to maintaining the legitimacy of the democratic system (see Govt. Bill 1975/76:160 pp. 69 et seq.). The principle of public access to official documents is enshrined in Chapter 2, Sections 1 and 12, of the Freedom of the Press Act. Thus, every Swedish citizen is entitled to have free access to official documents, in order to encourage the free exchange of opinion and the availability of comprehensive information (Chapter 2, Section 1; foreign nationals enjoy the same rights in this respect as Swedish citizens, Chapter 14, Section 5). 40. A document is official if it is held by and is regarded as having been received or “drawn up” by a public authority (Chapter 2, Sections 3 and 6-7, of the Freedom of the Press Act). A document is “drawn up” when it is dispatched by an authority. A document that is not dispatched is “drawn up” when the matter to which it relates is finally settled by the authority in question. If the document does not relate to any specific matter, it is “drawn up” when it has been finally checked or has otherwise received its final form. As research is considered to be an activity in its own right (faktiskt handlande) ( see, for example, the Chancellor of Justice, 1986 p. 139), it cannot be said to relate to any specific matter. This means, in turn, that research material, as a rule, is “drawn up” and thereby official, as soon as it has been finally checked or otherwise received its final form. It could be added that preliminary outlines, drafts, and similar documents enumerated in Chapter 2, Section 9, of the Freedom of the Press Act are not deemed to be official unless they introduce new factual information or have been accepted for filing. Finally, there is no general requirement that a document be filed in order to be considered official, and registration does not affect the issue of whether a document is official or not (cf. Chapter 15, Section 1, of the Secrecy Act). 41. An official document to which the public has access shall be made available on request forthwith, or as soon as possible, at the place where it is held, and free of charge, to any person wishing to examine it, in such form that it can be read, listened to, or otherwise comprehended; a document may also be copied, reproduced or used for sound transmission (Chapter 2, Section 12). Such a decision should normally be rendered the same day or, if the public authority in question has to consider whether the requested document is official or whether the information is public, within a few days (see, for example, the Parliamentary Ombudsman’s decision of 23 November 2007 in case no. 5628-2006). A certain delay may also be acceptable if the request concerns very extensive material. If a document cannot be made available without disclosure of such part of it as constitutes classified material, the rest of the document shall be made available to the person requesting access in the form of a transcript or copy (Section 12). A public authority is under no obligation to make a document available at the place where it is held if this presents serious difficulty. B. Restrictions on the right of public access to official documents 42. An unlimited right of public access to official documents could, however, result in unacceptable harm to different public and private interests. It has therefore been considered necessary to provide exceptions. These exceptions are laid down in Chapter 2, Section 2 (first paragraph), of the Freedom of the Press Act, which reads as follows: The right of access to official documents may be restricted only if restriction is necessary having regard to 1. the security of the State or its relations with another State or an international organisation; 2. the central fiscal, monetary or currency policy of the State; 3. the inspection, control or other supervisory activities of a public authority; 4. the interest of preventing or prosecuting crime; 5. the economic interest of the public institutions; 6. the protection of the personal or economic circumstances of private subjects; 7. the preservation of animal or plant species. 43. According to paragraph 2 of the same provision, restrictions on the right of access to official documents shall be scrupulously specified in a provision of a special act of law or, if this is deemed more appropriate in a particular case, in another act of law to which the special act refers (see, for example, Govt. Bill 1975/76:160 pp. 72 et seq. and Govt. Bill 1979/80:2, Part A, pp. 48 et seq.). The special act of law referred to is the Secrecy Act. Pursuant to such a provision, the Government may issue more detailed provisions for its application in an ordinance ( förordning). Since the mandate to restrict the right of public access to official documents lies exclusively with the Swedish Parliament ( Riksdag ), it is not possible for a public authority to enter into an agreement with a third party exempting certain official documents from the right of public access, or to make similar arrangements. 44. The Secrecy Act contains provisions regarding the duty to observe secrecy in the activities of the community and regarding prohibitions against making official documents available (Chapter 1, Section 1). The latter provisions limit the right of access to official documents provided for in the Freedom of the Press Act ( Tryckfrihetsförordningen, SFS 1949:105). They relate to prohibitions on disclosing information, irrespective of the manner of disclosure. The question of whether secrecy should apply to information contained in an official document cannot be determined in advance, but must be examined each time a request for access to a document is made. Decisive for this issue is whether making a document available could imply a certain risk of harm. The risk of harm is defined in different ways in the Secrecy Act, having regard to the interests that the secrecy is intended to protect. Thus, the secrecy may be more or less strict depending on the interests involved. The secrecy legislation has been elaborated in this way in order to provide sufficient protection, for example, for the personal integrity of individuals, without the constitutional right of public access to official documents being circumscribed more than is considered necessary. In the present case, the Administrative Court of Appeal, in its judgments of 6 February 2003, found that secrecy applied to the research material under Chapter 7, Sections 1, 4, 9 and 13, of the Secrecy Act (Chapter 7 deals with secrecy with regard to the protection of the personal circumstances of individuals). 45. If a public authority deems that such a risk of loss, harm, or other inconvenience which, pursuant to a provision on secrecy, constitutes an obstacle to information being communicated to a private subject, can be removed by imposing a restriction limiting the private subject’s right to re-communicate or use the information, the authority shall impose such a restriction when the information is communicated (Chapter 14, Section 9, of the Secrecy Act). As an example of such a restriction, the preparatory notes mention prohibiting the dissemination of the content of a document or the publication of secret information contained in a document (see Govt. Bill 1979/80:2, Part A, p. 349). An individual who has been granted access to a document subject to a restriction limiting the right to use the information may be held criminally liable if he or she does not respect that restriction (see Chapter 20, Section 3, of the Penal Code). C. Procedure concerning requests for public access to official documents 46. A request to examine an official document must be made to the public authority which holds the document (Chapter 2, Section 14, of the Freedom of the Press Act and Chapter 15, Section 6, of the Secrecy Act). As mentioned above, there are specific requirements of promptness regarding the handling of such requests. A decision by an authority other than the Swedish Parliament or the Government to refuse access to a document is subject to appeal to the courts – as a general rule, an administrative court of appeal – and, further, to the Supreme Administrative Court (Chapter 2, Section 15, of the Freedom of the Press Act; Chapter 15, Section 7, of the Secrecy Act and Sections 33 and 35 of the 1971 Administrative Court Procedure Act ( Förvaltningsprocesslagen; SFS 1971:291)). Leave to appeal is required in the last-mentioned court. Only the person seeking access has a right of appeal. Thus, if the Administrative Court of Appeal – contrary to the public authority holding the document in question – decides that a document must be made available, its judgment is not open to appeal by the public authority in question, or by private subjects who consider that harm would be inflicted on them as a consequence of access to the document being granted (see RÅ 2005 note 1 and RÅ 2005 ref. 88). The reason why the right of appeal has been narrowly limited is that once the competing interests have been considered by a court the legislator has given priority to the principle of public access to official documents over other private and public interests (see, for example, Govt. Bill 1975/76:160 p. 203 and RÅ 2003 ref. 18, which concerned an institution’s request for relief for substantive defects). D. Responsibility of public officials and criminal provisions 47. The principle of public access to official documents is applicable to all activities within the public sector and every public official is obliged to be acquainted with the laws and regulations in this area. This is in particular the case where a certain official – following a special decision or otherwise – has the duty to examine requests for access to official documents (Chapter 15, Section 6, second paragraph of the Secrecy Act). Formally, the head of the public authority has the primary responsibility to ensure that such requests are duly examined. However, the task may be delegated to other office holders within the authority and this is what is usually done in practice for the purposes of the authority’s daily activities. Such delegation has to be in accordance with the regulations of the authority (Section 21 of the former Government Agencies and Institutes Ordinance, Verksförordningen SFS 1995:1322, applicable at the relevant time). Irrespective of a public official’s particular competence or power under the regulations of the authority in question, he or she has a general duty to perform the tasks that are part of his or her official duties. As previously mentioned, this duty involves the obligation to assist in making official documents available forthwith, or as soon as possible, to persons who are considered to have the right of access to them under the legislation described above. 48. By virtue of Chapter 20, Article 1, of the Penal Code a person who, in the exercise of public authority, by act or by omission, intentionally or through carelessness, disregards the duties of his office, will be sentenced for misuse of office ( tjänstefel). The provision reads as follows: Chapter 20, Article 1: “A person who, in the exercise of public authority, by act or by omission, intentionally or through carelessness, disregards the duties of his office, shall be sentenced for misuse of office to a fine or a maximum term of imprisonment of two years. If, having regard to the perpetrator’s official powers or the nature of his office considered in relation to his exercise of public power in other respects or having regard to other circumstances, the act may be regarded as petty, punishment shall not be imposed. If an offence mentioned in the first paragraph has been committed intentionally and is regarded as serious, the perpetrator shall be sentenced for gross misuse of office to a term of imprisonment of at least six months and at most six years. In assessing whether the crime is serious, special attention shall be given to whether the offender seriously abused his position or whether the crime occasioned serious harm to an individual or the public sector or gave rise to a substantial improper benefit. A member of a national or municipal decision-making assembly shall not be held responsible under the provisions of the first or second paragraphs of this Article for any action taken in that capacity. Nor shall the provisions of the first and second paragraphs of this Article apply if the crime is punishable under this or some other Law.” 49. A suspended sentence may be imposed by the courts for an offence for which a fine is considered an inadequate penalty, and such a sentence is, as a general rule, combined with day-fines. A maximum total of 200 day-fines may be imposed. When determining the amount, account is taken of the economic circumstances of the accused, but a day ‑ fine may not exceed 1,000 Swedish kronor (SEK) (Chapter 25, Section 2, Chapter 27, Sections 1 and 2, and Chapter 30, Section 8 of the Penal Code). 50. In Sweden a suspended sentence does not refer to any specific number of days of imprisonment. Under Chapter 27 of the Penal Code a suspended sentence is always subject to a probationary period of two years. A suspended sentence may be linked to specific conditions. If the person convicted commits a new crime during the probationary period the courts may, having due regard to the nature of the new crime, revoke the suspended sentence and impose a joint sanction for the crimes (Chapter 34 of the Penal Code). E. The Parliamentary Ombudsmen 51. The functions and powers of the four Parliamentary Ombudsmen are laid down in particular in Chapter 12, Section 6 of the Instrument of Government ( Regeringsformen ) and in the Act with Instructions for the Parliamentary Ombudsmen ( Lagen med instruktion för Riksdagens ombudsmän; SF5 1986:765). Their main task is to supervise the application of laws and other regulations in the public administration. It is their particular duty to ensure that public authorities and their staff comply with the laws and other statutes governing their actions. An Ombudsman exercises supervision, either on complaint from individuals or of his or her own motion, by carrying out inspections and other investigations which he or she deems necessary. The examination of a matter is concluded by a decision in which the Ombudsman states his or her opinion whether the measure taken by the authority contravenes the law or is otherwise wrongful or inappropriate. The Ombudsmen may also make pronouncements aimed at promoting uniform and proper application of the law. An Ombudsman’s decisions are considered to be expressions of his or her personal opinion. They are not legally binding upon the authorities. However, they do have persuasive force, command respect and are usually followed in practice. An Ombudsman may, among many other things, institute criminal proceedings against an official who has committed an offence by departing from the obligations incumbent on him or her in his or her official duties (for example, as in the present case, misuse of office). The Ombudsman may also report an official to the competent authority for disciplinary measures. The Ombudsman may attend deliberations of the courts and the administrative authorities and is entitled to have access to their minutes and other documents. THE LAW I. THE SCOPE OF THE CASE BEFORE THE GRAND CHAMBER 53. From the outset, the Grand Chamber reiterates that the content and scope of the “case” referred to it are delimited by the Chamber’s decision on admissibility (see, inter alia, K. and T. v. Finland [GC], no. 25702/94, §§ 140-141, ECHR 2001-VII; Göç v. Turkey [GC], no. 36590/97, §§ 35-37, ECHR 2002-V; Perna v. Italy [GC], no. 48898/99, §§ 23-24, ECHR 2003-V; and D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 109, ECHR-2007-IV). Thus the Grand Chamber may only examine the case in so far as it has been declared admissible; it cannot examine those parts of the application which have been declared inadmissible. Therefore, if an applicant before the Grand Chamber raises a complaint which has been declared inadmissible by the Chamber, this complaint will be declared outside the scope of the case before the Grand Chamber (see, inter alia, Sisojeva and Others v. Latvia [GC], no. 60654/00, §§ 61-62, ECHR 2007-I). 54. Furthermore, under Article 35 § 4 of the Convention the Grand Chamber may dismiss applications it considers inadmissible “at any stage of the proceedings”. Thus, even at the merits stage the Court may reconsider a decision to declare an application admissible if it concludes that it should have been declared inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Convention (see, inter alia, Azinas v. Cyprus [GC], no. 56679/00, § 32, ECHR 2004-III). 55. In these circumstances the Grand Chamber has jurisdiction to examine only the merits of the case as declared admissible by the Chamber in its judgment of 2 November 2010. This means, in particular, that the applicant’s complaints concerning the outcome of the civil proceedings before the administrative courts cannot be examined as they were declared inadmissible as being lodged out of time. 56. In conclusion, the Grand Chamber has jurisdiction to examine only whether the criminal conviction of the applicant for misuse of office infringed his rights under Articles 8 and 10 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION The Government’s preliminary objection 1. The Government’s submissions 57. By way of a preliminary objection, the Government contended that the applicant’s complaint fell outside the scope of Article 8 of the Convention and should therefore be declared incompatible with the Convention ratione materiae. 58. More specifically, they contested that a criminal conviction could constitute an interference with the right to respect for private life under Article 8, unless there were special circumstances in a particular case calling for a different conclusion (see, for example, Laskey, Jaggard and Brown v. the United Kingdom, 19 February 1997, Reports of Judgments and Decisions 1997 ‑ I). 59. Furthermore, recalling that the applicant was convicted of a crime related to his professional duties as a public official, the Government contended that the applicant had failed to show how such a conviction had affected his “private life” or any other aspects of Article 8, in order for his complaint to fall within the ambit of the said Article. 2. The applicant’s submissions 60. The applicant first claimed that he had a right under Article 8 of the Convention not to impart confidential information and that this right had been breached by his criminal conviction. 61. He also contended that his moral integrity, his reputation and his honour had been affected by the conviction to a degree falling within the scope of Article 8, and that he had suffered personally, socially, psychologically and economically. On this last point, he had lost income because he had been dismissed by the Norwegian Institute of Public Health and because he could have written at least five books during the time that had been taken up by the case. 62. The applicant submitted that the national authorities had put him in the impossible dilemma of having either to breach his promise of secrecy to the participants in the study by complying with the Administrative Court of Appeal’s judgments, which in his opinion was wrong, or to refuse to comply with the said judgments and run the risk of being convicted for misuse of office. He chose to keep his promise of secrecy and received massive support for that decision from numerous renowned and highly respected scientists. 3. The Chamber’s decision 63. In its judgment of 2 November 2010 the Chamber left open whether the applicant’s complaint fell within the scope of Article 8 and whether there had been an interference with his right to respect for his “private life”, because even assuming that there had been an interference, it found that there had been no violation of the provision concerned. 4. The Grand Chamber’s assessment 64. The Court recalls that the applicant was a public official researcher exercising public authority at a public institution, namely the University of Gothenburg. He was not the children’s doctor or psychiatrist and he did not represent the children or the parents. In their judgment convicting the applicant, the criminal courts found him guilty of misuse of office from 14 August 2003 to 7 May 2004 because he had refused to make the research material belonging to the University of Gothenburg available in compliance with the final judgments of the Administrative Court of Appeal. The criminal courts did not, however, decide on whether K and E should have had access to the research material before it was destroyed in May 2004, because that question had already been determined by the Administrative Court of Appeal in its judgments of 6 February and 11 August 2003. Whether or not the latter judgments breached a right under Article 8 of the Convention not to impart confidential information, as the applicant claims, falls outside the scope of the Grand Chamber’s jurisdiction (see paragraphs 53-56 above). 65. It therefore remains to be examined whether the applicant’s criminal conviction for misuse of office, on account of having disregarded his duties as a public official, amounted to an interference with his “private life” within the meaning of Article 8 of the Convention. 66. The concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. It can therefore embrace multiple aspects of the person’s physical and social identity. Article 8 protects in addition a right to personal development, and the right to establish and develop relationships with other human beings and the outside world (see, for example, S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008). 67. The applicant maintained that the criminal conviction in itself affected the enjoyment of his “private life” by prejudicing his honour and reputation. The Court reiterates in this regard that Article 8 cannot be relied on in order to complain of a loss of reputation which is the foreseeable consequence of one’s own actions such as, for example, the commission of a criminal offence (see, inter alia, Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 49, ECHR 2004 ‑ VIII, and Mikolajová v. Slovakia, no. 4479/03, § 57, 18 January 2011). 68. The applicant also contended that the criminal conviction had adversely affected his moral and psychological integrity and that he had suffered personally, socially, psychologically and economically. The Court observes that the protection of an individual’s moral and psychological integrity is an important aspect of Article 8 of the Convention. It notes, however, that there is no Convention case-law in which the Court has accepted that a criminal conviction in itself constitutes an interference with the convict’s right to respect for private life. The Court does not ignore that such a criminal conviction may entail personal, social, psychological and economic suffering for the convicted person. In the Court’s view, though, such repercussions may be foreseeable consequences of the commission of a criminal offence and can therefore not be relied on in order to complain that a criminal conviction in itself amounts to an interference with the right to respect for “private life” within the meaning of Article 8 of the Convention. 69. The Court is aware that Article 8 of the Convention was found applicable to convictions in Laskey, Jaggard and Brown (cited above). Nevertheless, in that case the applicants complained that their convictions were the result of an unforeseeable application of a provision of the criminal law to their consensual sado-masochistic activities between adults. The Court expressed doubt as to whether those activities fell entirely within the notion of “private life” in the particular circumstances of that case, but saw no reason to examine the issue of its own motion since that point was not disputed by the parties ( Laskey, Jaggard and Brown, § 36). 70. In the present case, the applicant was convicted of misuse of office in his capacity as a public official, pursuant to Chapter 20, Article 1 of the Penal Code ( Brottsbalken). His conviction was not the result of an unforeseeable application of that provision and the offence in question has no obvious bearing on the right to respect for “private life”. On the contrary, it concerns professional acts and omissions by public officials in the exercise of their duties. Nor has the applicant pointed to any concrete repercussions on his private life which were directly and causally linked to his conviction for that specific offence. 71. Moreover, the applicant has not further defined or elaborated on the nature and extent of his suffering connected to the criminal conviction. He did point out, though, that he had found himself in a dilemma and that he had chosen to refuse to comply with the judgments of the Administrative Court of Appeal, with the risk that he would be convicted of misuse of office. This confirms, in the Court’s opinion, that the applicant’s conviction and the suffering it may have entailed were foreseeable consequences of his having committed the criminal offence. 72. The applicant also contended that he had lost income because he was dismissed by the Norwegian Institute of Public Health and could have written at least five books during the time taken up by the case. To the extent that this is to be understood as a claim that the applicant’s conviction affected the enjoyment of his “private life” because of its bearing on his professional activities (see, among other authorities, Turán v. Hungary, no. 33068/05, 6 July 2010; Sidabras and Džiautas (cited above); Halford v. the United Kingdom, 25 June 1997, Reports 1997 ‑ III; and Niemietz v. Germany, 16 December 1992, Series A no. 251 ‑ B), the Court considers this form of economic suffering to be a foreseeable consequence of the commission of a criminal offence by the applicant in respect of which Article 8 cannot be relied on (see paragraph 68 above). 73. At any rate, the Court observes that the criminal conviction of the applicant had no negative bearing on his maintaining his position as professor and head of the Department of Child and Adolescent Psychiatry at the University of Gothenburg. Furthermore, even if the applicant’s allegation that he was dismissed by the Norwegian Institute of Public Health is an established fact, the Court notes that the applicant failed to show that there was any causal link between the conviction and the dismissal. Moreover, the applicant’s claim that he had lost income from at least five books which he had planned to write, but had been unable to because his time was taken up by the case, remains wholly unsubstantiated. Finally, according to the applicant, he had support from numerous renowned and highly respected scientists who agreed with the conduct for which he was convicted. There is therefore no indication that the impugned conviction had any repercussions on the applicant’s professional activities which went beyond the foreseeable consequences of the criminal offence for which he was convicted. 74. In conclusion, the Court finds, in light of the facts of the present case, that the applicant’s rights under Article 8 of the Convention have not been affected. Accordingly, this provision does not apply in the instant case and the Government’s preliminary objection must be upheld. III. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION The Government’s preliminary objection 1. The Government’s submissions 75. By way of a preliminary objection, the Government contended that the applicant’s complaint fell outside the scope of Article 10 and therefore should be declared incompatible with the Convention ratione materiae. 76. They disputed that a right to negative freedom of expression could apply in the context of a criminal conviction of a public official for failure as an employee to assist in disclosing official documents as ordered by a court of law. 77. The Government noted in this regard that there was no case-law supporting the view that the right to receive information set out in Article 10 should be interpreted as including a general right of access to case files and other documents held by public authorities, especially if these were not of a general character. Thus, it was difficult to conclude that its negative counterpart, namely the right to refuse access to official documents, could be considered to enjoy the protection of Article 10. 78. Nor did the Government find that the applicant’s situation could be compared to that of journalists protecting their sources or that of lawyers protecting the interest of their clients (see, for example, Goodwin v. the United Kingdom, 27 March 1996, Reports 1996 ‑ II, and Niemietz, cited above). 2. The applicant’s submissions 79. In the applicant’s view, he had a negative right within the meaning of Article 10 of the Convention not to impart the disputed research material. 80. He pointed out that he had given a promise of confidentiality to the participants in the research and had attempted to protect their integrity, in spite of being ordered by a court to reveal the confidential data. For that he had been convicted and punished, a situation very similar to that in the Goodwin case (cited above). He also found that his situation could be compared to the duty of confidentiality by which lawyers were bound. 3. The Chamber’s decision 81. In its judgment of 2 November 2010 the Chamber left open whether the applicant’s complaint fell within the scope of Article 10 and whether there had been an interference with his right to freedom of expression, because even assuming that there had been an interference, it found that there had been no violation of the invoked provision. 4. The Grand Chamber’s assessment 82. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly. Moreover, Article 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed (see among other authorities, Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 53, 12 September 2011). 83. The right to receive and impart information explicitly forms part of the right to freedom of expression under Article 10. That right basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him (see, for example, Leander v. Sweden, 26 March 1987, § 74, Series A no. 116, and Gaskin v. the United Kingdom, 7 July 1989, § 52, Series A no. 160). 84. In the present case the applicant was not prevented from receiving and imparting information or in any other way prevented from exercising his “positive” right to freedom of expression. He argued that he had a “negative” right within the meaning of Article 10 to refuse to make the disputed research material available, and that consequently his conviction was in violation of Article 10 of the Convention. 85. The Court observes that case-law on the “negative” right protected under Article 10 is scarce. Referring to K. v. Austria (16002/90, Commission Report of 13 October 1992, § 45), the former Commission stated in Strohal v. Austria (no. 20871/92, Commission decision of 7 April 1994) that “the right to freedom of expression by implication also guarantees a “negative right” not to be compelled to express oneself, that is, to remain silent”. Article 10 was also invoked in Ezelin v. France (judgment of 26 April 1991, Series A no. 202, § 33) where the Court stated that a refusal to give evidence was an issue “which in itself does not come within the ambit of Articles 10 and 11 ...”. 86. The Court does not rule out that a negative right to freedom of expression is protected under Article 10 of the Convention, but finds that this issue should be properly addressed in the circumstances of a given case. 87. It notes that in the present case it was the Department of Child and Adolescent Psychiatry of the University of Gothenburg which carried out the research from 1977 to 1992. The project was originally set up and started by other researchers, but the applicant subsequently took over responsibility for completing the study. The material belonged to the University and was stored at the Department of Child and Adolescent Psychiatry of which the applicant was head. Accordingly, the material consisted of public documents subject to the principle of public access under the Freedom of the Press Act and the Secrecy Act. That entailed, among other things, that secrecy could not be determined until a request for access was submitted, and it was impossible in advance for a public authority to enter into an agreement with a third party exempting certain official documents from the right to public access (see paragraphs 43 and 44). Nevertheless, in his letter of 17 February 1984 to the parents of the children participating in the research project, the applicant stated, inter alia: “All data will be dealt with in confidentiality and classified as secret. No data processing that enables the identification of your child will take place. No information has been provided previously or will be provided to teachers about your child except that when starting school she/he took part in a study undertaken by Östra Hospital, and its present results will, as was the case for the previous study three years ago, be followed up.” In a later, undated, letter to the participants, the applicant submitted: “Participation is of course completely voluntary and as on previous occasions you will never be registered in public data records of any kind and the data will be processed in such a way that nobody apart from those of us who met you and have direct contact with you will be able to find out anything at all about you.” 88. In its judgment of 8 February 2006 convicting the applicant, the Court of Appeal held that “[these] assurances of confidentiality given to the participants in the study go further, at least in some respects, than the Secrecy Act permits” and that “there is no possibility in law to provide greater secrecy than follows from the Secrecy Act or to make decisions on issues concerning confidentiality until the release of a document is requested. It follows therefore that the assurances of confidentiality cited above did not take precedence over the law as it stood or a court’s application of the statutes”. Equally important, in the period referred to in the indictment, namely from 11 August 2003 to 7 May 2004, it was no longer the secrecy legislation that was to be interpreted by the criminal courts but rather the judgments of the Administrative Court of Appeal, which had settled once and for all the question of whether and on what conditions the documents were to be released to K and E. 89. The Court of Appeal also found that the nature of the international declarations agreed on by the World Medical Association was not such that they took precedence over Swedish law. In this regard it is noteworthy that the applicant in the present case was not mandated by the participants in the research and that, as a consequence, he was not bound by professional secrecy as if he were their doctor or psychiatrist, or by virtue of the Helsinki Declaration adopted by the World Medical Association’s General Assembly. 90. Moreover, the national courts dismissed the applicant’s allegation that his assurances of confidentiality to the participants had been a requirement of the Ethics Committee of the University of Gothenburg for approving the research project. Nor has the applicant submitted any convincing evidence to that effect before this Court. 91. Accordingly, the applicant was not prevented from complying with the judgments of the Administrative Court of Appeal by any statutory duty of secrecy or any order from his public employer. Rather, his refusal to make the research material available was motivated by his personal belief that for various reasons the outcome of the judgments of the Administrative Court of Appeal was wrong. 92. Taking these circumstances into account, the Court considers that the crucial question can be narrowed down to whether the applicant, as a public employee, had an independent negative right within the meaning of Article 10 of the Convention not to make the research material available, although the material did not belong to him but to his public employer, the University of Gothenburg, and despite the fact that his public employer – the university – actually intended to comply with the final judgments of the Administrative Court of Appeal granting K and E access to its research material on various conditions, but was prevented from so doing because the applicant refused to make it available. 93. In the Court’s view, finding that the applicant had such a right under Article 10 of the Convention would run counter to the property rights of the University of Gothenburg. It would also impinge on K’s and E’s rights under Article 10, as granted by the Administrative Court of Appeal, to receive information in the form of access to the public documents concerned, and on their rights under Article 6 to have the final judgments of the Administrative Court of Appeal implemented (see, mutatis mutandis, Loiseau v. France (dec.) no. 46809/99, ECHR 2003-XII, extracts; Burdov v. Russia, no. 59498/00, § 34, ECHR 2002-III; and Hornsby v. Greece, judgment of 19 March 1997, § 40, Reports 1997-II). 94. Accordingly, the Court cannot endorse the applicant’s view that he had a “negative” right within the meaning of Article 10 to refuse to make the research material belonging to his public employer available, thereby denying K and E their right to access to it as determined by the Administrative Court of Appeal. 95. It appears that the applicant also maintained that his complaint fell within the ambit of Article 10 of the Convention because his situation was similar to that of journalists protecting their sources. The Court notes, however, that the pertinent case ‑ law on this subject concerns journalists’ positive right to freedom of expression (see, inter alia, Goodwin (cited above); Fressoz and Roire v. France [GC], no. 29183/95, ECHR 1999 ‑ I; and Roemen and Schmit v. Luxembourg, application no. 51772/99, ECHR 2003-IV). Moreover, the information diffused by a journalist based on his or her source generally belongs to the journalist or the media, whereas in the present case the research material was considered to belong to the University of Gothenburg, and thus to be in the public domain. The disputed research material was therefore subject to the principle of public access to official documents under the Freedom of the Press Act and the Secrecy Act, which specifically allowed for the public, and the media, to exercise control over the State, the municipalities and other parts of the public sector, and which in turn contributed to the free exchange of opinions and ideas and to the efficient and correct administration of public affairs. By contrast, the applicant’s refusal in the present case to comply with the judgments of the Administrative Court of Appeal, by denying K and E access to the research material, hindered the free exchange of opinions and ideas on the research in question, notably on the evidence and methods used by the researchers in reaching their conclusions, which constituted the main subject of K’s and E’s interest. In these circumstances the Court finds that the applicant’s situation cannot be compared to that of journalists protecting their sources. 96. Finally, in so far as the applicant contended that his complaint fell within the scope of Article 10 of the Convention because his situation was comparable to that of lawyers protecting information obtained in confidence from their clients, the Court reiterates that the relevant case-law thereon, including access to correspondence with legal advisers, concerns Article 8 of the Convention (see, for example, Niemietz, cited above, and Foxley v. The United Kingdom, no. 33274/96, 20 June 2000). In any event, referring to its finding above (paragraph 89), the Court notes that since the applicant had not been mandated by the research participants as their doctor, he had no duty of professional secrecy towards them. Moreover, the applicant was never asked to give evidence and there are no elements indicating that, had he complied with the Administrative Court of Appeal’s judgments, there would have been repercussions on other proceedings as may be the case when a lawyer’s professional secrecy has been disregarded (see Niemietz, § 37 and Foxley, § 50, both cited above). In these circumstances the Court finds that the applicant’s situation cannot be compared to that of a lawyer bound by a duty of professional secrecy vis-à-vis his clients. 97. In conclusion, the Court finds, in light of the facts of the present case, that the applicant’s rights under Article 10 of the Convention have not been affected. Accordingly, this provision does not apply in the instant case and the Government’s preliminary objection must be upheld. | The Court concluded that Article 8 (right to respect for private and family life) and Article 10 (freedom of expression) of the Convention did not apply in this case. It held in particular that the applicant could not rely on Article 8 to complain about his criminal conviction and that he could not rely on a “negative” right to freedom of expression, the right not to give information, under Article 10. |
853 | Interception of communications, phone tapping and secret surveillance | II. RELEVANT DOMESTIC LAW A. The Federal Constitution 31. The relevant provisions of the Federal Constitution in force at the material time were worded as follows: Article 102 “The powers and duties of the Federal Council, as referred to in the present Constitution, are the following, among others: ... 9. It shall ensure that Switzerland’s external security is protected and its independence and neutrality maintained; 10. It shall ensure that the Confederation’s internal security is protected and that peace and order are maintained; ...” B. The Federal Council’s Decree of 29 April 1958 on the Police Service of the Federal Public Prosecutor’s Office 32. The relevant provisions of the Federal Council’s Decree of 29 April 1958 on the Police Service of the Federal Public Prosecutor’s Office are worded as follows: Article 1 “The Police Service of the Federal Public Prosecutor’s Office (Federal Police) shall provide an investigation and information service in the interests of the Confederation’s internal and external security. That service shall comprise: 1. The surveillance and prevention of acts liable to endanger the Confederation’s internal or external security ( police politique ); 2. Police investigations in the prosecution of offences against the internal or external security of the Confederation ( police judiciaire ).” C. The Federal Criminal Procedure Act 33. The relevant provisions of the Federal Criminal Procedure Act in force at the material time were worded as follows: Section 17 “… 3. The Federal Public Prosecutor’s Office shall be provided with the personnel necessary to enable it to run a uniform investigation and information service in the interests of the Confederation’s internal and external security. The Public Prosecutor’s Office shall, as a general rule, act in concert with the relevant police authorities of the cantons. It shall in each case inform those police authorities of the results of its investigations as soon as the aim of and stage reached in the proceedings make it possible to do so.” Section 66 “1. The investigating judge may order monitoring of the accused’s or suspect’s postal correspondence and telephone and telegraphic telecommunications if (a) the criminal proceedings concern a crime or major offence whose seriousness or particular nature justifies intervention or a punishable offence committed by means of the telephone; and if (b) specific facts cause the person who is to be monitored to be suspected of being a principal or accessory in the commission of the offence; and if (c) without interception, the necessary investigations would be significantly more difficult to conduct or if other investigative measures have produced no results. 1 bis. Where the conditions justifying the monitoring of the accused or suspect are satisfied, third parties may also be monitored if specific facts give rise to the presumption that they are receiving or imparting information intended for the accused or suspect or sent by him ... The telephone connection of third parties may be monitored at any time if there are reasons to suspect that it is being used by the accused. 1 ter. Recordings which are not needed for the conduct of an investigation shall be kept in a separate place, under lock and key, and shall be destroyed at the end of the proceedings.” Section 66 bis “1. Within twenty-four hours of his decision, the investigating judge shall submit a copy of it, accompanied by the file and a brief statement of his reasons, for approval by the President of the Indictment Division. 2. The decision shall remain in force for not more than six months; the investigating judge may extend its validity for one or more further periods of six months. The order extending its validity, accompanied by the file and the statement of reasons, must be submitted, not later than ten days before expiry of the time-limit, for approval by the President of the Indictment Division. 3. The investigating judge shall discontinue the monitoring as soon as it becomes unnecessary, or immediately if his decision is rescinded.” Section 66 ter “1. The President of the Indictment Division shall scrutinise the decision in the light of the statement of reasons and the file. Where he finds that there has been a breach of federal law, including any abuse of a discretionary power, he shall rescind the decision. 2. He may authorise monitoring provisionally; in that case, he shall lay down a time-limit within which the investigating judge must justify the measure, either by adding any relevant material to the file or orally.” Section 66 quater “1. The procedure shall be kept secret even from the person concerned. The President of the Indictment Division shall give brief reasons for his decision and notify the investigating judge thereof within five days of the date when the monitoring began or, where the period of validity has been extended, before the further period begins. 2. The President of the Indictment Division shall ensure that the interception measures are discontinued on expiry of the time-limit.” Section 72 “1. Before the opening of a preliminary investigation the Principal Public Prosecutor may order interception of postal correspondence and telephone and telegraphic communications and prescribe the use of technical appliances... 2. He may also order those measures in order to prevent the commission of a punishable offence justifying such intervention where particular circumstances give rise to the presumption that such an offence is being prepared. 3. Sections 66 to 66 quater shall be applicable by analogy.” D. Legislation on the processing and consultation of the Confederation’s documents 34. The relevant provisions of the Federal Council’s Directives of 16 March 1981 applicable to the Processing of Personal Data in the Federal Administration are worded as follows: 4 General principles 41 Principles governing data processing “411. There must be a legal basis for the processing of personal data. 412. Personal data may be processed only for very specific purposes. The data and technique used to process them must be appropriate and necessary to the performance of the task to be carried out. 413. Inaccurate or incomplete data must be rectified having regard to the purpose of the processing. 414. Data which are of no foreseeable further use or which have evidently been processed illegally must be destroyed. The obligation to store them in the Federal Archives is reserved. ...” 43 Information “431. As regards personal data files the federal offices and other administrative units having the same status must take the necessary measures to ensure that they can supply information on the legal basis and aim of the files, the nature of the processed data and the lawful recipients thereof to anyone requesting the same. 432. On request, they must indicate in a comprehensible manner to anyone who has disclosed his identity whether – and which – data on him from a particular file have been processed. ...” 44 Rectification or destruction following a request “If it emerges, on a request, that the data on the person making the request are inaccurate or incomplete, or inappropriate to the purpose for which they have been recorded, or that processing is illegal for another reason, the organ in question must rectify or destroy such data immediately, and at the latest when the file is next accessed.” 35. The relevant provisions of the Federal Council’s Order of 5 March 1990 on the Processing of Federal National Security Documents are worded as follows: Article 1 “1. The present Order shall guarantee that persons in respect of whom the federal police possess documents compiled on grounds of national security can defend their personality rights without hindering the performance of national security tasks. 2. Federal documents compiled on grounds of national security shall be placed in the custody of a special officer...” Article 4 “1. The special officer shall have custody of all documents belonging to the Police Service of the Federal Public Prosecutor’s Office. 2. He shall then sort the documents and withdraw those which serve no further purpose...” Article 5 “1. The special officer shall allow applicants to consult their cards by sending them a photocopy thereof. 2. He shall conceal data relating to persons who have processed the cards and to foreign intelligence and security services. 3. Furthermore, he may refuse or restrict the consultation if it (a) reveals details of investigative procedures in progress or of knowledge relating to the fight against terrorism, counter-intelligence or the fight against organised crime; ...” Article 13 “1. The ombudsman appointed by the Federal Council shall examine, at the request of the person concerned, whether the present Order has been complied with. …” Article 14 “1. Anyone claiming that his request to consult his card has not been dealt with in accordance with the present Order may contact the ombudsman within thirty days. 2. If the ombudsman considers that the Order has been complied with, he shall inform the applicant accordingly. The applicant may lodge an appeal with the Federal Council within thirty days of receiving the ombudsman’s decision. 3. If the ombudsman considers that the Order has not been complied with, he shall inform the special officer and the applicant accordingly. The special officer shall then give a fresh decision, which is subject to appeal.” 36. The relevant provisions of the Federal Decree of 9 October 1992 on the Consultation of Documents of the Federal Public Prosecutor’s Office provide: Article 4 “1. Authorisation to consult documents shall be granted to persons who submit a prima facie case that they have sustained pecuniary or non-pecuniary damage in connection with information transpiring from documents held by the Police Service or with acts by officers of the Federal Public Prosecutor’s Office. …” Article 7 “1. The special officer shall sort the documents placed in his custody and eliminate those which are no longer necessary for national security and are no longer the subject of a consultation process. 2. Documents relating to criminal proceedings shall be eliminated if (a) the time-limit for prosecuting the offence has expired following a stay of the proceedings; (b) the proceedings have been closed by an enforceable judgment. 3. The eliminated documents shall be stored in the Federal Archives. They can no longer be consulted by the authorities and access to them shall be prohibited for fifty years.” 37. The relevant provisions of the Federal Council’s Order of 20 January 1993 on the Consultation of Documents of the Federal Public Prosecutor’s Office are worded as follows: Article 11 “1. A person who contests the accuracy of certain data may request that an appropriate annotation be marked on the documents or appended thereto. 2. Documents which are manifestly erroneous shall be rectified at the request of the person concerned. ...” E. The Parliamentary Commission of Inquiry set up to investigate the so-called “card index” affair 38. A Parliamentary Commission of Inquiry (“PCI”) was set up to investigate the so-called “card index” affair. In its report published in the Federal Gazette ( Feuille fédérale (FF) 1990, I, pp. 593 et seq.) it noted, among other things, in connection with the monitoring of telephone conversations (pp. 759 and 760): “According to various sources, a number of people feared that their telephone conversations were being monitored for political reasons. The PCI has conducted a thorough examination of the technical surveillance measures ordered by the Federal Public Prosecutor’s Office. In the course of that examination it requested from the Federal Public Prosecutor’s Office a full and detailed list of the persons whose telephones were tapped and the telephone connections which were monitored; that list was then compared with the list requested independently from the Post, Telecommunications and Telegraph Office. The PCI was then able to satisfy itself, partly with the help of certain documents and also following an interview with the President of the Indictment Division of the Federal Court, that there were no differences between the lists drawn up by the authorities ordering the telephone tapping and the authorities implementing those orders. ... The federal investigating judge and, before the preliminary investigation begins, the Federal Public Prosecutor have power to order a surveillance measure. A decision taken to this effect is valid for no more than six months but may be extended if necessary. It requires in all cases the approval of the President of the Indictment Division of the Federal Court. That approval procedure has been considerably formalised over recent years and is now applied by means of a pre-printed form. The PCI noted that all decisions had been submitted to the President of the Indictment Division and that he had approved all of them without exception...” PROCEEDINGS BEFORE THE COMMISSION 39. Mr Amann applied to the Commission on 27 June 1995. Relying on Articles 8 and 13 of the Convention, he complained that a telephone call he had received had been intercepted, that the Public Prosecutor’s Office had filled in a card on him and kept it in the resulting federal card index and that he had had no effective remedy in that connection. 40. The Commission (First Chamber) declared the application (no. 27798/95) admissible on 3 December 1997. In its report of 20 May 1998 (former Article 31 of the Convention) it concluded, by nine votes to eight, that there had been a violation of Article 8 and, unanimously, that there had been no violation of Article 13. The full text of the Commission’s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment [3]. FINAL SUBMISSIONS TO THE COURT 41. In their memorials the Government asked the Court to find that the applicant had not repeated his complaint of a violation of Article 13 of the Convention and that there was therefore no need to examine it. With regard to the merits, the Government asked the Court to hold that the facts which gave rise to the application introduced by Mr Amann against Switzerland had not amounted to a violation of the Convention. 42. The applicant asked the Court to find that there had been a violation of Articles 8 and 13 of the Convention and to award him just satisfaction under Article 41. THE LAW I. alleged violation of article 8 of the convention arising from the interception of the telephone CALL of 12 October 1981 43. The applicant complained that the interception of the telephone call he had received from a person at the former Soviet embassy in Berne had breached Article 8 of the Convention, which is worded as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Applicability of Article 8 44. The Court reiterates that telephone calls received on private or business premises are covered by the notions of “private life” and “correspondence” within the meaning of Article 8 § 1 (see the Halford v. the United Kingdom judgment of 25 June 1997, Reports of Judgments and Decisions 1997-III, p. 1016, § 44). This point was not in fact disputed. B. Compliance with Article 8 1. Whether there was any interference 45. The Court notes that it is not disputed that the Public Prosecutor’s Office intercepted and recorded a telephone call received by the applicant on 12 October 1981 from a person at the former Soviet embassy in Berne. There was therefore “interference by a public authority”, within the meaning of Article 8 § 2, with the exercise of a right guaranteed to the applicant under paragraph 1 of that provision (see the Kopp v. Switzerland judgment of 25 March 1998, Reports 1998-II, p. 540, § 53). 2. Justification for the interference 46. Such interference breaches Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is, in addition, “necessary in a democratic society” to achieve those aims. (a) Whether the interference was “in accordance with the law” 47. The applicant submitted that there was no legal basis for the interference in Swiss law. In particular, he asserted that the Government could not rely on sections 66 to 72 FCPA as a basis for the measure complained of since they had not produced any evidence to prove that criminal proceedings had been brought against a third party or that the authorities had complied with the procedure laid down by those provisions. He argued in that connection that the Government’s claim that the documents were no longer available lacked credibility. It transpired from the report of the Parliamentary Commission of Inquiry set up to investigate the so-called “card index” affair that lists had been kept relating to the telephone tapping ordered by the Public Prosecutor’s Office and carried out by the Post, Telecommunications and Telegraph Office; furthermore, the Indictment Division of the Federal Court had kept registers recording the authorisations issued by its President; moreover, the Government could not claim that an employee at the former Soviet embassy in Berne was being monitored unless they had documents to support that assertion; lastly, the fact that the recording had not been destroyed “at the end of the proceedings” (section 66(1 ter ) FCPA) showed that there had not been an investigation within the meaning of sections 66 et seq. FCPA. The applicant maintained that all the telephone lines at the former Soviet embassy in Berne had been systematically tapped without any specific person being suspected of committing an offence or judicial proceedings being instituted in accordance with the law. He submitted that this presumption was confirmed by the fact that during the proceedings before the Swiss authorities the latter had expressly mentioned the term “counter-intelligence”. In addition, the inquiries by the Parliamentary Commission of Inquiry set up to investigate the so-called “card index” affair had shown that the federal police had monitored citizens for decades without a court order. Section 17(3) FCPA could not be relied on as a basis for such practices by the police politique. With regard to the Federal Council’s Decree of 29 April 1958 on the Police Service of the Federal Public Prosecutor’s Office, the applicant pointed out that the text contained purely organisational provisions relating to the various offices of the Federal Department of Justice and Police and did not in any way empower those offices to interfere with the rights and freedoms protected by the Convention; it could not therefore be considered to be an adequate legal basis. Moreover, the applicant considered that the text was not sufficiently precise and accessible to satisfy the requirement of “foreseeability” as defined by the Court’s case-law. 48. The Commission found that there had not been a sufficient legal basis for the monitoring of the applicant’s telephone conversation. The Federal Council’s Decree of 29 April 1958 on the Police Service of the Federal Public Prosecutor’s Office was drafted in too general terms. Furthermore, it had not been shown that the procedure laid down in sections 66 et seq. FCPA had been followed. 49. The Government maintained that there had definitely been a legal basis in Swiss law. As a preliminary point, they indicated that the measure in question had been carried out, under section 66(1 bis ) FCPA, in the context of monitoring ordered by the Public Prosecutor’s Office of a particular employee at the former Soviet embassy in Berne and that the applicant had not been the subject of the telephone tapping, either as a suspect or as a third party (the latter being the person who had ordered the depilatory appliance); the applicant had therefore been recorded “fortuitously” as a “necessary participant”. In the Government’s submission it was of little importance whether the measure had been ordered in the context of criminal proceedings which had already been instituted or with the aim of preventing the commission of an offence, since section 17(3) (based on Article 102 §§ 9 and 10 of the Federal Constitution), section 72 FCPA and Article 1 of the Federal Council’s Decree of 29 April 1958 on the Police Service of the Federal Public Prosecutor’s Office formed a sufficient legal basis in either case. It pointed out that the Court had concluded in a similar case that there had been a legal basis in Swiss law (see the Kopp judgment cited above, pp. 540-41, §§ 56-61). The only decisive question was whether the safeguards provided for by law had been complied with. In that connection the Government stated that since they were unable to consult the file they could not verify whether the approval of the President of the Indictment Division of the Federal Court required under section 66 bis FCPA had been granted. In the light of the statement in the report by the Parliamentary Commission of Inquiry set up to examine the so-called “card index” affair that the President of the Indictment Division of the Federal Court had approved all the investigating judge’s decisions, they presumed, however, that he had also done so in this case. 50. The Court draws attention to its established case-law, according to which the expression “in accordance with the law” not only requires that the impugned measure should have some basis in domestic law, but also refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects (see the Kopp judgment cited above, p. 540, § 55). (i) Whether there was a legal basis in Swiss law 51. The Government and the applicant disagreed as to whether that condition had been met. The Government’s submission that sections 17(3) and 72 FCPA and Article 1 of the Federal Council’s Decree of 29 April 1958 on the Police Service of the Federal Public Prosecutor’s Office amounted to a sufficient legal basis was disputed by the applicant. 52. The Court reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see the Kruslin v. France judgment of 24 April 1990, Series A no. 176-A, pp. 21-22, § 29, and the Kopp judgment cited above, p. 541, § 59). In that connection it points out that the Federal Court, in its judgment of 14 September 1994, held that it was unnecessary to examine whether sections 17(3) FCPA and Article 1 of the Federal Council’s Decree of 29 April 1958 on the Police Service of the Federal Public Prosecutor’s Office could justify the alleged infringement of the applicant’s personality rights. Moreover, that court expressed itself only in very general terms regarding section 72 FCPA, confining itself to pointing out that information could lawfully be gathered in order to prevent an offence being committed against the State or national security if there was evidence that such an offence was being prepared. 53. The Court has, admittedly, already ruled on the issue whether the Federal Criminal Procedure Act amounted, under Swiss law, to a sufficient legal basis for telephone tapping (see the Kopp judgment cited above, pp. 540-41, §§ 56-61). Unlike the position in the instant case, however, the authority to which Mr Kopp had submitted his complaint (the Federal Council) had examined in detail whether the surveillance was lawful (ibid., p. 533, § 31 (b)) and section 72 FCPA was not in issue. 54. In the instant case the Court does not consider it necessary to determine whether there was a legal basis for the interception of the telephone call of 12 October 1981. Even assuming that there was, one of the requirements flowing from the expression “in accordance with the law”, namely – here – foreseeability, was not satisfied. (ii) Quality of the law 55. The Court reiterates that the phrase “in accordance with the law” implies conditions which go beyond the existence of a legal basis in domestic law and requires that the legal basis be “accessible” and “foreseeable”. 56. According to the Court’s established case-law, a rule is “foreseeable” if it is formulated with sufficient precision to enable any individual – if need be with appropriate advice – to regulate his conduct (see the Malone v. the United Kingdom judgment of 2 August 1984, Series A no. 82, pp. 31-32, § 66). With regard to secret surveillance measures the Court has underlined the importance of that concept in the following terms (ibid., pp. 32-33, §§ 67-68): “The Court would reiterate its opinion that the phrase ‘in accordance with the law’ does not merely refer back to domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention ... The phrase thus implies – and this follows from the object and purpose of Article 8 – that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by paragraph 1 ... Especially where a power of the executive is exercised in secret, the risks of arbitrariness are evident... ... Since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference.” It has also stated that “tapping and other forms of interception of telephone conversations constitute a serious interference with private life and correspondence and must accordingly be based on a ‘law’ that is particularly precise. It is essential to have clear, detailed rules on the subject, especially as the technology available for use is continually becoming more sophisticated” (see the Kopp judgment cited above, pp. 542 ‑ 43, § 72). 57. The “quality” of the legal provisions relied on in the instant case must therefore be considered. 58. The Court points out first of all that Article 1 of the Federal Council’s Decree of 29 April 1958 on the Police Service of the Federal Public Prosecutor’s Office, according to which the federal police “shall provide an investigation and information service in the interests of the Confederation’s internal and external security”, including by means of “surveillance” measures, contains no indication as to the persons concerned by such measures, the circumstances in which they may be ordered, the means to be employed or the procedures to be observed. That rule cannot therefore be considered to be sufficiently clear and detailed to afford appropriate protection against interference by the authorities with the applicant’s right to respect for his private life and correspondence. 59. It considers that the same is true of section 17(3) FCPA, which is drafted in similar terms. 60. As regards the other provisions of the Federal Criminal Procedure Act, the Court observes that section 66 defines the categories of persons in respect of whom telephone tapping may be judicially ordered and the circumstances in which such surveillance may be ordered. Furthermore, sections 66 bis et seq. set out the procedure to be followed; thus, implementation of the measure is limited in time and subject to the control of an independent judge, in the instant case the President of the Indictment Division of the Federal Court. 61. The Court does not in any way minimise the importance of those guarantees. It points out, however, that the Government were unable to establish that the conditions of application of section 66 FCPA had been complied with or that the safeguards provided for in sections 66 et seq. FCPA had been observed. It points out further that, in the Government’s submission, the applicant had not been the subject of the impugned measure, either as a suspect or an accused, or as a third party presumed to be receiving information or sending it to a suspect or an accused, but had been involved “fortuitously” in a telephone conversation recorded in the course of surveillance measures taken against a particular member of staff of the former Soviet embassy in Berne. The primary object of the Federal Criminal Procedure Act is the surveillance of persons suspected or accused of a crime or major offence (section 66(1) FCPA), or even third parties presumed to be receiving information from or sending it to such persons (section 66(1 bis ) FCPA), but the Act does not regulate in detail the case of persons monitored “fortuitously” as “necessary participants” in a telephone conversation recorded by the authorities pursuant to those provisions. In particular, the Act does not specify the precautions which should be taken with regard to those persons. 62. The Court concludes that the interference cannot therefore be considered to have been “in accordance with the law” since Swiss law does not indicate with sufficient clarity the scope and conditions of exercise of the authorities’ discretionary power in the area under consideration. It follows that there has been a violation of Article 8 of the Convention arising from the recording of the telephone call received by the applicant on 12 October 1981 from a person at the former Soviet embassy in Berne. (b) Purpose and necessity of the interference 63. Having regard to the foregoing conclusion, the Court does not consider it necessary to examine whether the other requirements of paragraph 2 of Article 8 were complied with. II. alleged violation of article 8 of the convention arising from the CREATION of a card AND THE STORING THEREOF IN THE confederation’s cARD INDEX 64. The applicant complained that the creation of a card on him, following the interception of a telephone call he had received from a person at the former Soviet embassy in Berne, and the storing thereof in the Confederation’s card index had resulted in a violation of Article 8 of the Convention. A. Applicability of Article 8 65. The Court reiterates that the storing of data relating to the “private life” of an individual falls within the application of Article 8 § 1 (see the Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p. 22, § 48). It points out in this connection that the term “private life” must not be interpreted restrictively. In particular, respect for private life comprises the right to establish and develop relationships with other human beings; furthermore, there is no reason of principle to justify excluding activities of a professional or business nature from the notion of “private life” (see the Niemietz v. Germany judgment of 16 December 1992, Series A no. 251-B, pp. 33-34, § 29, and the Halford judgment cited above, pp. 1015-16, § 42). That broad interpretation corresponds with that of the Council of Europe’s Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data, which came into force on 1 October 1985 and whose purpose is “to secure in the territory of each Party for every individual ... respect for his rights and fundamental freedoms, and in particular his right to privacy, with regard to automatic processing of personal data relating to him” (Article 1), such personal data being defined as “any information relating to an identified or identifiable individual” (Article 2). 66. In the present case the Court notes that a card was filled in on the applicant on which it was stated that he was a “contact with the Russian embassy” and did “business of various kinds with the [A.] company” (see paragraphs 15 and 18 above). 67. The Court finds that those details undeniably amounted to data relating to the applicant’s “private life” and that, accordingly, Article 8 is applicable to this complaint also. B. Compliance with Article 8 1. Whether there was any interference 68. The Government submitted that the issue whether there had been “interference” within the meaning of Article 8 of the Convention remained open since “the card contained no sensitive information about the applicant’s private life”, the latter “had not in any way been inconvenienced as a result of the creation and storing of his card” and that it had “in all probability never been consulted by a third party”. 69. The Court reiterates that the storing by a public authority of information relating to an individual’s private life amounts to an interference within the meaning of Article 8. The subsequent use of the stored information has no bearing on that finding (see, mutatis mutandis, the Leander judgment cited above, p. 22, § 48, and the Kopp judgment cited above, p. 540, § 53). 70. In the instant case the Court notes that a card containing data relating to the applicant’s private life was filled in by the Public Prosecutor’s Office and stored in the Confederation’s card index. In that connection it points out that it is not for the Court to speculate as to whether the information gathered on the applicant was sensitive or not or as to whether the applicant had been inconvenienced in any way. It is sufficient for it to find that data relating to the private life of an individual were stored by a public authority to conclude that, in the instant case, the creation and storing of the impugned card amounted to an interference, within the meaning of Article 8, with the applicant’s right to respect for his private life. 2. Justification for the interference 71. Such interference breaches Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and, in addition, is “necessary in a democratic society” to achieve those aims. (a) Was the interference “in accordance with the law”? 72. The applicant submitted that there was no legal basis for creating and storing a card on him. In particular, he asserted that section 17(3) FCPA did not authorise the federal police to record the results of their surveillance measures. As to the Federal Council’s Directives of 16 March 1981 applicable to the Processing of Personal Data in the Federal Administration, these were intended for the civil servants of the administration and were not therefore sufficiently clear and precise to enable citizens to ascertain their rights and obligations. In his submission the authorities had, furthermore, failed to comply with the rules in force, since section 66(1 ter ) FCPA and section 414 of the Federal Council’s Directives of 16 March 1981 applicable to the Processing of Personal Data in the Federal Administration stipulated that recordings which turned out not to be necessary to the conduct of an investigation should be destroyed. Lastly, he pointed out that the legislation which had come into force in the early 1990s, after the so-called “card index” affair had broken, did not provide for the possibility of instituting judicial proceedings to have a card destroyed. Thus, under the Federal Decree of 9 October 1992 on the Consultation of Documents of the Federal Public Prosecutor’s Office and the Federal Council’s Order of 20 January 1993 on the Consultation of Documents of the Federal Public Prosecutor’s Office, cards were stored in the Federal Archives and all interested persons could do was have their card annotated if they disputed its contents. 73. The Commission agreed with the applicant. In particular, it considered that the Federal Council’s Directives of 16 March 1981 applicable to the Processing of Personal Data in the Federal Administration were insufficiently precise and merely presupposed that there was a legal basis to the storing of information without themselves providing one. 74. The Government submitted that the Swiss legal system provided a sufficiently accessible and foreseeable legal basis having regard to “the special nature of secret measures in the field of national security”. Before 1990, they submitted, the impugned measures had mainly been based on section 17(3) FCPA and Article 1 of the Federal Council’s Decree of 29 April 1958 on the Police Service of the Federal Public Prosecutor’s Office, those provisions being given concrete form by the Federal Council’s Directives of 16 March 1981 applicable to the Processing of Personal Data in the Federal Administration. They pointed out that those directives had been published in the Federal Gazette (FF 1981, I, p. 1314). After 1990, they submitted, a number of texts had been enacted on the processing and consultation of documents containing personal data, in particular the Federal Council’s Order of 5 March 1990 on the Processing of Federal National Security Documents, the Federal Decree of 9 October 1992 on the Consultation of Documents of the Federal Public Prosecutor’s Office and the Federal Council’s Order of 20 January 1993 on the Consultation of Documents of the Federal Public Prosecutor’s Office. (i) Creation of the card 75. The Court notes that in December 1981, when the card on the applicant was created, the Federal Criminal Procedure Act, the Federal Council’s Decree of 29 April 1958 on the Police Service of the Federal Public Prosecutor’s Office and the Federal Council’s Directives of 16 March 1981 applicable to the Processing of Personal Data in the Federal Administration were in force. None of those provisions, however, expressly mentions the existence of a register kept by the Public Prosecutor’s Office, which raises the question whether there was “a legal basis in Swiss law” for the creation of the card in question and, if so, whether that legal basis was “accessible” (see the Leander judgment cited above, p. 23, § 51). It observes in that connection that the Federal Council’s Directives of 16 March 1981 were above all intended for the staff of the federal administration. In the instant case, however, it does not consider it necessary to rule on this subject, since even supposing that there was an accessible legal basis for the creation of the card in December 1981, that basis was not “foreseeable”. 76. The Court has found above (see paragraphs 58 and 59) that section 17(3) FCPA and Article 1 of the Federal Council’s Decree of 29 April 1958 on the Police Service of the Federal Public Prosecutor’s Office were drafted in terms too general to satisfy the requirement of foreseeability in the field of telephone tapping. For the reasons already set out, it arrives at the same conclusion concerning the creation of the card on the applicant. As regards the Federal Council’s Directives of 16 March 1981 applicable to the Processing of Personal Data in the Federal Administration, they set out some general principles, for example that “there must be a legal basis for the processing of personal data” (section 411) or that “personal data may be processed only for very specific purposes” (section 412), but do not contain any appropriate indication as to the scope and conditions of exercise of the power conferred on the Public Prosecutor’s Office to gather, record and store information; thus, they do not specify the conditions in which cards may be created, the procedures that have to be followed, the information which may be stored or comments which might be forbidden. Those directives, like the Federal Criminal Procedure Act and the Federal Council’s Decree of 29 April 1958 on the Police Service of the Federal Public Prosecutor’s Office, cannot therefore be considered sufficiently clear and detailed to guarantee adequate protection against interference by the authorities with the applicant’s right to respect for his private life. 77. The creation of the card on the applicant was not therefore “in accordance with the law” within the meaning of Article 8 of the Convention. (ii) Storing of the card 78. The Court points out first of all that it would seem unlikely that the storing of a card which had not been created “in accordance with the law” could satisfy that requirement. Moreover, it notes that Swiss law, both before and after 1990, expressly provided that data which turned out not to be “necessary” or “had no further purpose” should be destroyed (section 66(1 ter ) FCPA, section 414 of the Federal Council’s Directives of 16 March 1981 applicable to the Processing of Personal Data in the Federal Administration and Article 7 of the Federal Decree of 9 October 1992 on the Consultation of Documents of the Federal Public Prosecutor’s Office). In the instant case the authorities did not destroy the stored information when it emerged that no offence was being prepared, as the Federal Court found in its judgment of 14 September 1994. 79. For these reasons, the storing of the card on the applicant was not “in accordance with the law” within the meaning of Article 8 of the Convention. 80. The Court concludes that both the creation of the impugned card by the Public Prosecutor’s Office and the storing of it in the Confederation’s card index amounted to interference with the applicant’s private life which cannot be considered to be “in accordance with the law” since Swiss law does not indicate with sufficient clarity the scope and conditions of exercise of the authorities’ discretionary power in the area under consideration. It follows that there has been a violation of Article 8 of the Convention. (b) Purpose and necessity of the interference 81. Having regard to the foregoing conclusion, the Court does not consider it necessary to examine whether the other requirements of paragraph 2 of Article 8 were complied with. III. alleged violation of article 13 of the convention 82. The applicant also alleged a violation of Article 13 of the Convention, which is worded as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The Government’s preliminary objection 83. The Government noted that the applicant had not repeated his complaint relating to Article 13 of the Convention in his memorial submitted on 11 May 1999. They accordingly considered that there was no need to examine that issue. 84. The Court notes that the applicant relied on Article 13 of the Convention before the Commission, that the Commission examined that complaint in its report of 20 May 1998 and that, when invited to lodge with the Court memorials relating to the issues raised by this case, as declared admissible by the Commission, the applicant submitted observations on Article 13 in his memorial filed on 14 June 1999. Accordingly, the Court considers that the applicant did not manifest an intention to waive before it his complaint of a violation of Article 13 of the Convention which he had alleged before the Commission. The Government’s preliminary objection cannot therefore be upheld. B. Merits of the complaint 85. The applicant complained that he had not had an “effective remedy” since he had been unable to raise before the Federal Court the issue whether the telephone tapping and the creation and storing of the card were lawful. 86. The Commission found that the administrative-law action brought by the applicant had amounted to an effective remedy. 87. The Government agreed with that finding. They stressed that the applicant, in bringing an administrative-law action in the Federal Court, had sought compensation for non-pecuniary damage and, in the alternative, a finding that the card on him was illegal. 88. The Court reiterates first of all that in cases arising from individual petitions the Court’s task is not to review the relevant legislation or practice in the abstract; it must as far as possible confine itself, without overlooking the general context, to examining the issues raised by the case before it (see the Holy Monasteries v. Greece judgment of 9 December 1994, Series A no. 301-A, pp. 30-31, § 55). It further observes that Article 13 of the Convention requires that any individual who considers himself injured by a measure allegedly contrary to the Convention should have a remedy before a national authority in order both to have his claim decided and, if appropriate, to obtain redress (see the Leander judgment cited above, pp. 29-30, § 77). That provision does not, however, require the certainty of a favourable outcome (see the D. v. the United Kingdom judgment of 2 May 1997, Reports 1997-III, p. 798, § 71). 89. In the instant case the Court notes that the applicant was able to consult his card as soon as he asked to do so, in 1990, when the general public became aware of the existence of the card index being kept by the Public Prosecutor’s Office. It also points out that the applicant brought an administrative-law action in the Federal Court and that on that occasion he was able to complain, firstly, about the lack of a legal basis for the telephone tapping and the creation of his card and, secondly, the lack of an “effective remedy” against those measures. It notes that the Federal Court had jurisdiction to rule on those complaints and that it duly examined them. In that connection it reiterates that the mere fact that all the applicant’s claims were dismissed is not in itself sufficient to determine whether or not the administrative-law action was “effective”. 90. The applicant therefore had an effective remedy under Swiss law to complain of the violations of the Convention which he alleged. There has not therefore been a violation of Article 13. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 91. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 92. The applicant claimed 1,000 Swiss francs (CHF) for non-pecuniary damage and did not claim any amount in respect of pecuniary damage. 93. The Government maintained that if the Court were to find a violation of the Convention, the non-pecuniary damage would be adequately compensated by the publicity given to the judgment. 94. The Court considers that the non-pecuniary damage is adequately compensated by the finding of violations of Article 8 of the Convention. B. Costs and expenses 95. The applicant also claimed CHF 7,082.15 in respect of his costs and expenses for the proceedings before the Convention institutions. 96. The Government stated that, in the light of all the circumstances of the present case and the amounts awarded by the Court in other applications directed against Switzerland, they were prepared to pay CHF 5,000. 97. The Court considers that the claim for costs and expenses is reasonable and that it should be allowed in full. C. Default interest 98. According to the information available to the Court, the statutory rate of interest applicable in Switzerland at the date of adoption of the present judgment is 5% per annum. | The Court held that there had been a violation of Article 8 of the Convention on account of the recording of the telephone call and a violation of the same provision on account of the creation and storage of the file, finding that these interferences with the applicant’s right to respect for his private life were not in accordance with the law, since Swiss law was unclear as to the authorities’ discretionary power in this area. |
63 | Adoption | II. RELEVANT DOMESTIC LAW 1. General provisions on adoption (a) International instruments 299. Russia signed the Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption of 29 May 1993 (The Hague Adoption Convention) on 7 September 2000, but it has not yet been ratified. Russia is not a party to the European Convention on the Adoption of Children, which opened for signature in Strasbourg on 24 April 1967. 300. On 13 June 1990 Russia ratified the United Nations Convention on the Rights of the Child of 20 November 1989. The Convention provides, in so far as relevant : Article 21 “States Parties that recognise and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall: (a) Ensure that the adoption of a child is authorised only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child ’ s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary; (b) Recognise that inter-country adoption may be considered as an alternative means of childcare, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child ’ s country of origin; ...” 301. At its twenty-second annual session held in Istanbul, Turkey between 29 June and 3 July 2013, the OSCE Parliamentary Assembly adopted the Resolution on Intercountry Adoptions, which reads as follows: “1. Desirous that a child, for the full development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love, and understanding, 2. Understanding the necessity to take appropriate measures to keep the child with his or her birth family but, where that is not possible, to place the child with a substitute family in the child ’ s country of origin for the purposes of upbringing, 3. Acknowledging that intercountry adoption may offer the advantages of a permanent family to a child if a suitable family cannot be found for the child in his or her country of origin, 4. Affirming the sovereign prerogatives and responsibilities of participating States to permit, prohibit, restrict, or otherwise regulate the practice of intercountry adoptions consistent with international norms and commitments, 5. Concerned that the political volatility of intercountry adoptions can have a deterring effect on the willingness of prospective adoptive parents to commit the substantial emotional and other resources required to pursue an intercountry adoption, thus increasing the likelihood that more children will be deprived of the happiness, love, and understanding of a family, 6. Sensitive to the fact that a child who is unable to grow up with his or her birth family has suffered loss, rejection, abandonment, neglect, or abuse and that, in all matters relating to the placement of a child outside the care of his or her own parents, the best interests of the child, particularly his or her need for affection and right to security and continuing care, should be the paramount consideration and every effort should be made to spare the child further disappointment and harm, 7. Recognizing the bond that forms rapidly between a child and prospective adoptive parents during the adoption process but before a legal parent-child relationship has been effected, 8. Convinced that this bond forms the foundation of a nascent family and that such a family is worthy of the recognition, respect, and protection of participating States, The OSCE Parliamentary Assembly: 9. Calls on participating States to recognize the foundational bond between prospective adoptive parents and the child and to honor and protect these nascent families; 10. Urges participating States to resolve differences, disputes, and controversies related to intercountry adoptions in a positive and humanitarian spirit with special attention being given to avoid any general, indiscriminate disruption of intercountry adoptions already in progress that could jeopardize the best interests of the child, harm the nascent family, or deter prospective adoptive parents from pursuing an intercountry adoption; 11. Requests the OSCE take the necessary steps in a Ministerial Council decision, possibly in the context of existing human dimension commitments concerning family reunification, to clarify the issue of safeguarding, on a collective basis, the nascent family formed where an intercountry adoption is well-advanced.” (b) Constitution 302. Article 6 § 3 of the Constitution of the Russian Federation provides: “Foreign nationals and stateless persons have in the Russian Federation the same rights and obligations as nationals of the Russian Federation except as provided in a federal law or an international treaty of the Russian Federation.” 303. Article 15 provides, insofar as relevant: “4. The generally recognised principles and norms of international law and the international treaties of the Russian Federation shall be an integral part of its legal system. If an international treaty of the Russian Federation establishes rules other than those provided for by the law, the rules of the international treaty shall apply.” (c) Code of Civil Procedure 304. Article 269 (2) of the Code provides that nationals of the Russian Federation permanently living abroad, foreign nationals and stateless persons may submit an adoption application to a court according to the place of residence or whereabouts of the child they are seeking to adopt. 305. Pursuant to Article 270, the adoption application should contain the name of the adoptive parent(s) and his/her/their place of residence; the name, date of birth and place of residence or whereabouts of the child that is the candidate for adoption together with clarification as to whether he/she has any siblings; reasons for the application; a request, if any, to change the child ’ s name or date of birth. 306. Article 271 provides a list of documents to be submitted with the adoption application, including : (1) a copy of the child ’ s birth certificate; (2) a copy of the adoptive parents ’ marriage certificate if the application is submitted by a married couple; (3) if the application is submitted by one of the spouses, the other spouse ’ s consent or a document attesting that marital relations have been discontinued and the spouses have not been living together for over a year, or other written proof thereof; (4) medical report on the state of health of the adoptive parent(s); (5) employment certificate and either a pay statement or other document attesting income; (6) a document either confirming title to a property or the right to use a dwelling; (7) a document confirming that the applicant(s) has (have) been included in the register as a prospective adoptive parent; (8) a document confirming that the applicant(s) has (have) undergone the requisite training for prospective adoptive parents. 307. Article 271 (1.1-2) further provides that nationals of the Russian Federation permanently living abroad, foreign nationals and stateless persons should enclose with their application, in addition to the documents listed above, an attestation from the competent agency in the applicant ’ s home State (or of the Russian national ’ s permanent place of residence) as to their living conditions and suitability to become adoptive parents, as well as a permit from that State authorising the child ’ s entry and subsequent permanent residence in the State. 308. Article 272 (1) states that in the course of its preparation for the hearing, the court must obtain an opinion from the custody and guardianship office concerning the prospective adoption. Pursuant to Article 272 (2), in cases involving the adoption by nationals of the Russian Federation permanently living abroad, foreign nationals and stateless persons, a document attesting to the impossibility of placing the child in the care of Russian nationals or of the child ’ s relatives ‒ irrespective of their nationality and place of residence ‒ should be enclosed with the opinion. 309. Pursuant to Article 273, the adoption application is examined by a court in camera in the mandatory presence of the adoptive parent(s), a representative from the custody and guardianship office, the prosecutor, and the child if the latter is over fourteen years old; the presence of the child ’ s parents, other interested parties and the child ‒ if aged between ten and fourteen years old ‒ can also be required if deemed necessary. 310. Pursuant to Article 274, if the court grants the adoption application, the rights and obligations of the adoptive parents and the adopted child become established on the date of the entry into force of the decision. (d) Family Code 311. Pursuant to Article 126 of the Code, Russian local executive agencies must keep a register of foreign nationals and stateless persons wishing to adopt a child. 312. Article 165 of the Code provides that adoption of a child who is a Russian national by foreign persons should be carried out in compliance with the law of the State of the adoptive parents ’ nationality. At the same time, the general provisions of Russian law concerning adoption and the provisions of the relevant international treaties should also be complied with. (e) Government Decree no. 275 of 29 March 2000 on Adoption of the Rules for the Transfer of Children for Adoption and Exercise of Control over the Conditions of their Living and Upbringing in Adoptive Families in the Territory of the Russian Federation and [on Adoption] of the Rules on Registration by Consulates of the Russian Federation of Children – Nationals of the Russian Federation Adopted by either Foreign Nationals or Stateless Persons 313. The Decree provides that adoption by foreign nationals or stateless persons of children who are Russian nationals is allowed only when it appears impossible to place such children in the care of Russian nationals permanently residing in Russia or of the children ’ s relatives, irrespective of the latter ’ s nationality and place of residence (Article 24). 314. The Decree further provides that an adoption agency specifically authorised by a foreign State through its representatives in Russia may represent the interests of Russian nationals permanently living abroad, foreign nationals or stateless persons in respect of adoption-related matters (Article 25). (f) Federal Law no. 44-FZ of 16 April 2001 on the State Databank of Children Left without Parental Care 315. The law governs the functioning of the State databank of children left without parental care (“ the State databank ”). According to the law, the State databank should also contain information about persons wishing to adopt a child, including that person ’ s nationality (Section 7). Information about a person may be removed from the State databank, in particular, if the circumstances allowing that person to accept a child into his or her family have changed (Section 9 § 2). The law uses the terms “federal operator” of the State databank for a federal executive agency and “regional operator” for an executive agency of a subject of the Russian Federation, which carries out the placement in families of children left without parental care (Section 1). (g) Government Decree no. 217 of 4 April 2002 on the State Databank of Children Left without Parental Care and the Exercise of Control over its Formation and Use 316. The Decree develops the provisions of Federal Law no. 44-FZ of 16 April 2001 and provides a procedure for persons wishing to adopt a child, with which they must comply prior to submitting an adoption application to a court. Article 20 of the Decree sets out the list of documents that must be submitted to the operator of the State databank of children left without parental care by Russian nationals permanently living abroad, foreign nationals or stateless persons wishing to adopt a child. They include: (1) a statement of intent to adopt a child and a request to obtain information on children from the State databank of children left without parental care; (2) a completed application form; (3) an undertaking to register the child with a Russian consulate abroad; (4) an undertaking to allow inspection of the adopted child ’ s living conditions; (5) a copy of an identity document; (6) an attestation by the competent agency in the person ’ s home State as to his or her living conditions and suitability to become an adoptive parent; (7) an undertaking by the competent agency in the person ’ s home State to monitor the adopted child ’ s living conditions and upbringing in the adoptive parents ’ family; (8) an undertaking by the competent agency in the person ’ s home State to ensure that the adopted child is registered with a Russian consulate abroad; (9) a copy of the licence or other document confirming the authority of the competent agency in the person ’ s home State referred to in (6) above. 317. All the above documents should be notarised and a certified Russian translation of foreign language documents should be provided (Article 23). Upon receipt of the documents, the operator of the State databank will provide the foreign applicant with information about candidate children who correspond to the applicant ’ s wishes or will return the documents with a written refusal to provide the information requested, indicating the reasons for the refusal (Article 24). If the outcome is favourable, the operator will provide the applicant with a referral to visit the child (Article 25). The referral is valid for a period of ten days, which can be extended by the operator. The applicant must visit the child and subsequently inform the operator whether he/she wishes to continue the adoption procedure (Article 16). Within ten days of receipt of the foreign applicant ’ s request to adopt a child, the regional operator will transmit the information about the applicant and the child to the federal operator. Within a further ten days the latter will confirm the child ’ s inclusion in the State databank and the impossibility of placing the child in the care of Russian nationals permanently residing in Russia (Article 28). Within another ten days the foreign applicant should inform the operator in writing (a) that the adoption application has been submitted to a court; (b) of the court ’ s decision in this respect; (c) of the applicant ’ s decision to abandon his or her efforts to find a child for adoption and the removal of the information about him/her from the State databank (Article 29). (h) Government Decree no. 654 of 4 November 2006 on the Activity of Foreign States ’ Agencies and Organisations in [Carrying out] the Adoption of Children in the Territory of the Russian Federation and Control over its Exercise 318. The Decree contains provisions on the opening, functioning and discontinuation of the activities of foreign adoption agencies ’ representative offices in Russia. Article 2 of the Decree authorises the Ministry of Education and Science to issue permits to open a representative office. Pursuant to Article 20 of the Decree, representative offices of foreign adoption agencies may carry out the following activities in Russia : (1) submit an application seeking a child for adoption to an executive agency or the Ministry of Education and Science and submit an adoption application to a court; (2) obtain information about the child on the basis of the prospective adoptive parents ’ application; (3) issue invitations and provide visa support for prospective adoptive parents; (4) arrange accommodation for prospective adoptive parents and assist them with the adoption procedure; (5) participate in court hearings on adoption cases, receive judicial decisions on adoption and assist adoptive parents in obtaining a birth certificate and a passport for the child to enable the latter travel outside Russia; (6) carry out on Russian territory any other lawful activity related to the representation of adoptive parents ’ and prospective adoptive parents ’ interests. 319. Pursuant to Article 14 of the Decree, the representative office of a foreign adoption agency which has received a decision ordering either the suspension or discontinuation of its activity must cease its adoption- related activity. (i) Decree of the Ministry of Education and Sciences no. 347 of 12 November 2008 on the Approval of the Administrative Rules on the Exercise of the Function of Federal Operator of the State Databank of Children Left without Parental Care and on the Issuance of Preliminary Adoption Permits 320. The Rules adopted by the Decree govern the activity of the Ministry of Education and Science in so far as it concerns its functions as the federal operator of the State databank. ( j ) Presidential Decree no. 1688 of 28 December 2012 on Certain Measures for the Realisation of State Policy in the Area of the Protection of Orphaned Children and Children Left without Parental Care 321. The Decree contains instructions on measures to be taken with a view to encouraging adoption by Russian nationals. They include, in particular, simplification of the adoption procedure, improvement of the medical care offered to orphaned children and children left without parental care, and an increase in social benefits. The Decree also instructs the Supreme Court to provide clarifications for the lower courts on the application of Law 272-FZ. 2. Specific provisions on adoption of Russian children by nationals of the United States of America (a) Agreement between the United States of America and the Russian Federation Regarding Cooperation on the Adoption of Children of 13 July 2011 322. The purpose of the Bilateral Agreement on Adoption was explained in a Joint Statement by the Presidents of the United States of America and the Russian Federation Concerning Intercountry Adoption released on 24 June 2010. The Statement reads as follows: “We are convinced that all children have the right to grow up in a family environment, in an atmosphere of happiness, love and understanding. Many children throughout the world are deprived of this natural right. Every year, tens of thousands of children find loving parents through adoptions, including international adoptions. We honor those who have the generosity to welcome adopted children, in particular from other countries, into their families. However, tragic incidents involving children adopted between our countries caused by the adoptive parents underscore the importance of ensuring reliable protections for the rights, safety, and well-being of adopted children. We are committed to doing everything in our power to achieve this. In this regard, we have come to the conclusion that it is necessary to conclude a legally binding bilateral agreement on cooperation in the field of intercountry adoption. At our direction, experts from the United States and Russia have already been actively working on a draft, and they have informed us that they have made considerable progress in fulfilling this difficult task. We will work together so that entry into force of this agreement as soon as possible would create an even stronger legal basis for adoption in the interests of children and families of both our countries.” 323. The Bilateral Agreement on Adoption was signed in Washington, DC on 13 July 2011. It was ratified by the Russian State Duma on 28 July 2012 (Federal Law no. 150- FZ) and entered into force on 1 November 2012. 324. The Bilateral Agreement on Adoption sets out the procedure to be followed by Russian nationals for the adoption of children who are nationals of the United States and by nationals of the United States for the adoption of children who are nationals of Russia. It provides, in particular, that the adoption of a child from Russia shall occur only with the assistance of an authorised organisation, except in cases of adoption by the child ’ s relatives (Article 4 §§ 4 and 5). The authorised organisation must be an entity in the United States authorised to perform activities in the field of intercountry adoption in accordance with the domestic laws of the United States and authorised to perform such activities on Russian territory in accordance with Russian domestic laws and the Bilateral Agreement on Adoption (Article 1 § 5). 325. The Bilateral Agreement on Adoption further provides that the prospective adoptive parents must obtain written appraisals of their living conditions and their suitability and eligibility to adopt a child, which must be issued by the competent authorities in the receiving country, that is to say in the country where the child will reside after his or her adoption (Article 8 § 1). The procedure for the prospective adoptive parents or an authorised organisation for submitting an adoption application to the competent authority of the country of origin (the country of which the child is a citizen and where he or she is habitually resident prior to the adoption) is determined by the domestic laws of the country of origin (Article 9 § 1). After the prospective adoptive parents have become personally acquainted with the child and have given their formal agreement, the competent authority of the receiving country, if required by the domestic laws of either party, shall: (a) review the documentation submitted by the prospective adoptive parents indicating that (i) the adoption and transfer are being carried out with the assistance of an authorised organisation; (ii) the prospective adoptive parents have been duly informed of the requirements for completing the process of adoption in accordance with the domestic laws of the country of origin; (b) confirm that the prospective adoptive parents have received the information and undergone all the requisite psycho-social preparation with the assistance of the authorised organisation or the competent authority; and that the appraisal regarding the prospective adoptive parents ’ suitability and eligibility to adopt a child remains legally valid on the basis of all the available information about the child matched against the prospective adoptive parents, including the child ’ s social situation and medical history, his or her special needs, his or her availability for adoption and a detailed conclusion concerning his or her current state of health; (c) issue a preliminary conclusion concerning the eligibility of the prospective adoptive parents to move the child who is being adopted from the country of origin to the receiving country (Article 10 § 1). 326. The Bilateral Agreement on Adoption also contains the following provisions concerning its purposes, scope, applicable law and termination: Article 3 “1. This Agreement is concluded for the purposes of ensuring that adoption of children from the United States of America to the Russian Federation and from the Russian Federation to the United States of America takes place with a view to ensuring the protection of the rights and best interests of the child. 2. The Parties shall cooperate with the goal of ensuring that adoption of children in accordance with this Agreement is based on the voluntary actions of the individuals involved in accordance with the Parties ’ domestic laws. 3. The Parties shall take appropriate measures provided for by their domestic laws to prevent and suppress illegal activities involving children being adopted ... 4. The Parties proceed from the premise that this Agreement covers adoptions where the Country of Origin decides, in accordance with its domestic laws, that it is not possible to arrange for the upbringing of the children in their birth families and: for the adoption of a child from the United States of America – when due consideration has been given to the possibilities for placement of the child with a family in the United States of America in accordance with its domestic law; for the adoption of a child from the Russian Federation – when it does not appear to be possible to settle him or her for upbringing or place him or her with a family that could provide for his or her upbringing or adoption in the Russian Federation in accordance with its domestic law.” Article 6 “1. The adoption and transfer of a child under this Agreement shall be carried out in accordance with the domestic laws of the Parties and the provisions of this Agreement. The requirements for prospective adoptive parents shall be determined by the domestic laws of the Parties and the provisions of this Agreement. 2. The conditions under which a child may be adopted, the list of persons, organizations or bodies whose consent is required for the adoption, and also the form of such consent shall be determined by the domestic laws of the Country of Origin. 3. The decision regarding adoption of a child shall be made by the Country of Origin ’ s Competent Authority that makes a decision regarding adoption.” Article 17 “... 4. Prospective adoptive parents whose documents were registered at a Regional Authority of the Country of Origin at the time of entry into force of this Agreement shall have the right to complete the adoption procedure in accordance with the procedure which was in place prior to the entry into force of this Agreement. ... ” 5. This Agreement shall remain in force until one year from the date that one of the Parties informs the other Party through diplomatic channels of its intention to terminate this Agreement. ... (b) Federal Law no. 272-FZ of 28 December 2012 on Measures in respect of Persons Involved in a Breach of Fundamental Human Rights and Freedoms, Rights and Freedoms of Nationals of the Russian Federation 327. Law no. 272-FZ was adopted by the State Duma on 21 December 2012, approved by the Senate on 26 December 2012 and signed by the President on 28 December 2012. It entered into force on 1 January 2013. Section 1 § 1 lists activities that constitute a breach of Russian nationals ’ rights and freedoms, which include: ( a) involvement in abuse of fundamental human rights and freedoms; ( b) involvement in crimes against Russian nationals abroad; ( c) actions or omissions leading to exemption from responsibility of persons involved in crimes against Russian nationals; ( d) taking decisions resulting in the exemption from responsibility of persons involved in crimes against Russian nationals; ( e) involvement in kidnapping and arbitrary imprisonment of Russian nationals; ( f) delivery of arbitrary and biased convictions in respect of Russian nationals; ( g) arbitrary prosecution of Russian nationals; ( h) taking arbitrary decisions violating the rights and legitimate interests of Russian nationals. 328. Sections 1 and 2 of the law provide for a ban on entering Russia and for seizure of assets owned by United States nationals involved in such activities and a ban on carrying out any transactions involving the property and investments of such nationals. Under Section 2 § 1 an executive authority shall draw up a list of persons susceptible to such measures. 329. Section 3 § 1 also bans activity by non-commercial organisations involved in political life in Russia if they have received free of charge any assets from United States nationals or entities, or if they carry out on Russian territory projects, programmes or other activities which represent a threat to the interests of the Russian Federation. Under Section 3 § 2 a Russian national who is also a United States national may be neither a member nor the head of a non-commercial organisation or of a branch thereof, or of a branch of an international or foreign organisation if that organisation participates in political life in Russia. 330. The law contains the following provisions concerning the adoption of Russian children by United States nationals: Article 4 “1. It is forbidden to transfer children who are nationals of the Russian Federation for adoption by nationals of the United States of America; the operation of agencies and organisations aimed at selecting and transferring children who are nationals of the Russian Federation for adoption by nationals of the United States of America wishing to adopt such children [is also prohibited] on the territory of the Russian Federation. 2. Due to the prohibition established in paragraph 1 of the present Section on transfer of children who are nationals of the Russian Federation for adoption by the nationals of the United States of America, the Agreement between the United States of America and the Russian Federation Regarding Cooperation in Adoption of Children of 13 July 2011 is to be terminated by the Russian Federation.” (c) Memorandum no. 7-VS-224/13 of 22 January 2013 issued by the Russian Supreme Court 331. The Supreme Court provided the lower courts with the following instructions concerning the application of Law no. 272-FZ: “In accordance with Article 125 § 3 of the Family Code of the Russian Federation and Article 274 § 2 of the Code of Civil Procedure of the Russian Federation, in cases where an adoption application is granted, the rights and obligations of the adoptive parent(s) and the adopted child become established on the date on which the court decision concerning the adoption enters into force. Therefore, in cases where decisions concerning the adoption of children who are nationals of the Russian Federation by nationals of the United States of America were taken by the courts before 1 January 2013 and duly entered into force ( even if after 1 January 2013), the children should be transferred to the adoptive parents.” ( d ) Decree of the Ministry of Education and Science no. 82 of 13 February 2013 on Rectification of Breaches of Legislation of the Russian Federation when Forming, Keeping and Using the State Databank on Children left without Parental Care 332. The Decree provides, inter alia, that regional operators should ensure that the transfer of children who are to be adopted by families of foreign nationals must be carried out in accordance with the provisions of Law no. 272 ‑ FZ (Article 3.4.3). ( e ) Memorandum from the Ministry of Education and Science no. DL-88/07 of 16 April 2013 333. The memorandum states that, taking into account the ban on the adoption of Russian children by United States nationals introduced by Law no. 272-FZ, regional operators of the State databank should not issue a referral to visit a child to United States nationals who have been provided with information concerning the prospective adoptee. 334. Furthermore, in accordance with Section 9 § 2 of the Law on the State Databank, information about a prospective adoptive parent may be removed from the State databank, in particular, if the circumstances enabling the person to accept the child into his or her family for future upbringing have changed. Since the adoption of Russian children by United States nationals has become impossible, regional operators should remove information about prospective adoptive parents who are United States nationals and inform the latter accordingly. 335. Children left without parental care in respect of whom a referral for a visit has been issued to United States nationals, and/or in respect of whose adoption the said United States nationals have given their formal agreement, may be transferred to other families (excluding those of United States nationals) for future upbringing, as provided by the Family Code and the Law on the State Databank. 336. When exercising their activity, custody and guardianship, authorities and regional operators should take into account Decree of the Ministry of Education and Science no. 82 of 13 February 2013. In particular, priority should be given to transfer into families of Russian nationals permanently living in Russia when executing the transfer of children for adoption. THE LAW I. JOINDER OF THE APPLICATIONS 337. The Court considers that, pursuant to Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common factual and legal background. II. REQUEST FOR WITHDRAWAL 338. In a letter dated 4 April 2014, applicants J.R .V. and M.L.V., application no. 12275/13, informed the Court of their wish to withdraw their complaints. 339. In the light of the foregoing, and in the absence of any special circumstances regarding respect for the rights guaranteed by the Convention or its Protocols, the Court, in accordance with Article 37 § 1 (a) of the Convention, considers that it is no longer justified to continue examination of the complaints. 340. It follows that this part of application no. 12275/13 must be struck out of the list in accordance with Article 37 § 1 (a) of the Convention. III. VICTIM STATUS 341. Having regard to case no. 37173/13, the Court notes that G.N.Y.H., the US applicants ’ previously adopted daughter, was not a party to the adoption proceedings in the present case. Accordingly, she cannot claim to be a victim of the alleged violations of the Convention. 342. It follows that this part of application no. 37173/13 is incompatible with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. IV. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS A. Six months 343. The Government contended that application no. 42340/13 had been lodged outside the six - month time-limit provided for in Article 35 § 1 of the Convention, the St. Petersburg City Court having returned the adoption application to the US applicants on 9 February 2012, and the application before the Court having not been lodged until 30 June 2013. 344. The Court notes that the applicants in the case concerned did not complain about the St. Petersburg City Court ruling of 9 February 2012, whereby their adoption application was returned to them without examination. The subject of their complaint is the entry into force of Law no. 272-FZ, which occurred on 1 January 2013, and their application was lodged on 30 June 2013, that is to say within six months of the date in question. Accordingly, the Government ’ s objection must be dismissed. B. Non-exhaustion 1. The parties ’ submissions 345. The Government further argued that the US applicants had failed to exhaust the available domestic remedies, in particular: (i) the US applicants in case no. 23890/13 were neither registered in the Russian State databank as prospective adoptive parents, nor were they assisted by an authorised adoption agency; (ii) the US applicants in cases nos. 23890/13 and 37173/13 had never obtained a referral from the Russian competent authorities to visit the children in question; (iii) the US applicants T.L.B.-S., Q.S., W.S., C.B. and T.B. in case no. 12275/13 and the US applicants in cases nos. 23890/13, 26309/13, 27161/13, 32224/13, 32331/13, 37173/13 and 38490/13 had not submitted an adoption application to a Russian court; (iv) the US applicant G.D.C. in case no. 6033/13, the US applicants M.S.P., A.N.P., S.M., K.M., J.R.V. and M.L.V. in case no. 12275/13, and the US applicants in cases nos. 29197/13 and 32368/13 had failed to comply with Article 4 § 4 of the Bilateral Agreement on Adoption, which provides that adoption of a child from Russia may take place only with the assistance of an authorised organisation; (v) the US applicant G.D.C. in case no. 6033/13, the US applicants D.S.G., B.C., J.W.S., and S.A.K. in case no. 12275/13 and the US applicant in case no. 29197/13 had submitted their adoption applications to a Russian court only after the entry into force of Law no. 272-FZ, being aware that adoption of Russian children by nationals of the United States was forbidden; and (vi) most of the US applicants had failed to appeal against the last judicial decision in their case and none of them had applied for supervisory review. 346. The applicants submitted the following with regard to the plea of non-exhaustion raised by the Government. As regards the first and third groups of applicants in case no. 6033/13, their leave to have the cassation appeal examined by the Presidium had been refused. Supervisory review not being an effective remedy for the purposes of Article 35 § 1 of the Convention, the applicants had therefore exhausted all available domestic remedies. As for cases nos. 8927/13 and 10549/13, where the applications for adoption were dismissed by the first-instance courts and the dismissals were upheld on appeal, in the applicants ’ view, lodging a cassation appeal would be ineffective for the purposes of the above provision. In case no. 6033/13 in the part relating to the second group of applicants, case no. 12275/13 in the part related to the first, second, third, fifth and seventh groups of applicants, and cases nos. 23890/13, 26309/13, 29197/13, 32351/13, 32368/13, 42340/13 and 42403/13, the adoption applications had not been accepted by the courts for various reasons, but mostly on the grounds of inadequate representation. Where the applicants submitted the application themselves or through another individual, it had been rejected on the grounds that it could only be submitted through an authorised agency. Where it was submitted through an adoption agency, it was rejected on the grounds that the agency ’ s activity had been banned pursuant to Law no. 272-FZ. The applicants therefore had no possibility of submitting their adoption application to a domestic court. As for case no. 12275/13 in the part relating to the fourth, sixth and eighth groups of applicants, and cases nos. 27161/13, 32224/13, 32331/13, 37173/13 and 38490/13, the applicants had been unable to submit the adoption application to a court before the entry into force of Law no. 272-FZ, which rendered any such application futile. Overall, the applicants maintain that they had no effective domestic remedies in the situation at hand as, irrespective of whether or not they lodged the adoption application with a court, and whether or not they filed any subsequent appeals, a negative outcome was pre-determined by virtue of the ban on adoption by US nationals introduced by Law no. 272-FZ (see Akdivar and Others v. Turkey, 16 September 1996, § 67, Reports of Judgments and Decisions 1996 ‑ IV). 2. The Court ’ s assessment 347. The Court reiterates that Article 35 § 1 of the Convention provides for a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available both in theory and in practice at the relevant time, that is to say that it was accessible, capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success (see Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999-V, and Mifsud v. France (dec.), no. 57220/00, § 15, ECHR 2002-VIII). The Court further reiterates that the domestic remedies must be “effective” in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that has already occurred (see Kudła v. Poland [GC], no. 30210/96, § 158, ECHR-XI). 348. The Court notes that the US applicants ’ complaints concern the impossibility of completing the adoption procedure initiated in respect of the Russian children due to the entry into force of the ban on adoption introduced by Law no. 272-FZ. It further observes that where the US applicants had submitted an adoption application to a Russian court before the entry into force of Law no. 272-FZ, the application had invariably been rejected by the courts without examination on the merits on one of three grounds: either because the application had not been submitted by an authorised adoption agency, or because it had been submitted by such an agency but the functioning of such agencies in Russia had been banned as a consequence of Law no. 272-FZ, or because the US applicants were not eligible to adopt a Russian child pursuant to Law no. 272-FZ. In cases where the US applicants appealed, the higher courts had invariably upheld the reasoning of the lower courts. 349. Accordingly, the Court finds that after the entry into force of Law no. 272-FZ, the US applicants had no possibility of having their adoption applications examined on the merits by a Russian court, and that any such application would have been futile on account of the ban on adoption introduced in the domestic legislation. 350. For this reason the Court dismisses the Government ’ s objection with regard to those cases where the adoption application was submitted to a Russian court without the assistance of an authorised adoption agency, where the US applicants did not submit an adoption application to a Russian court, where such an application was submitted after the entry into force of Law no. 272-FZ, and where the applicants had no recourse to further remedies. 351. As regards cases nos. 23890/13 and 37173/13, where the US applicants did not complete certain requisite procedural steps prior to the submission of an adoption application to a court, the subject of the applicants ’ complaint is precisely the fact that the adoption procedure was brought to a halt by the introduction of the adoption ban and they were therefore unable to complete the process. Accordingly, the Government ’ s objection should be dismissed in this part as well. C. The right to petition the Court on behalf of the children 1. The parties ’ submissions 352. The Government maintained that the US applicants had no right to lodge applications on behalf of the children they sought to adopt with the Court. In the first place, they argued that under Article 52 of the Code of Civil Procedure, persons who do not possess full legal capacity can be represented before a court by their parents, adoptive parents, guardians, trustees or other persons so authorised by federal law. Pursuant to Article 35 § 4 of the Civil Code and Article 155.2 § 2 of the Family Code, protection of the interests of orphaned children and children left without parental care is the responsibility of the competent institutions into whose care the children have been placed. As the adoption procedure had not been completed in any of the cases at hand, the US applicants had not acquired the right to act as the children ’ s representatives. In the Government ’ s view, their attempt to introduce complaints before the Court on behalf of the children they sought to adopt constituted an interference with the competence of the organisations who are the children ’ s only representatives, as well as with the sovereignty and public order of the Russian Federation and the exclusive competence of the domestic courts in the matters of international adoption. 353. The Government further referred, in particular, to the case of Moretti and Benedetti v. Italy, no. 16318/07, § 33, 27 April 2010, where the Court found that the applicants who were prospective adoptive parents had no right to bring proceedings before the Court on behalf of the child they wished to adopt. The Government also noted that in the case of S.D., D.P., and A.T. v. the United Kingdom, no. 2371 5/94, Commission decision of 20 May 1996, the Commission had decided that the application could be brought on behalf of the three child applicants by the party who had acted in the domestic child - care proceedings as the solicitor appointed to protect their interests, even though he did not have specific powers to represent them before the Court. They pointed out, however, that in that case the object of the application had been limited to complaints that the child - care proceedings had not complied with the Convention requirements and had not sought to examine the substantive decisions reached as regards the children ’ s welfare or the exercise of the local authority ’ s supervisory responsibility. In the Government ’ s opinion, the cases at hand were substantially different from the case of S.D., D.P., and A.T., cited above, precisely because they concerned substantive issues concerning the custody of the children. In their view, no bond had been formed between the US applicants and the children in question, and to hold that the former could represent the latter before the Court would conflict with the exclusive competence of the institutions into whose care the children had been placed. 354. The US applicants argued that they needed to have the right to lodge applications on behalf of the Russian children with the Court as the latters ’ interests would otherwise never be brought to the Court ’ s attention and they would be deprived of the effective protection of their rights under the Convention. The applicants pointed out that the Convention organs had acknowledged that the position of the children required careful consideration as “children must generally rely on other persons to present their claims and represent their interests and may not be of an age or capacity to authorise steps to be taken on their behalf in any real sense” and refused to apply a restrictive or technical approach with regard to the issue of the children ’ s representation (see S.D., D.P., and A.T., cited above). In particular, the Commission accepted the application lodged on the children ’ s behalf by a person who was not specifically authorised to represent them before the Convention organs, having acknowledged the “growing recognition of the vulnerability of children and the need to provide them with specific protection of their interests” (see ibid). 355. The applicants further noted that in P., C. and S. v. the United Kingdom, (dec.), no. 56547/00, 11 December 2001, the Court had also recognised that biological parents stripped of their parental rights could introduce an application before the Court on behalf of a child after the latter has been adopted by a different family. In that case the Court noted, in particular, that the key consideration was that any serious issues concerning respect for a child ’ s rights should be examined, and that “in the event of a conflict over a minor ’ s interests between a natural parent and the person appointed by the authorities to act as the child ’ s guardian, there is a danger that some of those interests will never be brought to the Court ’ s attention and that the minor will be deprived of effective protection of his rights under the Convention” (ibid). 356. The applicants also noted that in cases nos. 23890/13 and 37173/13 the child applicants had themselves authorised Ms. Moskalenko, a lawyer from the International Protection Centre, to represent their interests before the Court. 2. The Court ’ s assessment 357. The Court considers that the Government ’ s objection raises issues of family ties which are closely linked to the merits of the complaints. The Court thus finds it necessary to join the Government ’ s objection to the merits of the applicants ’ complaints. V. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 8 358. The applicants complained that pursuant to Law no. 272-FZ they had been subjected to discrimination on the grounds of the US applicants ’ nationality in breach of Article 14 of the Convention in conjunction with Article 8. Article 14 of the Convention reads as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. Admissibility 1. Arguments of the parties (a) The Government ’ s submissions 359. The Government contested the applicants ’ argument. They submitted, firstly, that the complaint was incompatible ratione materiae with the provisions of the Convention. In their view, the relations between the US applicants and the children they sought to adopt constituted neither “family life” nor “private life” within the meaning of Article 8 of the Convention and did not fall within the ambit of that provision for the purposes of Article 14 either. The Government pointed out that the right to adopt is not, as such, included among the rights guaranteed by the Convention and that Article 8 does not oblige States to grant a person the status of adoptive parent or adopted child (see X v. Belgium and Netherlands, no. 6482/74, Commission decision of 10 July 1975, and Di Lazarro v. Italy, no. 31924/96, Commission decision of 10 July 1997). Furthermore, according to the Court ’ s case law, the right to respect for family life presupposes the existence of a family and does not safeguard the mere desire to found a family (see Fretté v. France, no. 36515/97, § 32, ECHR 2002 ‑ I). 360. The Government also noted that, in deciding whether “family life” exists, the Convention organs have “taken into account whether, for instance, persons in fact lived together and whether they were financially dependent on one another” (see X and Y v. the United Kingdom, no. 7229/75, Commission decision of 15 December 1977). 361. The Government argued that the relations between the US applicants and the children they sought to adopt constituted neither “family life” nor “private life” within the meaning of Article 8 of the Convention for the following reasons: (i) not only was the adoption procedure not at an “advanced stage”, but in cases nos. 23890/13 and 3717 3 /13 it had not even been started in accordance with the Russian domestic procedure; (ii) the children were not financially dependent on the US applicants and were fully provided for by the Russian Federation; and (iii) taking into account the children ’ s age and the psycho-neurological disorders that most of them suffer from, and in view of the fact that meetings with the US applicants took place on a few days only and always in the presence of orphanage staff, it was not possible to ascertain the existence of stable psycho ‑ emotional “family links” between the children and the US applicants. The Government relied in this regard on the expert opinions of A.M., Director of the Charity Fund for Prevention of Social Orphanhood ( Благотворительный фонд профилактики социального сиротства ), and Dr G.S., the Head of the Laboratory for the Management of Social Systems for the Protection of Childhood at the Metropolitan Academy of Finance and Humanitarian Sciences ( Столичная финансово ‑ гуманитарная академия ). 362. A. M. stated, in particular, that whereas a child must have experience of a close continuous relationship with one or several adults for his or her normal development, orphanages traditionally function in a way that prevents a child ’ s emotional attachment to a particular person. For this reason children placed in orphanages express “undiscriminating friendliness” towards any adult that visits the orphanage, are eager to call anyone “mummy” and give a hug to a stranger. When such children are placed in a family, it takes a long time spent together with the adults in a family environment for the attachment to their new parents to form. For this reason, in cases where the adopted child is under seven years old, the adoptive parents are generally recommended to take time off work immediately after the adoption in order to spend it with the child, and not to place him or her in a nursery or kindergarten straight away. Accordingly, just a few days, let alone hours, spent together are clearly an insufficient basis for a child to form an attachment to an adult. This would require a much longer period and a deeper relationship. 363. Dr G.S. likewise stated that an attachment between a child and an adult cannot not be formed as a result of just a few meetings but requires a much longer and more stable contact. The enthusiastic emotional reaction of a child towards the prospective adoptive parents is a response to individual attention. She also submitted that in Russia the family was recognised as the best place for a child ’ s upbringing and that current policy was aimed at placing children in families and minimising their stay in orphanages. 364. As regards case no. 23890/13, the Government submitted that after having been involved in charity work in Chelyabinsk for a number of years, in March 2012 the US applicants had expressed their wish to adopt M.K. However, they had never started the official procedure for adoption and were not registered as prospective adoptive parents in the State databank, having failed to submit the requisite documents. Furthermore, on 23 December 2013 a panel of teachers and psychologists from the orphanage questioned M.K. with a view to establishing his feelings towards the US applicants. They found that, although M.K. had warm feelings towards the US applicants, was glad when they visited him and considered the possibility of living with them, he also talked about the fear of moving to a different country and of the possible development of his relationship with the US applicants. The panel concluded that relations between the US applicants and M.K. were friendly, but that it would be premature to describe them as family relations. 365. As regards case no. 42340/13, the Government submitted that K.S. had stayed with the US applicants from 13 December 2010 and 17 January 2011 as part of a hosting programme whose aim was to allow children left without parental care to spend holidays with a Christian family in another country. The Government referred to the case Giusto, Bornacin and V. v. Italy (dec.), no. 38972/06, 15 May 2007, where the Court found that links between the Italian applicant and a girl from Belarus they sought to adopt ‒ who had stayed with them on several occasions as part of a programme that allowed the children affected by the Chernobyl nuclear accident to spend holidays in Italy ‒ were not close enough to be considered to constitute “family life” within the meaning of Article 8. In the Government ’ s view, similar logic applied to the case at hand. 366. As regards case no. 37173/13, the Government submitted that, although the US applicants had become aware of V.B. ’ s existence in 2010, they had not applied for his adoption until 2012. Furthermore, they had never obtained a referral to visit and had consequently never met him. Therefore, there were no “family relations” between the US applicants and V.B., irrespective of the fact that he was a biological brother of G.N.Y.H., whom they had adopted earlier. (b) The applicants ’ submissions 367. The applicants argued that the relationship between the prospective adoptive parents and the children constituted “family life” within the meaning of Article 8. They pointed out that the Court did not require a biological link between the persons involved in order to find that a relationship constituted “family life”, but relied on the factual existence of close personal ties ( K. and T. v. Finland [GC], no. 25702/94, § 150, ECHR 2001 ‑ VII). Nor did the Court find that cohabitation was a requirement sine qua non for the recognition of “family ties” (see Kopf and Liberda v. Austria, no. 1598/06, § 35, 17 January 2012). Furthermore, the protection under Article 8 also extended to cover intended family life (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 62, Series A no. 94). 368. They also maintained that the Russian system of international adoption at least allows ‒ if it does not actually require ‒ the prospective adoptive parents and child to develop a relationship before the adoption is finalised through a court order. Firstly, prospective adoptive parents are encouraged to communicate with the children and send photographs so as to introduce the children to their families and homes. Then they must travel to Russia to meet the child in person and bond with him or her. During such visits, which take place over the course of several days, the child spends considerable time with the prospective adoptive parents and engages in various activities. This essentially allows the adults and the child to enjoy their first family experience. After these visits such children often feel uneasy parting from the prospective adoptive parents, fearing that they will not come back. In support of the above submissions the applicants relied on the US applicants ’ personal experience and a written statement concerning the procedure of Russian international adoption provided by Ms L., the founder and director of the Stork Adoption Agency, which specialised in international adoptions in Russia from 1994 to 2013. 369. The applicants also contested the Government ’ s submissions on several points. Firstly, they stated that the time spent together by the prospective adoptive parents and children must be sufficient to form a family bond. In particular, the duration of such visits had been agreed with the Russian authorities, who considered it sufficient to subsequently allow the Russian children to be taken to the United States. Secondly, the age of the children was not the most important factor for establishing family ties, as the existence of a family bond between a mother and a new-born child was hardly in dispute. Thirdly, they considered discriminatory the Government ’ s statement to the effect that it was impossible to ascertain the existence of “family links” between the children and the US applicants on account of the children ’ s state of health. 370. In the applicants ’ view, due to (i) the very nature of the Russian international adoption system, (ii) the advanced stage of the adoption procedure and (iii) the efforts made by the prospective adoptive parents to complete the procedure, the prospective adoptive parents and children did develop family ties amounting to family life and, therefore, their relationships deserve the protection of “family life” under Article 8 of the Convention. 371. As regards case no. 23890/13, the applicants maintain that since 2008 the US applicants and M.K. have become very close. They have always stayed in touch, and since November 2011 they have communicated with each other by different means on a daily basis. M.K. addressed the US applicants as “Mom and Dad”. In the applicants ’ view, their relationship amounts to “family life” within the meaning of Article 8. 372. As regards case no. 42430/13, the US applicants decided to adopt K.S. immediately after her five - week stay with them in December 2010 and January 2011. Afterwards they visited her in Russia on three occasions, and K.S. told other children in the orphanage that she was being visited by her family. The US applicants stayed in touch with her, phoning at least once a month with the help of an interpreter. The phone calls had to cease in September 2013, when K.S. was transferred to a different institution. They developed a close relationship over the course of almost three years which, according to the applicants, amounted to “family life” within the meaning of Article 8. They also pointed out that, in contrast to Giusto, Bornacin and V. v. Italy, cited above, the US applicants ’ adoption application had not been refused by a court, but rather the proceedings had been brought to a halt because of the entry into force of Law no. 272-FZ. 373. As regards case no. 37173/13, according to the applicants, the most important factor endorsing the existence of family life in this case was the biological link between the child applicants, G.N.Y.H. and V.B., who were brother and sister. As soon as the US applicants learned of V.B. ’ s existence, they cared about him and formed a bond with him through correspondence and phone calls. V.B. specifically expressed his wish to join his sister in the US applicants ’ family in a letter dated 30 April 2013 addressed to G.N.Y.H. In the applicants ’ view, their relationship undoubtedly amounted to “family life” within the meaning of Article 8. 374. The applicants argued that the relationships between the prospective adoptive parents and children in the present cases in any event constituted “private life” within the meaning of Article 8. They referred, in particular, to X v. Iceland, (dec.) no. 6825/74, 18 May 1976; Wakefield v. United Kingdom, (dec.) no. 15817/89, 1 October 1990; and Balogun v. the United Kingdom, no. 60286/09, § 47, 10 April 2012. 375. The applicants submitted that, even assuming that the relationships between the prospective adoptive parents and the children did not constitute “family life” or “private life” within the meaning of Article 8, they still fell within the ambit of Article 8 for the purposes of Article 14. In their view, having adopted the Bilateral Agreement on Adoption, Russia provided rights extending beyond those expressly guaranteed by the Convention. The Court held that the protection from discrimination enshrined in Article 14 extended to such additional rights, in particular in the context of adoption (see E.B. v. France [GC], no. 43546/02, §§ 47-51, 22 January 2008 ). The applicants contested the Government ’ s argument that the cases at hand were substantially different from E.B., cited above, and Fretté, cited above. They maintained that both E.B. and Fretté related to discrimination in the matter of adoption, and the fact that they concerned discrimination on the grounds of sexual orientation whilst the present cases concerned discrimination on grounds of nationality was immaterial, since the latter was likewise prohibited by the Convention (see Gaygusuz v. Austria, 16 September 1996, § 42, Reports 1996 ‑ IV). Accordingly, the present cases fell within the ambit of Article 8 for the purposes of Article 14. 2. The Court ’ s assessment 376. The Court reiterates at the outset that Article 14 merely complements the other substantive provisions of the Convention and the Protocols thereto. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions (see, among many other authorities, Sahin v. Germany [GC], no. 30943/96, § 85, ECHR 2003 ‑ VIII). The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights protected by the Convention. It is necessary ‒ but also sufficient ‒ for the facts of the case to fall “within the ambit” of one or more of the Articles of the Convention (see Abdulaziz, Cabales and Balkandali, cited above, § 71; Karlheinz Schmidt v. Germany, judgment of 18 July 1994, Series A no. 291 ‑ B, § 22; Petrovic v. Austria, judgment of 27 March 1998, Reports 1998 ‑ II, § 22; and Biao v. Denmark [GC], no. 38590/10, § 88, ECHR 2016 ). 377. Given that the applicants in the present case relied on Article 14 in conjunction with Article 8 of the Convention, the Court further reiterates that the provisions of Article 8 do not guarantee either the right to found a family or the right to adopt (see Fretté, cited above, § 32 and E.B., cited above, § 41). Neither party contests this. The right to respect for “family life” does not safeguard the mere desire to found a family; it presupposes the existence of a family (see Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31, § 31), or at the very least the potential relationship between a child born out of wedlock and his or her natural father, for example, (see Nylund v. Finland (dec.), no. 27110/95, ECHR 1999 ‑ VI ), or the relationship that arises from a genuine marriage, even if family life has not yet been fully established (see Abdulaziz, Cabales and Balkandali, cited above, § 62), or the relationship that arises from a lawful and genuine adoption (see Pini and Others v. Romania, nos. 78028/01 and 78030/01, § 148, ECHR 2004 ‑ V). 378. A right to adopt is likewise not provided for by domestic law or other international instruments such as the Convention on the Rights of the Child, adopted by the United Nations General Assembly on 20 November 1989, or the Hague Convention of 29 May 1993 on the Protection of Children and Co-operation in Respect of International Adoption (see E.B., cited above, § 42 and paragraphs 299 - 300 above). 379. At the same time, the Court has held the notion of “private life” within the meaning of Article 8 of the Convention to be a broad concept which encompasses, inter alia, the right to establish and develop relationships with other human beings (see Niemietz v. Germany, judgment of 16 December 1992, Series A no. 251 ‑ B, p. 33, § 29), the right to “personal development” (see Bensaid v. the United Kingdom, no. 44599/98, § 47, ECHR 2001 ‑ I) or the right to self-determination as such (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III). It encompasses elements such as gender identification, sexual orientation and sexual life, which fall within the personal sphere protected by Article 8 (see, for example, Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, pp. 18-19, § 41), and the right to respect for both the decisions to have and not to have a child (see Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007 ‑ I), including the right of a couple to conceive a child and to make use of medically assisted reproduction for that purpose (see S.H. and Others v. Austria ([GC], no. 57813/00, § 82, ECHR 2011. 380. The Court also reiterates that the prohibition of discrimination enshrined in Article 14 extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide. This principle is well entrenched in the Court ’ s case-law (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 40, ECHR 2005 ‑ X, and E.B., cited above, § 48). 381. The Court has previously found Article 14 applicable in the cases of E.B. and Fretté, cited above, which concerned proceedings for authorisation to adopt a child, and where the applicants claimed to have been discriminated against on the grounds of their avowed homosexuality (see E.B., cited above, §§ 41-52, and Fretté, cited above, §§ 31-33). The Court stated, in particular, that it was not called upon to rule whether the right to adopt, having regard to the fact that the Convention is a living instrument to be interpreted in the light of present-day conditions, should or should not fall within the ambit of Article 8 of the Convention taken alone, since French legislation expressly granted single persons the right to apply for authorisation to adopt and established a procedure to that end. It further held that where the State had gone beyond its obligations under Article 8 in creating such a right – a possibility open to it under Article 53 of the Convention – it could not, in applying that right, take discriminatory measures within the meaning of Article 14 (see E.B., cited above, §§ 44-49). 382. The cases at hand concern proceedings for the intercountry adoption of Russian children by the US applicants. The US applicants claimed that, as a consequence of the ban on the adoption of Russian children by United States nationals subsequently introduced into Russian law, they had been prevented from completing the adoption procedure, and had thus been discriminated against on the grounds of their nationality, resulting in a violation of the provisions of Article 14 of the Convention taken in conjunction with Article 8. 383. The Court observes that the US applicants had a genuine intention to become parents by applying for intercountry adoption at the time when Russian law still provided for such a right. Therefore, what is at issue in the present cases is the US applicants ’ decision to become parents (see S.H. and Others v. Austria, cited above, § 82), and their personal development through the role of parents that they wished to assume vis-à-vis the children. Accordingly, the Court considers that the additional right to apply for adoption and subsequently have a fair treatment of the respective application, granted by Russia at the relevant time, which the US applicants sought to exercise, falls within the general scope of Article 8 of the Convention as pertaining to their “private life”. 384. The Court further notes that in the cases in question the US applicants alleged that they had been discriminated against in the exercise of this right on the grounds of their nationality. The latter is a concept covered by Article 14 of the Convention (see Gaygusuz, cited above, § 42, and Biao, cited above, § 89 ). 385. Having regard to the foregoing, the Court finds that the facts of the cases fall within the ambit of Article 8 of the Convention, and that Article 14 of the Convention taken in conjunction with Article 8 is applicable in the present case insofar as the complaint concerns the US applicants. Accordingly, the Court dismisses the preliminary objection raised by the Government with respect to the inapplicability of Article 14 in this part. 386. The Court further observes that, insofar as the complaint is raised on behalf of the children the US applicants sought to adopt, the ban on adoption was imposed only with regard to the nationality of the prospective adoptive parents. The application of the ban was not based on any of the grounds for discrimination covered by Article 14 of the Convention with respect to the children. Accordingly, the Court finds that the complaints under this provision concern only the US applicants, and holds that Article 14 is inapplicable with regard to the complaint made on behalf of the children the US applicants sought to adopt. 387. The Court also reiterates that the preliminary objection raised by the Government with respect to the authority of the US applicants to represent the children they sought to adopt in proceedings before the Court was linked to the merits of the complaints (see paragraph 357 above). However, the Court is not called upon to decide on this issue with regard to Article 14 as it has found this provision applicable only insofar as the complaint concerns the US applicants. 388. In the light of the parties ’ submissions, the Court finds that this complaint raises complex issues of fact and law which cannot be resolved at this stage in the examination of the application but require examination on the merits. It follows that this complaint cannot be declared manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The Government ’ s submissions 389. Firstly, as regards the legal framework of the ban on adoption and the relationship between the Bilateral Agreement on Adoption and Law 272-FZ, the Government submitted the following. The Bilateral Agreement on Adoption was only applicable insofar as the domestic laws of the States Parties allowed adoption. In particular, under Article 6 § 2 of the agreement, the conditions under which a child might be adopted were to be determined by the domestic laws of the Country of Origin, that is to say, in the event of the adoption of a Russian child, by Russian laws (see paragraph 326 above). Accordingly, the Bilateral Agreement on Adoption did not contain and could not have contained provisions that would impose on the Russian Federation a duty to transfer Russian children for adoption to the United States of America. 390. The Government further submitted that, after the Russian Federation informed the United States on 1 January 2013 that it was intending to terminate the Bilateral Agreement on Adoption, the latter remained in force until 1 January 2014. Effectively, throughout 2013 the agreement applied only in the part relating to the monitoring of the children ’ s wellbeing in the adoptive families. This did not create any conflict with Law no. 272-FZ as the Bilateral Agreement on Adoption did not provide for an obligation on the part of the Russian Federation to transfer Russian children to the United States for adoption without a Russian court decision to this effect. 391. The Government also referred to the instructions that the Supreme Court issued in its letter no. 7-VS-224/13 of 22 January 2013 (see paragraph 331 above). They submitted that, although the instructions state that in cases where decisions concerning the adoption were taken by the courts before 1 January 2013 children should be transferred to the adoptive parents, in practice the instructions of the Supreme Court also meant that ‒ despite the fact that the Bilateral Agreement on Adoption remained in force for a further year ‒ Russian courts with the competence to examine adoption cases should apply Law no. 272-FZ, which provided for a ban on the adoption of Russian children by United States nationals with effect from 1 January 2013. 392. As regards compliance with Article 14 of the Convention, the Government submitted that the ban on the adoption of Russian children by US nationals did not constitute discrimination on the grounds of nationality but was based on objective and reasonable grounds and the children ’ s best interests. Referring to Schwizgebel v. Switzerland, no. 25762/07, § 93, ECHR 2010 (extracts), they argued that the State enjoyed a wide margin of appreciation in matters concerning adoption. In the Government ’ s view, the cases at hand were different from Fretté and E.B. cited above, in that those cases were concerned with discrimination on the grounds of sexual orientation, while in the cases at hand the US applicants were not discriminated against on the grounds of either their sex or their sexual orientation. Nor did they belong to any vulnerable group. Furthermore, whereas those two cases were concerned with adoption within the State of the applicants ’ nationality and residence, the cases at hand involved intercountry adoption. Unlike the applicants in Fretté and E.B., who were refused licences to be adoptive parents and consequently were not permitted to adopt a child as a matter of principle, the US applicants have the possibility of seeking to adopt a child in other States that permit intercountry adoption. 393. The Government also argued that States had wide discretion in matters of international adoption. They pointed out that some States joined the 1993 Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption as receiving States only, meaning that they had no intention of transferring children who were nationals of that State for adoption to other States. Furthermore, there were numerous instances when a particular State had suspended intercountry adoption either as a whole or with respect to particular States. The Government referred, in particular, to the ban on adoption from Cambodia introduced by the United Kingdom in 2005; the ban on intercountry adoption of Romanian children introduced by Romania in 2001, which remained in force until Romania ’ s accession to the European Union; the ban on intercountry adoption introduced by Guatemala in 2007; and the ban on adoption of Vietnamese children by the US nationals introduced by Vietnam in 2008. The Government also referred to the legislative provisions of a number of countries which either permitted intercountry adoption in exceptional cases only or made it subject to a number of strict requirements, which usually included the impossibility of finding an adoptive family for the child within the State. 394. The Government also stated that, according to information from the Ministry of Education and Science, over the course of the past three years adoptive parents from the United States had failed to provide reports about the wellbeing of 653 children adopted from Russia in 1,136 instances. Furthermore, whereas between 1992 and 2012 US nationals had adopted 61,625 Russian children, on 1 January 2013 only 37,438 adopted children from Russia had been registered with the competent Russian agencies abroad, as required under the terms of the adoption agreements. 395. The Government pointed out that States also enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law (see Stubbings and Others v. the United Kingdom, 22 October 1996, § 72, Reports, 1996 ‑ IV). They maintained that in the cases at hand the difference in treatment pursued a legitimate aim, namely the protection of children ’ s rights, and was based on objective and reasonable grounds. They submitted, in particular, that ‒ according to the assessment of some NGOs ‒ there was a hidden “epidemic of violence” in the United States in respect of minors. On average, five children died every day because of abuse or negligence perpetrated by adults (in 80% of cases biological or adoptive parents). According to a report by the Administration for Children and Families of the US Department of Health and Human Services (DHHS), in 2012 approximately 1,640 children died for the above reasons, that is to say 2. 2 children per 100,000 residents. According to the DHHS information, every year the guardianship agencies receive approximately 3,000,000 reports concerning the improper treatment of approximately 6,000,000 minors. According to information from the NGO the National Alliance for Children, in 2012 the US social services provided medical, psychological and other assistance to 286,500 child victims, of whom 198,000 were victims of sexual abuse, 49,000 were victims of physical abuse and 17,500 were victims of negligence. Sometimes it was social workers who were the perpetrators. At the same time, due to insufficient funding, the social services could not cope with the growing number of instances of cruel or negligent treatment of children. For example, an examination of the child protection social service in the State of Illinois revealed that over 6,500 reports of child abuse remained uninvestigated. The Government referred to an opinion by unnamed experts who believed the situation in other US states to be similar. 396. The Government further submitted that, although no official statistics were available, the Russian Embassy in the United States had cognisance of at least twenty children adopted from Russia who had been killed by their American adoptive parents. In the course of the previous five years Russian agencies in the United States had provided legal and other assistance to approximately 500 Russian minors who had been victims of mistreatment by their adoptive parents. Systematic violations of minors ’ rights were revealed in the course of two visits by Russian consular staff to an orphanage for adopted Russian children called the “Ranch for Kids” in the State of Montana, where 400 children were placed in 2006. At least twenty-six Russians were listed as victims of an underground internet- based market for the re-adoption of American and foreign children, an activity which was being investigated by Reuters. 397. According to the Government, one of the factors that contributes to the inadequate legal protection offered to children adopted from Russia is the discrimination inherent in the American judicial system. None of the adoptive parents responsible for the deaths of the twenty Russian children was sentenced to either capital punishment or a life sentence of the type often applied for this type of crime. Furthermore, while the average term of imprisonment of those found guilty of murdering American children was thirteen years ‒ not taking into account life sentences ‒ in respect of the adoptive parents of Russian children it was only eight and a half years, and many of them received suspended sentences or were exempted from punishment altogether. The Government provided information concerning the deaths of nineteen Russian children who had been adopted by US nationals between 1996 and 2013. In fifteen cases their adoptive parents had been found responsible for their deaths and sentenced to terms of imprisonment ranging from sixteen months to thirty-five years. In two cases they were acquitted and in two cases the investigation is still pending. According to the Government, they also obtained information about ten cases in which adopted Russian children had been subjected to abuse or cruel treatment by their US adoptive parents. Criminal proceedings against the parents had been instituted by the Russian Investigative Committee in respect of some of these cases, together with several others ‒ thirteen altogether. 398. The Government commented that the Russian authorities had encountered very poor cooperation on the part of the US authorities whenever they had been made aware of any breach of the rights of children adopted from Russia. The US authorities had regularly failed to provide prompt information concerning such incidents or to arrange access to the children for Russian consular staff and had generally been reluctant to help. Attempts to improve the situation, even during the period of two months when the Bilateral Agreement on Adoption was in force, had proved futile. In particular, certain initiatives on the part of Russia, such as setting up a database of Russian children adopted by US nationals, had been rejected by the United States. Furthermore, the United States Department of State, the interlocutor under the Bilateral Agreement on Adoption, regularly failed to provide comprehensive information in response to queries from the Russian authorities with respect to situations where harm had been caused to the life or health of Russian adopted children, citing the fact that each State had its own laws and procedures. According to the Government, the Russian authorities had not encountered such problems with any other State in the context of international adoption. Accordingly, the ban on the adoption of Russian children by US nationals did not constitute discrimination but was a measure of last resort prompted by (i) the statistics recording instances of death, injury, sexual abuse and neglect caused to Russian children adopted in the United States and (ii) lack of proper cooperation on the part of the United States that would help to ensure the safety and psychological well-being of Russian children. In the Government ’ s view, the fact that in the United States there are good medical and educational programmes for children with special needs cannot serve as a reason for renewing intercountry adoptions between Russia and the United States. They also pointed out that the provision of medical treatment to disabled children abroad is subject to regulation by other laws and has not been suspended. 399. Finally, the Government submitted that the laws and international treaties of the Russian Federation embraced the principle behind the 1989 United Nations Convention on the Rights of the Child, whereby intercountry adoption may be considered if the child cannot be placed in an adoptive family in the child ’ s country of origin (see paragraph 300 above). At the current time Russia was taking measures to encourage adoption by Russian nationals, as reflected in Presidential Decree no. 1688 of 28 December 2012 (see paragraph 321 above), and consequently to reduce the number of children in need of intercountry adoption. As a result of such efforts, in the recent years there had been a 13 % increase in the number of children placed in foster families (76% in 2001 and 86% in 2013), whereas the number of children placed in foreign families decreased ( from 29. 6% in 2009 to 18% in 2013). At the same time there had been a 100% increase in the number of Russian families willing to adopt a child. 400. The Government also provided the following information. In 2013 fifty-three Russian children were transferred to adoptive parents in the United States on the basis of court decisions delivered in 2012 prior to the entry into force of the adoption ban. As regards the request from the United States to allow the adoption procedure to continue in 259 cases where the prospective adoptive parents had allegedly met the Russian children they were seeking to adopt, the Russian Ministry of Education and Science conducted a check which produced the following results: (i) 164 children had been placed for adoption into Russian families; (ii) the biological mother ’ s parental authority was restored in respect of one child; (iii) in ninety-four cases the assertions made by the American party in the case were found not to correspond to the actual circumstances, in particular as regard contact between the prospective adoptive parents and children. The request was refused with respect to twenty-two cases, and in thirty-one cases the information provided by the American party was incomplete as it contained neither the child ’ s surname nor place of residence. (b) The applicants ’ submissions 401. The applicants argued that the ban on adoption introduced by Law no. 272-FZ was in breach of the Bilateral Agreement on Adoption. In their view, it was contrary to the agreement ’ s object and purpose as it rendered meaningless the procedural requirements enshrined therein and thereby prevented decisions being taken in the best interests of the child (see Article 3 § 1 of the Bilateral Agreement on Adoption in paragraph 326 above). 402. The applicants contended that by excluding only US nationals from its international adoption programme, the Russian authorities were subjecting US applicants to differential treatment based on their nationality in breach of the Convention. Before December 2012 the US applicants had had the right to adopt children from Russia on an equal footing with other foreigners. They had started the procedure in compliance with the requirements of both the US and Russian authorities. However, the procedure had been cut short by the introduction of the ban on adoption which only extended to the US nationals and was devoid of any objective and reasonable justification. 403. As regards the Government ’ s reference to instances involving the abuse and neglect of Russian adoptees in the United States, the applicants submitted that, apart from the fact that they constituted a tiny proportion of the overall number of Russian children adopted by US nationals in the course of the past fifteen years, the Government had provided neither any evidence that the situation was better with regard to other countries whose nationals were still eligible for adoption of Russian children, nor any information concerning the treatment of children in Russian orphanages. Furthermore, not only had most of the incidents occurred before the entry into force of the Bilateral Agreement on Adoption, but ‒ according to the Joint Statement by the Presidents of the United States of America and the Russian Federation Concerning Intercountry Adoption released on 24 June 2010 (see paragraph 322 above) ‒ they constituted the main reason for its adoption. In the applicants ’ view, the circumstances could not have changed so drastically as to compel the Russian Federation to unilaterally terminate the Bilateral Agreement on Adoption less than two months after its entry into force on account of precisely those incidents in respect of which the treaty came about. 404. As regards the Government ’ s argument that the aim behind the ban on the adoption of Russian children by US nationals was to encourage the adoption of Russian children by Russian families, the applicants submitted that Article 24 of Government Decree no. 275 of 29 March 2000 in fact allowed adoption by foreign nationals only when it appeared to be impossible to place the children into the care of Russian nationals permanently residing in Russia ( see paragraph 313 above ). The Bilateral Agreement on Adoption fully respected this provision (see Article 3 § 4 in paragraph 326 above). In the applicants ’ view, the total ban on intercountry adoptions by the US nationals could not, on the one hand, encourage Russian nationals to adopt Russian children in principle. On the other hand, even if it could, such a measure would not be sufficient for this purpose as long as other foreigners could still adopt Russian children. 405. Finally, the applicants contended that the ban on adoption, even assuming that it pursued the aims stated by the Government, constituted a disproportionate measure. By contrast to the Bilateral Agreement on Adoption, which in their view represented a reasonable and constructive response to the incidents of child abuse in adoptive families, the ban on adoption was a disproportionate reaction which ignored the best interests of the children. By excluding an entire category of potentially loving parents for children for whom no adoptive family could be found in Russia, or even by delaying the adoption pending the search for a Russian family despite the availability of a suitable American family, the ban was jeopardising the wellbeing of those children. 406. For the above reasons the applicants contended that Law no. 272 ‑ FZ and its application to the adoption proceedings in the present cases constituted discrimination on the grounds of nationality in breach of Article 14 in conjunction with Article 8. 2. The Court ’ s assessment (a) General principles 407. It is the Court ’ s established case-law that in order for an issue to arise under Article 14 there must be a difference in the treatment of individuals in relevantly similar situations. Such a difference in treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought. The Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment (see Schalk and Kopf, cited above, § 96, and Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008). However, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of nationality as compatible with the Convention (see Gaygusuz, cited above, § 42, Reports 1996 ‑ IV; Koua Poirrez v. France, no. 40892/98, § 46, ECHR 2003-X; Andrejeva v. Latvia [GC], no. 55707/00, § 87, ECHR 2009; Ponomaryovi v. Bulgaria, no. 5335/05, § 52, ECHR 2011; and Biao, cited above, § 93). (b) Whether there was a difference in treatment 408. The Court must first establish whether there was a difference in treatment based on the US applicants ’ nationality. 409. It observes that in 20 10-12, when the US applicants initiated the adoption procedure with a view to adopting a child from Russia, Russian legislation had permitted intercountry adoptions when it appeared impossible to place the child in the care of Russian nationals permanently residing in Russia or in the care of the children ’ s relatives, irrespective of the latter ’ s nationality and place of residence (see paragraphs 313 above). Russian domestic law did not contain any specific provisions concerning the eligibility of nationals of a particular State for intercountry adoption. The US nationals could thus apply for intercountry adoption of a Russian child on an equal footing with other foreign nationals. 410. Law no. 272-FZ, which entered into force on 1 January 2013, introduced a general ban on the adoption of Russian children by US nationals. The Court takes note of the applicants ’ argument that Law no. 272-FZ was in breach of the Bilateral Agreement on Adoption. It observes, however, that the agreement set up a procedure and additional safeguards for intercountry adoptions between the United States and Russia and that Article 6 § 1 of the agreement expressly provided that "[t] he adoption and transfer of a child under this Agreement shall be carried out in accordance with the domestic laws of the Parties and ... [t]he requirements for prospective adoptive parents shall be determined by the domestic laws of the Parties" (see paragraph 326 above). Therefore, the Bilateral Agreement on Adoption did not create a substantive right to intercountry adoption, which could only exist by virtue of the domestic law of the States parties. Although such a right existed in Russian law in respect of US nationals, among others, prior to 1 January 2013, the entry into force of Law no. 272-FZ on that date eradicated such a right in respect of US nationals. Therefore, unlike nationals of other States, US nationals were no longer eligible to apply for intercountry adoption of Russian children. 411. Accordingly, the Court finds that there was a difference between the treatment of US applicants and that of other foreign nationals who were candidates for intercountry adoption of Russian children on the grounds of the nationality of the former. (c) Whether the difference in treatment had objective and reasonable justification 412. The Government justified the introduction of the ban on the adoption of Russian children by US nationals with reference to two main aims. Firstly, protecting the children ’ s best interests. In this regard they referred to a number of instances of ill-treatment of Russian children adopted by US nationals and the allegedly poor cooperation on the part of the US authorities in this regard. And secondly, encouraging adoption by Russian nationals. 413. The applicants contested both the Government ’ s stated aims. As regards the first aim, they argued that the number of such incidents had been very small and that there was no evidence that the situation was any better in other States or in Russia itself. Moreover, the existence of such incidents had constituted the main reason for the Bilateral Agreement on Adoption, which had introduced additional safeguards in this respect. As regards the second aim, the applicants pointed out that adoption by foreign nationals had in any event only been allowed when it appeared to be impossible to place the child in the care of Russian nationals permanently residing in Russia ( see paragraph 313 above ). In their view, the measure in question was in any event inadequate for this purpose as other foreigners were still able to adopt Russian children. 414. The Court accepts that, in principle, protecting the children ’ s interests and encouraging adoption at national level constitute legitimate aims. It will further examine whether the measure in question constituted an adequate response to the aims stated by the Government. 415. The Court has already noted that the right to adopt is not guaranteed by either the Convention or other international legal instruments (see paragraph 378 above). Likewise, there is no obligation under international law for a State to provide for such a right. 416. The Court reiterates, however, that the prohibition of discrimination enshrined in Article 14 also applies to additional rights provided by States that fall within the general scope of any Convention right, and that where a State has gone beyond its obligations under the Convention in creating such a right it may not, in the application of that right, take discriminatory measures within the meaning of Article 14 (see paragraph 380 above). 417. In the case at hand Russia voluntarily provided for a right to intercountry adoption which extended to US nationals, among others. This right was subsequently extinguished in respect of the latter with effect from 1 January 2013. The Court does not question the authority of a State to discontinue intercountry adoptions partially or completely. It must ascertain, however, that such a measure is carried out in a manner compatible with the State ’ s obligations under the Convention. 418. As regards the aims advanced by the Government by way of justification for the measure in question, the Court notes that ‒ according to the Joint Statement by the Presidents of the United States of America and the Russian Federation Concerning Intercountry Adoption released on 24 June 2010 (see paragraph 322 above) ‒ tragic incidents involving Russian children adopted in the US for which the adoptive parents bore responsibility constituted the main reason for concluding the treaty, aimed as it was at providing stronger legal safeguards for such intercountry adoptions. It further notes that most of the incidents referred to by the Government had occurred before the entry into force of the Bilateral Agreement on Adoption, and that the total ban on adoption of Russian children by US nationals was introduced only two months after its entry into force. Although the Government maintained that the ban on adoption was "the last resort" (see paragraph 398 above), the Court observes that the Government did not produce any evidence of specific incidents occurring within that short period of time, when the additional safeguards introduced by the Bilateral Agreement on Adoption could hardly have had any impact. 419. The Court also notes that Article 3 § 4 of the Bilateral Agreement on Adoption restated the provision of the Russian law to the effect that intercountry adoption of a child from Russia was allowed only when it appeared impossible to place him or her with a family in Russia (see paragraph 326 above). 420. Accordingly, the Court retains doubts as to whether or not the ban on adoption in question constituted an adequate response to the aims stated by the Government. However, in order to decide whether or not the measure was compatible with the applicants ’ rights under Article 14 of the Convention, it must examine the way in which it was implemented. 421. The Court observes that intercountry adoption is a relatively long and complicated procedure involving multiple stages in both States concerned and requires significant time and effort on the part of the prospective adoptive parents. In cases where the procedure was initially aimed at the adoption of a particular child, or after the prospective adoptive parents had met the child at a later stage, it also involves considerable emotional resources as an attachment begins to form between the adults and the child. 422. In the cases at hand the US applicants had initiated the intercountry adoption procedure in 20 10 - 12, when it was still provided for in Russian law. By the date of introduction of the adoption ban on 1 January 2013, most US applicants had met the child they were seeking to adopt, had spent a certain amount of time with him or her, and had either submitted the adoption application to a Russian court or had completed all the prior stages of the procedure and had their file ready for submission to a court. Accordingly, these US applicants may be considered to have been in the final stages of the adoption procedure. 423. The Court notes that in cases nos. 23890/13, 37173/13 and 42340 /13 [9], the US applicants had not completed certain procedural steps in Russia that are required prior to submitting an adoption application to a court. It observes, however, firstly, that in any event these proceedings were already in progress and, secondly, that these cases involved situations where the proceedings initially concerned the adoption of a particular child: in case no. 23890/13 that of a boy whom the applicants had known for several years, in case no. 42340/13 [10] that of a girl who had previously stayed with the US applicants as part of the orphan hosting programme, and in case no. 37173/13 [11] that of the biological brother of the US applicants ’ previously adopted daughter. In all these cases the Russian authorities were aware of the adoption proceedings pending in respect of these children. 424. In the Court ’ s view, having initiated the adoption proceedings at the time when Russia expressly permitted United States nationals to apply for intercountry adoption of Russian children, the US applicants could reasonably have believed that their applications for adoption would be fairly assessed on the merits. The Court has not been provided with any cogent argument to enable it to distinguish between the US applicants who were already at different stages of the adoption proceedings when the ban on adoption was introduced. 425. The Court is mindful of the fact that adoption proceedings do not necessarily guarantee a favourable outcome as the final decision always rests with the domestic courts of the State of the child ’ s origin. However, in the cases at hand the US applicants had not received a negative decision based on the assessment of their individual circumstances by a competent court. Instead, the adoption proceedings had been brought abruptly to an end on account of the automatic ineligibility that unexpectedly came into effect over the course of ten days. No consideration was given to the interests of the children concerned, and those of them who were eventually placed in a different adoptive or foster family were obliged to stay in the orphanage for additional periods ranging from several months to several years. As at the date of this judgment, some of them are still in orphanages. 426. Accordingly, given that (i) the adoption proceedings in the cases at hand were instituted at the time when applying for intercountry adoption was expressly permitted by Russia and (ii) they were pending at the time of introduction of the ban on adoption by virtue of Law no. 272-FZ, the Court considers that the Government have failed to show that there were compelling or very weighty reasons to justify the blanket ban applied retroactively and indiscriminately to all prospective adoptive parents from the United States, irrespective of the status of the adoption proceedings already started and their individual circumstances. It thus constituted a disproportionate measure in relation to the aims stated by the Government. The Court therefore concludes that the difference in treatment was discriminatory in breach of Article 14 in conjunction with Article 8. 427. There has accordingly been a violation of Article 14 of the Convention taken in conjunction with Article 8. VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 428. The applicants complained under Article 8 of the Convention that, given that they had been at an advanced stage of the adoption procedure and a bond had already been formed between the prospective adoptive parents and the children, the introduction and application to them of the ban on the adoption of Russian children by nationals of the United States provided by Law no. 272-FZ constituted an unlawful and disproportionate interference with their family life. Article 8 of the Convention reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 429. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 430. Having regard to its finding under Article 14 of the Convention taken in conjunction with Article 8 (see paragraph 427 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 8 of the Convention taken alone. For the same reason the Court considers that it is not called upon to rule on the preliminary objection raised by the Government, which has been linked to the merits of the complaints (see paragraph 357 above). VII. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 431. The applicants further contended that most children concerned were in need of special medical care that would only be available to them in the United States and complained that depriving them of such medical assistance amounted to treatment prohibited by Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Arguments of the parties 1. The Government ’ s submissions 432. The Government contested the applicant ’ s assertion that, on average, the quality of medical care available to children with special needs in Russia was below that available in the United States. They argued that, in particular, the children whom the US applicants were seeking to adopt did not require medical treatment of a kind that is available only in the United States. According to the Government, the children in question had been receiving and continued to receive the medical support that was appropriate to their diagnosis. They submitted detailed information concerning the medical care provided to each child, including the medical tests conducted, doctors ’ examinations and the treatment prescribed, including placement in specialised medical institutions. 433. The Government further maintained that, as a general rule reflected in Article 123 of the Family Code as amended on 2 July 2013, children left without parental care are placed in orphanages only temporarily until a suitable adoptive or foster family can be found for them. Insofar as the applicants had appeared to assert that the delays in physical, cognitive, motor and speech development that some children suffered from had been due to or aggravated by their placement in an orphanage, the Government also submitted that most children placed in orphanages usually come from dysfunctional and disadvantaged families and often have serious congenital pathologies. About 30% of them have disabilities. For this reason most orphanages are specialised so as to provide better care for children with particular needs. 434. As regards the general conditions in Russian orphanages, the Government provided the following information. The maximum capacity of Russian orphanages is 79,888 children. In 2013 they accommodated 65,383 children and there was therefore no question of overcrowding. Catering in the orphanages is organised in accordance with guidelines based on nutritional value, vitamin content and a varied diet and is subject to strict control. Orphanages have both educational and medical staff. All orphanages for children with special needs have medical licences and qualified medical staff as well as the equipment required to provide the requisite medical aid. Where necessary, children are placed for treatment in an external specialist medical institution. Children with neurological pathologies attend a course of treatment annually in a neurological hospital. Providing medical care for HIV-infected children constitutes a priority. Up to 80% of children who had been treated in the Republican Hospital for Infectious Diseases, set up in 1991 in order to provide care for HIV-infected children, were placed in foster families. Those children who could not be placed in families remain in orphanages with other children to ensure they experience a normal socialisation process. In Russia there are no specialised orphanages for HIV-infected children where they would be isolated. 435. The Government also submitted that in recent years there had been significant changes in Russia ’ s policy concerning children left without parental care. Orphanages now have to provide conditions that would be closer to a family environment involving, in particular, smaller groups and reduced staff turnover. In 2013-14 the adoption procedure was simplified to ensure the speedier placement of children in families. 436. The Government thus considered as unfounded the applicants ’ allegations that the adoption ban had deprived the children in question of the requisite medical assistance and contended that there had been no violation of Article 3 in this regard. 2. The applicants ’ submissions 437. The applicants submitted that they were unable to provide specific information with regard to each child as the medical files were in the Government ’ s possession and, in their view, the information provided to the Court by the Government was incomplete. In their submissions they relied on expert statements and academic works concerning the general situation with respect to the medical treatment available to children with special needs both in the United States and in Russian orphanages. 438. In particular, in their opinion of 16 September 2014, Drs G. and McC. of the University of Pittsburgh, Pennsylvania, provided an overview of the services and treatment generally available to children with special needs in the United States. They further described deficiencies in the care available to such children in Russian orphanages, including large group sizes, an insufficient number of caregivers, their limited interaction with the children, the frequent transfers of children between different groups and caregivers, the inadequacy of the caregivers ’ training for working with children with special needs, the use of allegedly ineffective therapeutic methods, and the failure to use other probably more effective therapeutic techniques. They concluded that the adoptive parents were very likely to make use of the services available to their children in the United States, whereas similar services were generally unavailable in Russia. 439. In an opinion dated 30 June 2014 Dr Sh., Director of the International Adoption Clinic at Hasbro Children ’ s Hospital in Providence, Rhode Island, stated that the medical care provided to children in Russian orphanages varied greatly depending on the location of the orphanage. Overall he described the medical care available as “reasonably good” although not the best possible and, in his view, it fell short of that available to children with special needs in the United States. He emphasised that, in any event, no institution could be a substitute for caring parents. B. Submissions of the third-party interveners 1. Submissions of the Harvard Law School ’ s Child Advocacy Program 440. Referring to a number of academic works and, in particular, the Bucharest Early Intervention Project (BEIP), the Harvard Law School ’ s Child Advocacy Program (CAP) argued that extensive social science research regarding both domestic and international adoption over many decades had demonstrated the importance of placing children in permanent adoptive homes as early in life as possible. According to the CAP, research into early brain development has confirmed that nurturing parenting in a child ’ s early months and years is vital to normal physical, emotional and intellectual development, and delays or disruptions in providing such nurturing limit children ’ s future potential. Age at placement regularly proves to be the most important factor in predicting the success or failure of adoptive placement, with children who are placed at a younger age doing the best. 441. Referring once again to the BEIP and other academic sources, the CAP argued that institutions for children left without parental care caused devastating damage to children, affecting their intellectual and emotional capacity and potential. Russian institutions in particular are described as particularly problematic. In this regard the CAP included references to two reports, according to which in Russia “one in three children who leaves residential care becomes homeless, one in five ends up with a criminal record and up to one in ten commits suicide” [12] and “95% of Russian children who grow up in orphanages end up on the streets, unable to function, and are very likely to die shortly after their eighteenth birthdays” [13]. 442. The CAP further maintained that children with disabilities were particularly likely to grow up with limited chances for a fulfilling life of loving connection and social involvement. In order to realise their potential, access to specialised care combined with nurturing permanent parenting was essential. The United States had a long tradition of special needs adoption, comparable with that of few, if any, other countries, characterised by (i) the high number of prospective adoptive parents willing to adopt children with significant special needs; (ii) studies showing that special needs adoptions generally show the same kind of satisfying family relationships as those formed in other adoptive families; and (iii) highly developed health care services for children with special needs. 443. In the CAP ’ s view, the argument of critics of international adoption that placing children across racial or national lines must in some way be problematical has never been supported by any evidence of actual harm to the children. As the world became more global, the idea that children belonged in some essentialist sense with their racial or national groups of origin was outdated. In view of the foregoing, the CAP considered that Article 1 of the Convention created a positive obligation for the States to promote the adoption of the unparented and to place them without delay and undue disruptions with the first available permanent nurturing family. 2. The Government ’ s comments on the third-party intervention 444. The Government pointed out that the principle of the subsidiary nature of international adoption was enshrined in Article 21 of the United Nations Convention on the Rights of the Child, to which Russia was a party but the United States was not. In their view, the CAP ’ s assertion that the idea that children belonged with their racial or national groups of origin was outdated constituted an attempt to discredit the principle of the subsidiary nature of international adoption and to violate the child ’ s right to preservation of his or her identity, including nationality, as protected by Article 8 of the United Nations Convention on the Rights of the Child. 445. The Government maintained that the domestic legislation conformed fully with the United Nations Convention on the Rights of the Child, and the fact that the US applicants could not adopt the children in question did not mean that the latter would remain unparented. Steps were being taken to find adoptive families for them in Russia, and in a number of cases the children had already been adopted. 446. The Government contested the statistical information provided by the CAP with respect to Russian institutions for children left without parental care (see paragraph 441 above), which they described as unsubstantiated and untrue. They also contested the CAP ’ s reliance on the BEIP findings (see paragraph 440 above) and attached an expert opinion from M., the Head of the Bekhterev Brain Institute of the Russian Academy of Science, to the effect that brain scanning was unable to establish connections between cognitive function of the brain and the child ’ s upbringing in a biological family, adoptive family or an orphanage. 447. With respect to the CAP ’ s assertion that the United States provided conditions for adoption of children with special needs comparable with few, if any, other countries, the Government pointed out that the children involved in the present cases had received the full range of medical care appropriate to their diagnosis, which had been provided by the leading Russian clinics. They saw no reason to believe that certain types of medical care would be unavailable to them in Russia and were only available in the United States. C. Admissibility 448. The Court reiterates that the preliminary objection raised by the Government with respect to the authority of the US applicants to represent, in proceedings before the Court, the children they were seeking to adopt was linked to the merits of the complaints (see paragraph 357 above). However, the Court is not called upon to decide this issue with regard to Article 3 as the complaint is in any event inadmissible on the following grounds (see Giusto, Bornacin and V. v. Italy, cited above ). 449. The Court observes that it is not its task to rule on the alleged merits and shortcomings of the care available to children with special needs in Russia and the United States in general. Its analysis is focussed on the availability in Russia of the appropriate medical care for the children concerned and, should it be found to be unavailable, on the question of whether discontinuation of the adoption proceedings, which prevented the children from moving to the United States to live with their adoptive parents, deprived them of access to such care in breach of Article 3 of the Convention. 450. The Court notes that the information provided by the applicants is largely of a general nature. They admitted that they could not provide specific information with regard to each child and alleged that this was due to the medical files ’ being in the Government ’ s possession. 451. The Court observes, however, that the Government provided detailed information with regard to each child, describing the diagnosis, the medical tests carried out and the treatment made available, including, as applicable, consultations with medical specialists, placements in specialised institutions and any surgery carried out (see paragraph 432 above). The Court observes that the treatment in each case was prescribed by doctors who had examined and tested the children in person on many occasions, and it sees no reason to doubt the accuracy of their conclusions (see Lebedev v. Russia (dec.), no. 4493/04, 18 May 2006). 452. In these circumstances, the Court concludes that the children in question received adequate medical care in Russia. The situation complained of was therefore not such as to disclose any appearance of an issue under Article 3 of the Convention. 453. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 454. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damage 455. The applicants claimed different amounts in respect of pecuniary damage, including expenses incurred by them within the framework of the adoption procedure in the United States, as well as in certain cases travel expenses relating to the US applicants ’ trips to Russia, including meals and accommodation, and payments for translation services and the notarisation of documents. 456. The Government contested the claims, arguing that they were unsubstantiated and excessive. They submitted, in particular, that the adoption procedure in Russia is exempt from any fees or taxes. Insofar as the applicants incurred fees in the United States or paid for the services of adoption agencies, the Russian authorities could not be held responsible for such costs. Furthermore, there was no guarantee that the domestic courts would have granted the adoption applications, and it would be improper for the Court to speculate as to what possible outcome the adoption proceedings might otherwise have had. The Government further pointed out that the applicants had failed to specify how the amounts claimed by them related to the alleged violation. They also contested the amounts claimed, arguing that in many instances they were not corroborated by documents submitted by the applicants. 457. The Court has noted in paragraph 425 above that adoption proceedings do not necessarily guarantee a favourable outcome, as the final decision always rests with the domestic courts. Accordingly, prospective adoptive parents inevitably run the risk that the expenses they incur in the course of the adoption proceedings will have been to no avail. The Court cannot speculate as to what the outcome of the adoption proceedings in the cases at hand might have been if the violation of the Convention had not occurred (see, mutatis mutandis, Schmautzer v. Austria, judgment of 23 October 1995, Series A no. 328 ‑ A, § 44, and Findlay v. the United Kingdom, judgment of 25 February 1997, Reports 1997 ‑ I, § 85). Therefore, the Court finds it inappropriate to award the applicants compensation for pecuniary damage. B. Non-pecuniary damage 458. In case no. 27161/13 each applicant claimed 30,000 United States dollars (USD) in respect of non-pecuniary damage, and in cases nos. 6033/13, 8927/13, 10549/13, 12275/13, 23890/13, 26309/13, 29197/13, 32224/13, 32331/13, 32351/13, 32368/13, 37173/13, 38490/13, 42340/13 and 42403/13 each applicant claimed 20,000 euros (EUR) in respect of non ‑ pecuniary damage on account of the suffering and distress they suffered as a result of the adoption ban introduced by Law no. 272-FZ. They claimed an additional EUR 20,000 in respect of each child applicant who remained in an orphanage awaiting adoption. The US applicants submitted that after they had initiated the adoption procedure, completed its numerous stages and bonded with a particular child, they had been deprived of the possibility of finalising the adoption process and creating the family they had envisaged. Furthermore, as a result of this measure, some of the US applicants were permanently deprived of the possibility of adopting a child due to their age and/or changes in their financial situation. The US applicants ’ mental suffering was aggravated by the feeling of humiliation and injustice caused by their being subjected to a discriminatory measure on the grounds of their nationality. 459. The Government contested the claims, arguing that they were unsubstantiated and excessive. 460. The Court considers that the applicants must have suffered non ‑ pecuniary damage on account of discriminatory treatment following the institution of the adoption proceedings that cannot be sufficiently compensated for by the mere finding of a violation of Article 14 taken together with Article 8. Making its assessment on an equitable basis, it awards the following amounts in respect of non-pecuniary damage according to the table below : Application no. Name of the applicant(s) Amount 6033/13 A.J.H. and J.A.H EUR 3,000 jointly G.D.C. EUR 3,000 J.M. and A.M. EUR 3,000 jointly 8927/13 J.J. and Jn.J. EUR 3,000 jointly 10549/13 J.E.L. and A.M.L. EUR 3,000 jointly 12275/13 M.S.P. and A.N.P. EUR 3,000 jointly D.S.G. EUR 3,000 B.C. and J.W.S. EUR 3,000 jointly T.L.B.-S. EUR 3,000 S.M. and K.M. EUR 3,000 jointly Q.S. and W.S. EUR 3,000 jointly S.A.K. EUR 3,000 C.B. and T.B EUR 3,000 jointly 23890/13 M.W. and D.W. EUR 3,000 jointly 26309/13 C.Z. and S.Z. EUR 3,000 jointly 27161/13 S.S. and G.S. EUR 3,000 jointly 29197/13 C.M.S. EUR 3,000 32224/13 R.K.B. and T.B. EUR 3,000 jointly 32331/13 D.M.L. and De.M.L. EUR 3,000 jointly 32351/13 J.F.B. EUR 3,000 32368/13 L.A.P. and J.N.T. EUR 3,000 jointly 37173/13 J.W.H. and A.M.H. EUR 3,000 jointly 38490/13 A.B. EUR 3,000 42340/13 M.B. and D.B. EUR 3,000 jointly 42403/13 M.M. and J.M. EUR 3,000 jointly C. Costs and expenses 461. The applicants in cases nos. 6033/13, 8927/13, 10549/13, 12275/13, 23890/13, 26309/13, 29197/13, 32224/13, 32331/13, 32351/13, 32368/13, 37173/13, 38490/13, 42340/13 and 42403/13 jointly claimed EUR 53,000 for the costs and expenses incurred before the Court, including EUR 50,000 in respect of legal services rendered under the contract dated 10 March 2014 with the representatives, and EUR 3,00 0 for translation of documents. The applicants in case no. 2 7161/13 noted that their representative had acted pro bono and claimed USD 186.29 for postal and stationary expenses incurred in the proceedings before the Court. 462. The Government contested these claims, arguing that no credible evidence had been submitted by the applicants to support the purported lawyers ’ fees, or the costs and expenses. They pointed out, in particular, that the figure of EUR 50,000 was not indicated in the contract of 10 March 2014. Furthermore, very few applicants had submitted copies of invoices to substantiate the amounts actually paid, and from the invoices submitted it was apparent that not more than USD 600 had been paid by the applicants in each case for legal representation. The Government added that the amounts claimed were excessive. 463. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Sawicka v. Poland, no. 37645/97, § 54, 1 October 2002). Having regard to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicants the amounts indicated in the table below for costs and expenses incurred in the proceedings before the Court: Application no. Name of the applicant(s) Amount 6033/13 A.J.H. and J.A.H USD 600 G.D.C. USD 600 J.M. and A.M. USD 600 8927/13 J.J. and Jn.J. USD 600 10549/13 J.E.L. and A.M.L. USD 600 12275/13 M.S.P. and A.N.P. USD 600 D.S.G. USD 600 B.C. and J.W.S. USD 600 T.L.B.-S. USD 600 S.M. and K.M. USD 600 Q.S. and W.S. USD 600 S.A.K. USD 600 C.B. and T.B USD 600 23890/13 M.W. and D.W. USD 600 26309/13 C.Z. and S.Z. USD 600 27161/13 S.S. and G.S. USD 186.29 29197/13 C.M.S. USD 600 32224/13 R.K.B. and T.B. USD 600 32331/13 D.M.L. and De.M.L. USD 600 32351/13 J.F.B. USD 600 32368/13 L.A.P. and J.N.T. USD 600 37173/13 J.W.H. and A.M.H. USD 600 38490/13 A.B. USD 600 42340/13 M.B. and D.B. USD 600 42403/13 M.M. and J.M. USD 600 D. Default interest 464. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private life) of the Convention, finding that the adoption ban had unlawfully discriminated against the prospective parents6. In particular, this was because it had prevented the adoption of Russian children by the US applicants purely on the basis of the prospective parents’ nationality; and because such a ban had been disproportionate to the Russian Government’s stated aims, given that it had been retroactive, indiscriminate, and was applied irrespective of the status of proceedings or the individual circumstances. However, the Court found inadmissible the applicants’ complaint that the ban had caused ill-treatment of the children, as it found that they had received adequate medical treatment in Russia. |
175 | Right to life (Article 2 of the European Convention on Human Rights) | II. RELEVANT DOMESTIC LAW AND PRACTICE 18. Article 21 of the Constitution ( Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000 and 28/2001) reads as follows: “Every human being has the right to life. ... ” 19. The relevant part of the Constitutional Court Act ( Ustavni zakon o Ustavnom sudu, Official Gazette no. 29/2002) reads as follows: Section 38 “Everyone has the right to request the institution of proceedings to review the constitutionality of statutes ...” Section 55 “(1) The Constitutional Court shall quash a statute or its provisions if it finds that they are incompatible with the Constitution ... ” 20. The relevant part of Article 75 of the Criminal Code ( Kaznenei zakon Republike Hrvatske, Official Gazette nos. 110/1997, 28/1998, 50/2000, 129/2000, 51/2001, 11/2003 and 105/2004) reads as follows: “The security measure of compulsory psychiatric treatment may be imposed only as regards a perpetrator who, at the time of committing a criminal offence, suffered from significantly diminished responsibility [and] where there is a risk that the factors giving rise to the state [of diminished responsibility] might incite the future commission of a further criminal offence. The security measure of compulsory psychiatric treatment may be imposed, under the conditions set out in paragraph 1 of this Article, during the execution of a prison sentence, in lieu of a prison sentence or together with a suspended sentence. Compulsory psychiatric treatment shall be imposed for as long as the grounds for its application exist, but [it shall not] in any case exceed the prison term ... Compulsory psychiatric treatment shall not under any circumstances exceed three years. ... ” 21. The relevant provisions of the Code of Criminal Procedure ( Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002, 63/2002, 62/2003 and 115/2006) read as follows: Article 174(2) “In order to ... decide whether to request an investigation ... the State Attorney shall order the police to collect the necessary information and take other measures concerning the crime [at issue] with a view to identifying the perpetrator ... ” Article 177 “Where there is a suspicion that a criminal offence liable to public prosecution has been committed, the police shall take the necessary measures with a view to indentifying the perpetrator ... and collect all information of possible relevance for the conduct of the criminal proceedings ... ” Article 187 “(1) An investigation shall be opened against a particular individual where there is a suspicion that he or she has committed a criminal offence. (2) During the investigation evidence and information necessary for deciding whether an indictment is to be brought or the proceedings are to be discontinued shall be collected ... ” 22. The relevant provisions of the Civil Obligations Act ( Zakon o obveznim odnosima, Official Gazette no. 35/2005) read as follows: Section 19 “(1) Every legal entity and every natural person has the right to respect for their personal integrity under the conditions prescribed by this Act. (2) The right to respect for one ’ s personal integrity within the meaning of this Act includes the right to life, physical and mental health, good reputation and honour, the right to be respected, the right to respect for one ’ s name and privacy of personal and family life, freedom et alia. ... ” Section 1100 “(1) Where a court finds it justifiable, on account of the seriousness of an infringement of the right to respect for one ’ s personal integrity and the circumstances of a particular case, it shall award non-pecuniary damages, irrespective of compensation for pecuniary damage or where no such damage exists. ... ” Section 1101 “(1) In the case of death or particularly serious invalidity of a person the right to non-pecuniary damages shall vest in his or her close family members (spouse, children and parents). (2) Such damages may be awarded to the siblings, grandparents, grandchildren and a common-law spouse where these persons and the deceased permanently shared the same household. „ 23. Section 13 of the State Administration Act ( Zakon o ustrojstvu državne uprave, Official Gazette nos. 75/1993, 48/1999, 15/2000 and 59/2001) reads as follows: “The Republic of Croatia shall compensate damage caused to a citizen, legal entity or other party by unlawful or wrongful conduct of a State administration body, a body of local self-government and administration ... ” 24. The relevant part of section 186(a) of the Civil Procedure Act ( Zakon o parničnom postupku, Official Gazette nos. 53/91, 91/92, 58/93, 112/99, 88/01 and 117/03 reads as follows: “A person intending to bring a civil suit against the Republic of Croatia shall beforehand submit a request for a settlement with the competent State Attorney ’ s office. ... Where the request has been refused or no decision has been taken within three months of its submission, the person concerned may file an action with the competent court. ... ” 25. The relevant provisions of the Enforcement of Prison Sentences Act ( Zakon o izvršavanju kazne zatvora, Official Gazette nos. 128/1999 and 190/2003) read as follows: PURPOSE OF A PRISON TERM Section 2 “The main purpose of a prison term, apart from humane treatment and respect for personal integrity of a person serving a prison term, ... is development of his or her capacity for life after release in accordance with the laws and general customs of society.” PREPARATION FOR RELEASE AND ASSISTANCE AFTER THE RELEASE Section 13 “During the enforcement of a prison sentence a penitentiary or prison shall, together with the institutions and other legal entities in charge of assistance after release, ensure preparation of a prisoner for his or her release [from prison].” INDIVIDUAL PRGRAMME FOR THE ENFORCEMENT OF A PRISON TERM Section 69 (1) The individual programme for the enforcement of a prison term (hereinafter “the enforcement programme”) consists of a combination of pedagogical, working, leisure, health, psychological and safety acts and measures aimed at organising the time spent during the prison term according to the character traits and needs of a prisoner and the type and possibilities of a particular penitentiary or prison. The enforcement programme shall be designed with a view to fulfilling the purposes of a prison term under section 7 of this Act. (2) The enforcement programme shall be designed by a prison governor on the proposal of a penitentiary or a prison ’ s expert team ... (3) The enforcement programme shall contain information on ... special procedures ( ... psychological and psychiatric assistance ... special security measures ... ) ... ” HEALTH PROTECTION Section 103 “(1) Inmates shall be provided with medical treatment and regular care for their physical and mental health ... ” 26. Section 22 of the State Attorney Act ( Zakon o državnom odvjetništvu, Official Gazette 75/1995) reads as follows: “(1) The State Attorney ’ s Office is entitled to compensation for the costs of representation before the courts and other competent bodies according to the regulations on lawyers ’ fees. (2) Funds obtained as the costs of representation are paid into the State ’ s budget.” 27. As regards civil proceedings for damages the Government submitted several decisions of the Supreme Court expressing its opinion on the responsibility of the State for damage caused by the administrative authorities. The relevant parts of decision no. Rev 2203/1991-2 of 30 December 1991 read as follows: “The employees of Open Penitentiary V.-P. and of L. State Prison caused the damage in question by their unlawful and wrongful conduct in allowing D.P. to escape from the penitentiary instead of preventing his escape by the use of force if necessary (sections 175 and 176, paragraph 140, of the Enforcement of Penal and Misdemeanours Sanctions Act, Official Gazette nos. 21/74 and 39/74). Enforcement of a sentence, and in particular the enforcement of a prison term, fulfils the purpose of punishment defined by law which includes, inter alia, preventing a perpetrator from committing [a further] criminal offence by restricting his freedom of movement. In the circumstances of the present case the employees of the above-mentioned penitentiaries, for whose conduct the defendant [the State] is liable, failed to [prevent the escape] of a convict who repeated the same act of violence (in even more serious circumstances) as the criminal offence for which he had been convicted and placed in prison ... The fact that he committed a criminal offence of robbery and caused damage to the plaintiff and numerous other persons by acts of violence during his escape shows that he is a danger to society who should have been prevented from committing criminal offences by being kept in prison. The same transpires from his previous criminal record ... Therefore, in the case at issue there is a legally relevant causal link between the unlawful and wrongful conduct of the defendant ’ s employees, the escape and the harmful act ... which all lead to the defendant ’ s liability.” The relevant part of decision no. Rev 186/04-2 of 10 January 2006 reads as follows: “Pursuant to section 13 of the State Administration Act (Official Gazette nos. 75/93, 48/99, 15/00 and 59/01) the Republic of Croatia is obliged to compensate damage resulting from unlawful or wrongful conduct of the State administration bodies, bodies of local self-government and administration ... ... Conduct or an omission that is against a law or any other regulation amounts to an unlawful act ... if there exists an intent to cause damage to the rights or interests of third persons or acceptance of that outcome .” 28. The applicants submitted several decisions of the Supreme Court concerning the same issue. The relevant part of decision no. Rev 713/1998 of 13 September 2000 reads as follows: “Conduct or an omission that is against a law or any other regulation amounts to an unlawful act only if there exists an intent to cause damage to the rights and interests of a third person or acceptance of that outcome. The same is true in respect of conduct or a failure to act, contrary to the common or prescribed manner of acting, amounting to wrongful conduct.” The relevant part of decision no. Rev 218/04-2 of 27 October 2004 reads as follows: “The plaintiffs ’ claim for damages against the Republic of Croatia is justified only where the statutory conditions have been fulfilled, namely, that the damage is a consequence of unlawful or wrongful conduct of a person or a body performing [civil] service. Unlawful conduct means acting against a law or any other regulation or an omission to apply a regulation with intent to cause harm to a third person or acceptance of that outcome. Wrongful conduct means an act or a failure to act that is contrary to the common or prescribed manner of acting and from which it can be concluded that there has been an intent to cause harm to the rights and interests of a third person or acceptance of that outcome.” The relevant part of decision no. Rev 730/04-2 of 16 November 2005 reads as follows: “ ... unlawful conduct means acting against the law or omitting to apply statutory provisions with intent to cause damage to a third person or acceptance of that outcome. Wrongful conduct means an act or a failure to act, contrary to the common or prescribed manner of acting ... The burden of proof is on the plaintiff. ... The plaintiff claiming damages is obliged to prove the existence of damage, a harmful act by the defendant (in this case unlawful or wrongful conduct of the State administration bodies within the meaning of section 13 of the State Administration Act) and a causal link between the harmful act and the actual damage.” The relevant part of decision no. Rev 257/06-2 of 18 May 2006 reads as follows: “The purpose of section 13 of the State Administration Act is [to make] the State liable for the damage caused by consciously acting against the law with intent to cause damage to another.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 29. The applicants made a twofold complaint under Article 2 of the Convention. They contended firstly that the State had failed to comply with their positive obligations in order to prevent the deaths of M.T. and V.T. and secondly that the State had failed to conduct a thorough investigation into the possible responsibility of their agents for the deaths of M.T. and V.T. Article 2 of the Convention reads as follows: “1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A. Admissibility The parties ’ submissions 30. The Government argued that the applicants had several remedies at their disposal which they had failed to exhaust. Firstly, they had failed to lodge a criminal complaint against any person they held responsible for the deaths of M.T. and V.T., which would have enabled them to propose evidence and investigating measures to be taken. Had they done so, the competent State Attorney ’ s Office would have issued a reasoned decision on their complaint. Even if such a complaint had been dismissed, the applicants could have then continued the criminal prosecution of their own motion. 31. Secondly, the applicants could have brought a civil action for compensation against the State under sections 1100 and 1101 of the Civil Obligations Act and under the Convention, which was directly applicable in Croatia. 32. Lastly, the fact that the State ’ s liability existed only where a causal link between a harmful act and the actual damage was proven was a universally accepted principle of liability for damages that was not specific to the Croatian legal system. 33. The applicants contended that under domestic law the third to fifth applicants had no right to seek compensation for the death of V.T. A civil action for compensation from the State, which was a possibility open to all the applicants in respect of the death of M.T. and to the first and second applicants in respect of the death of V.T, would have had no prospect of success. That was because the requirements established by the Supreme Court, namely, that the acts of the responsible authorities had to be unlawful and that they had to have acted with intent to cause damage to third persons or at least acceptance of that outcome would have been impossible to prove. Furthermore, if they had lost they would have had to bear the costs of representation of the State in the proceedings by a State Attorney ’ s Office, which was entitled to the fees set out in the Scale of Lawyers ’ Fees. According to the standards of the Supreme Court ’ s case-law, the applicants could have claimed about HRK 800,000 in compensation. As the costs of representation of the State were to be assessed according to the value of the claim, they would have amounted to about HRK 80,000. Thus they would have exceeded the applicants ’ joint annual income, which was about HRK 14,000 since the only member of their family living in the same household who had an income was the first applicant. In view of the fact that their possible claim had no prospect of success, the risk of having to bear the State Attorney ’ s fees, from which they had no right of exemption, was very high. Bearing these costs would have financially ruined them, which was why they had not lodged a civil action against the State. 34. As to the Government ’ s objection that they should have lodged a criminal complaint against the persons they considered responsible for the deaths of their close relatives, the applicants argued that all information known to them had also been known to the relevant State authorities and that in those circumstances it had been incumbent on the authorities to take appropriate steps to investigate the deaths of M.T. and V.T. The Court ’ s assessment 35. The Court points out that the purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. The rule of exhaustion of domestic remedies referred to in Article 35 of the Convention requires that normal recourse should be had by an applicant only to remedies that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see Selmouni v. France [GC], no. 25803/94, §§ 74 and 75, ECHR 1999 ‑ V). 36. Article 35 provides for a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the complaints invoked and offered reasonable prospects of success (see Akdivar and Others v. Turkey, 16 September 1996, Reports of Judgments and Decisions 1996 ‑ IV, § 68). 37. The Court would emphasise that the application of this rule must make due allowance for the context. Accordingly, it has recognised that Article 35 must be applied with some degree of flexibility and without excessive formalism (see Cardot v. France, 19 March 1991, Series A no. 200, § 34). It has further recognised that the rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether the rule has been observed, it is essential to have regard to the particular circumstances of the individual case (see Van Oosterwijck v. Belgium, 6 November 1980, Series A no. 40, § 35). This means, amongst other things, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (see Akdivar and Others, cited above, § 69). 38. In respect of a substantive complaint of failure of the State to take adequate positive measures to protect a person ’ s life in violation of Article 2, the possibility of obtaining compensation for the death of a person will generally, and in normal circumstances, constitute an adequate and sufficient remedy (see, E. and Others v. the United Kingdom, no. 33218/96, § 110 and, mutatis mutandis, Caraher v. the United Kingdom (dec.), no. 24520/94, ECHR 2000 ‑ I). 39. The Court notes at the outset that the newly introduced sections 1100 and 1101 of the Civil Obligations Act, which entered into force on 1 January 2006, provide a possibility of seeking compensation in connection with the death of one ’ s spouse, child or parent and that compensation may also be awarded to the siblings, grandparents, grandchildren and a common-law spouse where these persons and the deceased permanently shared the same household. The Court therefore finds that under domestic law the third to fifth applicants, being her aunts and uncles, have no right of compensation for the killing of V.T. It follows that the Government ’ s objection in respect of the third to fifth applicants in connection with the death of V.T. must be rejected. 40. As to the first and second applicants ’ right of compensation for the deaths of both M.T. and V.T. and the third to fifth applicants ’ right of compensation for the death of M.T., the Court notes that sections 1100 and 1101 of the Civil Obligations Act do provide a legal ground for seeking compensation from the State. The Court will now examine whether the Government have shown that a civil action for compensation against the State is a remedy that has to be exhausted in the circumstances of the present case. 41. The Court notes that after M.M. had killed M.T. and V.T. no responsibility of the State officials involved was established in respect of the relevant authorities ’ duty to protect the lives of the victims. In these circumstances it might be said that a civil action for damages against the State does not have much prospect of success, in particular in view of the requirement under domestic law and practice that the State ’ s liability be engaged only in the event of unlawful conduct on the part of the authorities or unlawful failure to act and intent on the part of the authorities to cause damage to a third person or acceptance of that outcome. 42. However, and notwithstanding the chances of success of a potential civil action concerning the lawfulness of the acts of the relevant authorities, the Court notes that in any event the issue here is not a question of whether the authorities acted unlawfully or whether there was any individual responsibility of a State official on whatever grounds. Much more broadly, the central question of the present case is the alleged deficiencies of the national system for the protection of the lives of others from acts of dangerous criminals who have been identified as such by the relevant authorities and the treatment of such individuals, including the legal framework within which the competent authorities are to operate and the mechanisms provided for. In this connection the Court notes that the Government have not shown that these issues, and in particular the applicants ’ complaint under Article 2 of the Convention related to the insufficiencies of domestic law and practice preceding the deaths of M.T. and V.T., could be examined in any proceedings relied on by the Government. 43. As to the Government ’ s argument that after the killings of M.T. and V.T. the applicants could also have lodged a criminal complaint, the Court notes that a step in that respect was taken by an investigating judge of the Varaždin County Court when, on 17 August 2006, he ordered a search of a flat and vehicle of a certain M.G. who had been suspected of having procured weapons to M.M. and by the Čakovec State Attorney ’ s Office when, on 28 November 2006, it asked the Međimurje Police Department to collect all information concerning M.M. ’ s psychiatric treatment while he had been serving his prison sentence. However, those steps did not lead to any criminal or other proceedings against any of the persons involved. The Court cannot see how an additional criminal complaint about the same issues lodged by the applicants might have led to a different outcome. In this connection the Court reiterates that in cases concerning a death in circumstances that might give rise to the State ’ s responsibility the authorities must act of their own motion once the matter has come to their attention. They cannot leave it to the initiative of the next-of-kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures (see, for example, McKerr v. the United Kingdom, no. 28883/95, § 111, ECHR 2001-III, and Slimani v. France, no. 57671/00, § 29, ECHR 2004 ‑ IX (extracts) ). 44. It follows that the remedies proposed by the Government did not have to be exhausted. In making this conclusion, the Court has taken into consideration the specific circumstances of the present case as well as the fact that a right as fundamental as the right to life is at stake (see, among other authorities, McCann and Others v. the United Kingdom, 27 September 1995, Series A no. 324, § 147) and that the Convention is intended to guarantee rights that are not theoretical or illusory, but rights that are practical and effective (see, for example, Matthews v. the United Kingdom [GC], no. 24833/94, § 34, ECHR 1999-I). Accordingly, the Government ’ s objection has to be rejected. 45. The Court finds that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits The parties ’ arguments 46. The applicants complained that the State had failed to comply with their positive obligation because, although it had been well known to the authorities that M.M. ’ s threats against M.T. and V.T. had been serious, they had failed to order and carry out a search of his premises and vehicle in the course of the first set of criminal proceedings against him in which he had been charged with making serious threats against MT. and V.T. They argued that, before his release from prison, the relevant authorities had failed to properly administer his psychiatric treatment and evaluate his mental condition and the likelihood that he would carry out his threats. They alleged insufficiencies of the regulation concerning the enforcement of a prison term and also maintained that the domestic law was defective because an accused found guilty of a crime could be given compulsory psychiatric treatment only for the duration of his or her prison term. The applicants also complained that the domestic authorities had failed to conduct a proper and thorough investigation into the State ’ s possible responsibility for the deaths of their close relatives. 47. The Government argued that the domestic authorities had taken M.M. ’ s threats seriously and had for that reason remanded him in custody, where he had stayed during the whole trial. He had been sentenced to a prison term commensurate with the seriousness of his conviction and within the statutory framework of the offence he had been charged with. Furthermore, his compulsory psychiatric treatment had been ordered during his prison term, as provided for under domestic law. 48. As to their procedural obligation under Article 2, the Government contended that the competent State Attorney ’ s Office had ordered the police to collect relevant information concerning the deaths of M.T. and V.T. The police had, inter alia, interviewed the prison governor, and this had shown how the measure of compulsory psychiatric treatment had been administered. The State Attorney ’ s Office had not found that there had been any failure on the part of the prison authorities amounting to a criminal offence. As to their participation in the investigation, the applicants had failed to lodge a separate criminal complaint and had not shown that they had ever sought to be informed about the investigation. The Court ’ s assessment a. Substantive aspect of Article 2 of the Convention General principles 49. The Court reiterates that Article 2 enjoins the State to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, Reports of Judgments and Decisions 1998-III, § 36). This involves a primary duty on the State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005-VII). 50. It also extends in appropriate circumstances to a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the Court is also careful, when considering positive obligations, not to interpret Article 2 in such a way as to impose an impossible or disproportionate burden on authorities (see Osman v. the United Kingdom, 28 October 1998, Reports of Judgments and Decisions 1998 ‑ VIII, § 116). Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. 51. A positive obligation will arise where it has been established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see Osman, cited above, § 116; Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 55, ECHR 2002-III; and Bromiley v. the United Kingdom (dec.), no. 33747/96, 23 November 1999). Application of these principles to the present case 52. The Court has examined firstly whether the relevant authorities were or should have been aware that M.M. presented a risk for the lives of M.T. and V.T. The Court notes that the competent State Attorney ’ s Office instituted criminal proceedings against M.M. on charges of making serious threats against M.T. and V.T., which resulted in M.M. being found guilty as charged and sentenced to five months ’ imprisonment. The domestic courts established that M.M. had been making threats against M.T. and V.T. for a long period of time, namely, from July to December 2005. They found further that he had not refrained from repeating those threats both before the employees of the Čakovec Welfare Centre and the police, including his announcement that he was going to blow M.T. and V.T. up with a bomb on the latter ’ s first birthday, which was 1 March 2006. He repeatedly claimed that he was in possession of a bomb and could well have had other weapons. That these threats were taken by the domestic authorities as being meant seriously is shown by the fact that M.M. was sentenced to an unconditional prison term. Furthermore, a psychiatric examination of M.M. carried out in the course of the criminal proceedings established that he was suffering from a mixed personality disorder and was in need of compulsory psychiatric treatment in order to develop the ability to cope with difficult situations in life in a more constructive manner. It was established further that there was a danger that he would repeat the same or similar offences, which appears crucially important in the present case. 53. The above findings of the domestic courts and the conclusions of the psychiatric examination undoubtedly show that the domestic authorities were aware that the threats made against the lives of M.T. and V.T. were serious and that all reasonable steps should have been taken in order to protect them from those threats. The Court will now examine whether the relevant authorities took all steps reasonable in the circumstances of the present case to protect the lives of M.T. and V.T. 54. The Court firstly notes that although M.M. had mentioned on several occasions that he had a bomb, and could well have had other weapons, no search of his premises and vehicle was ordered in the course of the initial criminal proceedings against him. No such search was ordered and carried out, although the relevant authorities had been aware of his above statements as early as 4 January 2006, when the Čakovec Social Welfare Centre filed a report containing such allegations with the Međimurje Police Department. 55. The Court notes further that a psychiatric report drawn up for the purposes of the criminal proceedings against M.M. stressed the need for continued psychiatric treatment in order to help him develop the capacity for coping with difficult situations in life in a more constructive manner. When the decision ordering his compulsory psychiatric treatment became final and enforceable following the adoption of the appellate court ’ s judgment of 28 April 2006, M.M. had already spent two months and twenty-five days in detention. Since he was sentenced to five months ’ imprisonment, it follows that his psychiatric treatment could only have lasted two months and five days before his release from prison. The Court considers that in such a short period M.M. ’ s psychiatric problems, in view of their gravity as established in the psychiatric examination carried out during the criminal proceedings against him, could hardly have been addressed at all. 56. Moreover, the Government have failed to show that the compulsory psychiatric treatment ordered in respect of M.M. during his prison term was actually and properly administered. The documents submitted show that the treatment of M.M. in prison consisted of conversational sessions with the prison staff, none of whom was a psychiatrist. Furthermore, the Government have failed to show that an individual programme for the execution of M.M. ’ s prison term was designed by the Varaždin prison governor as required under section 69 of the Enforcement of Prison Sentences Act. Such individual programme in respect of M.M. takes on additional importance in view of the fact that his prison term was combined with a measure as significant as compulsory psychiatric treatment ordered by the domestic courts in relation to the serious death threats he had made in order to help him develop the capacity to cope with difficult situations in life in a more constructive manner. 57. The Court notes further that the regulation concerning the enforcement of a measure of compulsory psychiatric treatment, namely the relevant provisions of the Enforcement of Prison Sentences Act, is of a very general nature. In the Court ’ s view, the present case shows that these general rules do not properly address the issue of enforcement of obligatory psychiatric treatment as a security measure, thus leaving it completely to the discretion of the prison authorities to decide how to act. However, the Court considers that such regulations need to be sufficient in order to ensure that the purpose of criminal sanctions is properly satisfied. In the present case neither the regulation on the matter nor the court ’ s judgment ordering M.M. ’ s compulsory psychiatric treatment provided sufficient details on the administration of this treatment 58. Since no adequate psychiatric treatment was provided to M.M. in the prison there was also no assessment of his condition immediately prior to his release from prison with a view to assessing the risk that, once at large, he might carry out his previous threats against the lives of M.T. and V.T. The Court finds such a failure particularly striking given that his threats had been taken seriously by the courts and that the prior psychiatric report expressly stated that there was a strong likelihood that he might repeat the same or similar offences. In this connection the Court notes that the appellate court established in its judgment of 28 April 2006 that M.M. had not shown any self-criticism as regards his acts or any remorse for what he had said. Furthermore, the Court notes that M.M. said on several occasions that he had meant to kill M.T. and V.T. on the latter ’ s first birthday which was on 1 March 2006. In view of the fact that M.M. spent that day in prison, a fresh assessment of the threat he posed to the lives of M.T. and V.T. appears to have been all the more necessary before his final release. 59. The Court also notes that the first instance court ordered a measure of compulsory psychiatric treatment against M.M. during his imprisonment and afterwards as necessary as recommended by the psychiatrist (see § 7 above). However, the appellate court reduced that measure to the duration of his prison term since under Croatian law there is no possibility of extending compulsory psychiatric treatment beyond a prison term for those in need of such treatment. 60. In view of the above the Court considers that no adequate measures were taken to diminish the likelihood of M.M. to carry out his threats upon his release from prison (see Osman v. the United Kingdom, cited above, § 116). 61. The facts of this case, as established above, are sufficient to enable the Court to find a violation of the substantive aspect of Article 2 of the Convention on account of failure of the relevant domestic authorities to take all necessary and reasonable steps in the circumstances of the present case to afford protection for the lives of M.T. and V.T. b. Procedural aspect of Article 2 of the Convention 62. The Court reiterates that the obligation to protect life under Article 2 of the Convention requires that there should be some form of effective official investigation when individuals have been killed as a result of the use of force, either by State officials or private individuals (see, mutatis mutandis, McCann and Others v. the United Kingdom, cited above, § 161, and Kaya, cited above, p. 329, § 105). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life (see, mutatis mutandis, Paul and Audrey Edwards, cited above, § 69). The authorities must take the reasonable steps available to them to secure the evidence concerning the incident. Any deficiency in the investigation which undermines its ability to establish the cause of death, or identify the person or persons responsible, will risk falling foul of this standard. Whatever mode is employed, the authorities must act of their own motion once the matter has come to their attention (see, for example, mutatis mutandis, Ilhan v. Turkey [GC], no. 22277/93, ECHR 2000-VII, § 63). 63. In the present case it was clear from the beginning that the perpetrator of the acts in question was a private individual, M.M., and his responsibility in that respect has never been put into question. However, M.M. killed himself and therefore any further application of criminal law mechanisms in respect of him became futile. 64. It now remains to be established whether in the circumstances of the present case the State had a further positive obligation to investigate the criminal responsibility of any of the State officials involved. The Court firstly reiterates that although the right to have third parties prosecuted or sentenced for a criminal offence cannot be asserted independently (see Perez v. France [GC], no. 47287/99, § 70, ECHR 2004-I), the Court has stated on a number of occasions that an effective judicial system, as required by Article 2, may, and under certain circumstances must, include recourse to the criminal law. However, if the infringement of the right to life or to physical integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case. The Court has already held that in the specific sphere of medical negligence, the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged (see Vo v. France [GC], no. 53924/00, § 90, ECHR 2004 ‑ VIII; Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002 ‑ I; Lazzarini and Ghiacci v. Italy (dec.), no. 53749/00, 7 November 2002; Mastromatteo v. Italy [GC], no. 37703/97, § 90, ECHR 2002-VIII and Tarariyeva v. Russia, no. 4353/03, § 75, ECHR 2006 ‑ ... (extracts) ). The same should apply in respect of the possible responsibility of State officials for the deaths occurring as a result of their negligence. However, the applicants ’ complaint in respect of the substantive aspect of Article 2 of the Convention is not whether there was any individual responsibility of a State official on whatever grounds. The Court considers that the central complaint concentrates on the deficiencies of the national system for the protection of the lives of others from acts of dangerous criminals who have been identified as such by the relevant authorities and the treatment of such individuals, including the legal framework within which the competent authorities are to operate and the mechanisms provided for. 65. In view of the nature of the applicants ’ complaint under the substantive aspect of Article 2 of the Convention and the Court ’ s finding in this respect which imply that the procedures involved were necessarily insufficient from the standpoint of the substantive aspect of Article 2, the Court considers that there is no need for it to examine separately the applicants ’ complaint under the procedural aspect of Article 2 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 66. The applicants further complained that they had no effective remedy at their disposal in respect of their Article 2 complaints. They relied on Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 67. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 68. The Government argued that the applicants could have requested a criminal investigation into the deaths of M.T. and V.T. and also brought a civil action for compensation against the State under sections 1100 and 1101 of the Civil Obligations Act. 69. In reply to the Government ’ s observations, the applicants submitted that there had been no need for them to lodge a separate criminal complaint because the authorities had been aware of all the facts surrounding the deaths of M.T. and V.T. As to the civil remedy relied on by the Government, they argued that it was not accessible to them. 70. The Court notes at the outset that the applicant ’ s complaint under Article 13 of the Convention is linked to their complaints under Article 2 of the Convention, which are twofold (see paragraph 29 above). The Court proceeds by examining these two aspects of the alleged violation of Article 13 separately. 71. As regards the applicant ’ s complaint that they had no effective remedy in respect of their complaint concerning the procedural aspect of Article 2 of the Convention, the Court considers that in view of its findings in respect of that aspect of Article 2, no separate issue is left to be examined under Article 13 of the Convention. 72. As regards the applicant ’ s complaint that they had no effective remedy in respect of their allegations concerning the substantive violation of Article 2 of the Convention, the Court finds that what the applicants challenge is the whole system for the protection of the lives of persons from the acts of dangerous criminals, including the legal framework within which the competent national authorities are to operate. In the Court ’ s view, these are more questions of general policing in the national system for the prevention of crimes and not issues which could be properly addressed in any particular proceedings before the ordinary courts. It is not for an ordinary court to say whether the regulatory standards in operation are right or not, but to decide individual cases by applying the existing laws. 73. In this connection the Court reiterates that Article 13 does not guarantee a remedy allowing a Contracting State ’ s laws as such to be challenged before a national authority on the ground of being contrary to the Convention or equivalent domestic norms (see James and Others v. the United Kingdom, 21 February 1986, Series A no. 98, § 85 and Leander v. Sweden, 26 March 1987, Series A no. 116, § 77). In Croatia the Convention has been incorporated into the national legal system and the right to life is also guaranteed by the Constitution and there is a possibility of challenging the constitutionality of the laws before the Constitutional Court. However, the applicants ’ main complaint under the substantive aspect of Article 2 of the Convention is not that the existing laws and practices are unconstitutional but that they are deficient in view of the requirements of Article 2 of the Convention, a claim that cannot be challenged before the national courts, since it is for the legislators and politicians involved in devising general criminal policy to deal with such issues. 74. However, the role of an international court for the protection of human rights is quite different from that of the national courts and it is for the former to examine the existing standards for the protection of the lives of persons, including the legal framework of a given State. In these circumstances the Court considers that after having established the State ’ s responsibility for the deaths of M.T. and V.T. by finding a violation of the substantive aspect of Article 2 of the Convention, no separate issue needs to be examined under Article 13 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 75. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 76. Each applicant claimed 60,000 euros (EUR) in respect of non-pecuniary damage. 77. The Government deemed the applicants ’ claim for just satisfaction unsubstantiated and unfounded. 78. The Court notes that it has found that the authorities, in relation to the death of the applicants ’ two close relatives breached the Convention. In these circumstances the Court considers that the applicants must have sustained non-pecuniary damage. Ruling on an equitable basis and having regard to the awards made in comparable cases, it awards the applicants EUR 4 0,000 jointly under that head, plus any tax that may be chargeable to them. B. Costs and expenses 79. The applicants also claimed HRK 9,150 for the costs and expenses incurred before the Court. 80. The Government did not comment. 81. According to the Court ’ s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,300 for the proceedings before the Court, plus any tax that may be chargeable to the applicants. C. Default interest 82. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 2 (right to life) of the Convention, on account of the Croatian authorities’ lack of appropriate steps to prevent the deaths of the child and his mother. It observed in particular that the findings of the domestic courts and the conclusions of the psychiatric examination undoubtedly showed that the authorities had been aware that the threats made against the lives of the mother and the child were serious and that all reasonable steps should have been taken to protect them. The Court further noted several shortcomings in the authorities’ conduct: although the psychiatric report drawn up for the purposes of the criminal proceedings had stressed the need for the husband’s continued psychiatric treatment, the Croatian Government had failed to prove that such treatment had actually and properly been administered; the documents submitted showed that the husband’s treatment in prison had consisted of conversational sessions with prison staff, none of whom was a psychiatrist; neither the relevant regulations nor the court’s judgment ordering compulsory psychiatric treatment had provided sufficient details on how the treatment was to be administered; and, lastly, the husband had not been examined prior to his release from prison in order to assess whether he still posed a risk to the child and his mother. The Court therefore concluded that the relevant domestic authorities had failed to take adequate measures to protect their lives. |
740 | Noise pollution | RELEVANT LEGAL FRAMEWORK AND PRACTICE Liability in tort 93. Article 23 of the Civil Code, which entered into force in 1964, contains a non-exhaustive list of so ‑ called “ personal rights” ( prawa osobiste ). This provision states: “The personal rights of an individual, in particular health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, the inviolability of the home, scientific or artistic work, [as well as] inventions and improvements, shall be protected by the civil law, regardless of the protection laid down in other legal provisions.” 94. Article 24 paragraph 1 of the Civil Code provides: “A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of an infringement, [the person concerned] may also require the party responsible for the infringement to take the necessary steps to remove [the infringement’s] consequences ... In compliance with the principles of this Code, [the person concerned] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest.” 95. Article 144 of the Civil Code provides as follows: “In the exercise of his or her rights, an owner of immovable property shall refrain from actions which would infringe the enjoyment of adjacent immovable property beyond an average degree as defined by the socio-economic purpose of the immovable property and the local conditions.” 96. Under Article 222 § 2 of the Civil Code: “The owner shall have the right to claim restitution of his lawful position and the cessation of infringements of the law against a person who infringes his ownership other than by depriving the owner of actual control of the property in question.” 97. There is no limitation period for claims under Article 222 of the Civil Code if they relate to immovable property (Article 223 of the Civil Code). 98. Under Article 415 of the Civil Code, which provides for liability in tort, anyone who through his or her fault causes damage to another is required to repair that damage. 99. Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. The relevant part of that provision reads: “The court may award an adequate sum as pecuniary compensation for non-pecuniary damage ( krzywda ) suffered by anyone whose personal rights have been infringed. Alternatively, the person concerned, regardless of seeking any other relief that may be necessary to remove the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific public interest ...” 100. Furthermore, Article 77 § 1 of the 1997 Polish Constitution ( Konstytucja ), which entered into force on 17 October 1997, and Article 417 of the Polish Civil Code provide for the State’s liability in tort. The latter provision reads as follows: “The State Treasury, or [as the case may be] a local-government entity or other legal person responsible for exercising public authority, shall be liable for any damage ( szkoda ) caused by an unlawful act or omission connected to the exercise of public authority.” 101. Article 417 1 § 2 of the Civil Code reads as follows: “Where damage has been caused by the delivery of a final ruling or a final decision, redress for such damage may be sought after the unlawfulness [of the ruling or decision] has been established in relevant proceedings, except where otherwise provided for by law.” 102. Article 417 2 of the Civil Code provides as follows: “If any damage has been caused to a person through the lawful exercise of public authority, the victim shall claim full or partial redress and compensation, provided that the circumstances, in particular the victim’s being unfit for work or his or her difficult financial situation, call for [a ruling on] an equitable basis.” 103. Article 445 § 1 of the Civil Code, which is applicable in the event that a person suffers a physical injury or health disorder as a result of an unlawful act or omission of a State agent, reads as follows: “... [T]he court may award the injured person an adequate sum in pecuniary compensation for the damage suffered.” 104. On 23 February 2001 the Supreme Court ruled in a case concerning noise nuisance stemming from traffic on a high-speed road managed by a municipality (II CKN 394/00). The court held firstly that the obligations of local government, in the context of protecting the environment, came directly from the Act of 31 January 1980 on protecting and shaping the environment ( Ustawa o ochronie i kształtowaniu środowiska ), which was repealed on 26 October 2001. The provisions of that Act, in conjunction with the relevant civil-law provisions, therefore formed a sufficient basis for claims of a civil nature. Secondly, a local government’s tolerance of noise levels which exceeded the national norms was unlawful and could constitute an infringement of personal rights. Moreover, seeking to remove the consequences of an infringement of those rights, by constructing anti-noise screens, fell within the scope of Article 24 § 1 of the Civil Code. Cassation appeal in civil proceedings 105. Under Article 398 2 § 1 of the Civil Code, a cassation appeal is not available in respect of cases which concern pecuniary rights and in which the value of a claim is less than PLN 50,000. Environmental regulationsConstitutional protection of the environment Constitutional protection of the environment Constitutional protection of the environment 106. Article 5 of the Polish Constitution provides that Poland shall ensure the protection of the environment, being guided by the principle of sustainable development. Other relevant constitutional provisions read as follows: Article 74 “1. Public authorities shall pursue policies ensuring the ecological security of current and future generations. 2. Protection of the environment shall be the duty of public authorities. 3. Everyone shall have the right to be informed of the quality of the environment and its protection. 4. Public authorities shall support the activities of citizens to protect and improve the quality of the environment.” Article 68 (4) “Public authorities shall combat epidemic illnesses and prevent the negative health consequences of degradation of the environment.” Noise 107. The duty to protect the environment from noise is set out, defined and further regulated in, inter alia, section 112, section 2.2(a), section 3.5 and section 3.26(a) of the Act of 27 April 2001 on the protection of the environment ( Prawo ochrony środowiska, hereinafter “the Protection of the Environment Act”), which has been in force since 1 January 2002, and in the Minister for the Environment’s Ordinance on acceptable levels of noise in the environment ( Rozporządzenie w sprawie dopuszczalnych poziomów hałasu w środowisku ) in its version of: 13 May 1998, 29 July 2004 (in force from 13 August 2004 until 20 July 2007) and 14 June 2007 (in force since 20 July 2007), with further amendments. 108. The 1998 and 2004 versions of the above ordinance provided that in areas where multiple families lived, such as the one where the applicants live, the acceptable level of noise from roads was 60 dB(A) during the day and 50 dB(A) at night. The most recent version of the ordinance in question changed these parameters to 65 dB (LAeq ) and 56 dB (LAeq ) respectively. 109. Under the Act of 21 March 1985 on public roads ( Ustawa o drogach publicznych ), which has been in force since 1 October 1985, the administration of public roads and motorways is the responsibility of the Minister for Transport and the roads and motorways authority. This Act imposes various obligations on the latter authority, including an obligation to prevent adverse transformations of the environment which may be caused by the construction or maintenance of roads (section 20(13)), and an obligation to limit or stop road traffic in the event of a direct threat to people’s security (section 20(14)). Moreover, when planning a road, the authorities are duty-bound to assess the impact of the project on road security, including, inter alia, the impact on existing road networks and on the type and amount of traffic (section 24(i)(2)). 110. Poland is also bound by the European Parliament and the European Council’s Directive 2002/49/EC relating to the assessment and management of environmental noise of 25 June 2002 (“the Noise Directive”, transposed by Poland by means of an amendment to the Protection of the Environment Act dated 18 May 2005). The directive sets out noise indicators for reporting purposes which otherwise do not constitute legally binding EU ‑ wide values or targets as regards noise limits. 111. On 17 May 2017 the European Commission sent a formal notice to Poland under Article 258 of the Treaty on the Functioning of the EU, urging it to adopt measures on environmental noise, namely to establish strategic noise maps and action plans as required under the EU rules to decrease noise pollution in the EU (no. 20172068). On 18 February 2021 the European Commission referred Poland to the European Court of Justice over the country’s failure to comply with its obligations under the Noise Directive. The referral was accompanied by the following observations, in so far as relevant: “... adopting action plans was necessary to combat noise that is detrimental to human health. The Polish national law does not guarantee the establishment of action plans, which are required under the Directive regardless of whether noise limit values in the area are exceeded. Action plans for 20 major railway sections and for 290 major road sections are still missing, despite the deadline for adopting such action plans having passed. Moreover, the national law does not require action plans to include all necessary elements that are provided for in the Directive, in particular a record of public consultations, measures to preserve quiet areas and long-term strategy. Through the public consultations over the action plans the public can verify and have their say on whether authorities take adequate measures to reduce noise levels where they may be harmful, or to prevent existing levels from becoming harmful. This is why, not only action plans need to be adopted, but the national law must require all elements to be included in those action plans...” The infringement proceedings are currently ongoing. Air pollution 112. The obligation to ensure the highest air quality is set out and further regulated in, inter alia, section 85 of the Protection of the Environment Act and in the Minister for the Environment’s Ordinance on acceptable levels of certain substances in the air ... ( Rozporządzenie w sprawie dopuszczalnych poziomów niektórych substancji w powietrzu, alarmowych poziomów niektórych substancji w powietrzu oraz marginesów tolerancji dla dopuszczalnych poziomów niektórych substancji ) in its version of 6 June 2002 (in force from 12 July 2002 until 3 April 2008) and 3 March 2008 (in force from 3 April 2008 until 3 October 2012). 113. The ordinance provided that at the material time, from August 2006 until December 2008, the absolute norm for the annual average concentration of sulphur dioxide in the air was 20 μg/m 3, and the norm for nitrogen dioxide was 40 μg/m 3, subject to a margin of tolerance. The margin of tolerance was fixed at 8-20% for 2006, at 6-15% for 2007, and at 4-10 % for 2008. Under the law, such levels of nitrogen dioxide were acceptable, taking into account the need to protect human health. 114. Poland is also bound by Directive 2008/50/EC of the European Parliament and the European Council of 21 May 2008 on ambient air quality and cleaner air for Europe (which entered into force on 11 June 2008 and was transposed by Poland by means of two Acts in 2009 and 2012 and seven ordinances in 2012). This directive establishes air quality objectives, including cost-effective targets for improving human health and environmental quality up to 2020. Limit values for the protection of human health are as follows: for sulphur dioxide, 125 µg/m3 in twenty-four hours, not to be exceeded more than three times a calendar year; and for nitrogen dioxide, 40 µg/m3 in a calendar year, as of 1 January 2010 (with a 50% margin of tolerance on 19 July 1999, decreasing on 1 January 2001 and every twelve months thereafter by equal annual percentages to reach 0% by 1 January 2010; see Annex XI). Alert and information thresholds are as follows: 500 µg/m3 for sulphur dioxide, and 400 µg/m3 for nitrogen dioxide (Annex XII). 115. The earlier Council Directive 1999/30/EC relating to limit values for, inter alia, sulphur dioxide and nitrogen dioxide in ambient air (“the First Daughter Directive”, in force from 19 July 1999 until 10 June 2010, transposed by Poland by means of, inter alia, the 2001 Act on Environmental Protection and the 2002 Ordinance on acceptable levels of certain substances in the air) set out the same daily limit values and alerts thresholds for both pollutants in question (Annexes I and II). In accordance with the directive, the daily limit value for sulphur dioxide for the protection of human health (125 μg/m3) was to be applicable as of 1 January 2005. 116. Directive 2001/81/EC of the European Parliament and of the Council of 23 October 2001 on national emission ceilings for certain atmospheric pollutants (which entered into force on 27 November 2001 and which was transposed by Poland by means of a series of Acts and ordinances) sets national emission ceilings on, inter alia, annual sulphur dioxide and nitrogen oxide emissions to be attained by 2010 at the latest and to be maintained from that year (Article 4). These ceilings, per calendar year, are 1397 kilotons for sulphur dioxide and 879 kilotons for nitrogen oxide (Annex I). 117. On 25 February 2016 the European Commission sent a formal notice to Poland under Article 258 of the Treaty on the Functioning of the EU, urging it to take action to ensure good air quality and safeguard public health in relation to breaches of air pollution limits for nitrogen dioxide under the EU legislation on ambient air quality (Directive 2008/50/EC) (no. 20162010). The infringement proceedings are currently ongoing. THE LAW JOINDER OF THE APPLICATIONS 118. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 119. The applicants complained under Article 8 of the Convention that by routing heavy traffic from the A2 motorway via the N14 road, the authorities had breached their right to the peaceful enjoyment of their private and family life and their home, as their house was situated very near to the road. 120. Article 8 of the Convention reads as follows: “1. Everyone has the right to respect for his private and family life, his home .... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Admissibility 121. The Government raised a preliminary objection, arguing that the case was inadmissible for non-exhaustion of domestic remedies, as the applicants had not lodged a cassation appeal with the Supreme Court. In their view, the fact that B.W.’s cassation appeal had not been examined on the merits did not mean that the applicants’ own cassation appeal would not have had any prospects of success. 122. The applicants submitted that a cassation appeal had not been available in their cases, because the value of each of their claims had been below the statutory threshold. 123. The Court observes that in the civil proceedings in question, each applicant sought compensation of PLN 15,000 (see paragraph 74 above). That amount was below the threshold of Article 398 2 of the Civil Code (see paragraph 104 above). It follows that a cassation appeal was clearly not available to any of these applicants. In these circumstances, the Government’s argument relating to the cassation appeal lodged by B.W., who sought compensation in an amount higher than the statutory limit (see paragraph 75 above), has no relevance for the present case. 124. The Government’s preliminary objection of non-exhaustion of domestic remedies must therefore be rejected. 125. The Court further notes that the application is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions (a) The applicants 126. The applicants complained under Article 8 of the Convention that by routing heavy traffic from the A2 motorway via the N14 road, which was not equipped for that purpose, the authorities had breached their right to the peaceful enjoyment of their private and family life and their home, as their house was situated very near to the road. 127. The applicants did not call into question the policy of expanding the road network in Poland. They argued, however, that any such development should be balanced, in that it should not put an excessive burden on the residents concerned. The increased traffic on the N14 road, especially at night, had, for a number of years, hampered the applicants’ quiet enjoyment of their homes and disturbed their sleep. The vibrations from the road traffic had also caused cracks to appear in the walls of many Stryków buildings. 128. The applicants argued that the infringement of their Article 8 rights had been caused, firstly, by the authorities’ negligent planning of the construction of the motorway, which had disregarded the obligation to ensure the protection of nearby residential areas. 129. In that regard, the applicants submitted that the authorities had already faced a similar situation when they had opened another section of the A2 motorway. They also argued that the lack of adequate planning had been deliberate, with the authorities wishing to curb expenditure. That said, the initial savings as regards investment had not been justified, because the State had not been facing any financial crisis, and because the State had ultimately incurred higher costs as a result of the subsequent ex post facto studies and reorganisation of the traffic. 130. In the applicants’ opinion, the fact that the problem had resulted from the shortcomings in the original planning of the project was proven by the authorities’ ultimate success in greatly reducing truck traffic on the N14 road. 131. Secondly, the applicants argued that the infringement of their rights had been caused by the inadequate response to the resulting situation. The applicants essentially complained that the authorities had failed to take timely, adequate and sufficient traffic mitigation measures. In particular, they had not created good-quality alternative roads, and they had not effectively eliminated the heavy night-time traffic on the N14 road. (b) The Government 132. The Government acknowledged that, in the circumstances of the case, the nuisance caused to the applicants by the operation of the motorway had reached the minimum level of seriousness and thus fell within the ambit of Article 8 of the Convention. 133. That said, the domestic authorities had complied with their positive obligations stemming from that provision. 134. In respect of the planning of the motorway, the Government submitted that the authorities had struck a fair balance between the competing interests of the individual applicants and the community as a whole. 135. The operation of the A2 motorway was legal and pursued an important public interest, namely the facilitation and acceleration of domestic road transport, as well as the bringing of economic and social development to the country. 136. Long before the opening of the A2 motorway, the N14 had been a public national road connecting major cities. Its so-called design speed limits, which in built-up areas had been 60 and 70 km, had remained the same when the motorway traffic had been redirected down it. 137. The traffic on the N14 after the motorway had been linked to it had been largely unpredictable. The authorities had only been able to monitor the situation and react to it ex post facto, which was what they had done. 138. The nuisance which the applicants had had to endure had only been temporary, lasting only two and a half years. In addition, the levels of noise disturbance had been reduced six months into the operation of the motorway, when the road traffic to Warsaw had been reorganised. As a result of those measures, the inconvenience caused by the traffic had been alleviated by December 2008. The authorities had thus reacted promptly and adequately to the situation in Stryków, of which they had become aware not only through the complaints of the population concerned, but also through their own monitoring. The authorities’ reaction to the traffic problem had been positively assessed by the expert appointed by the court in the course of the applicants’ civil proceedings. 139. In respect of the response to the traffic nuisance, the Government argued that the local authorities had taken all necessary measures aimed at eliminating the inconvenience caused by heavy traffic in Stryków. 140. As early as August 2006, the authorities had come up with a plan to connect the A2 and A1 motorways outside of Stryków. The connecting road (the 1.7-km extension) had become operational on 22 December 2008 and the traffic made up of heavy vehicles had dropped significantly. 141. Also in August 2006, the roads and motorways authority had drawn up a plan aimed at encouraging motorway users to make a detour around Stryków by taking alternative roads to Warsaw. That measure had been put in place in stages and had become fully operational in December 2006. The measure had reduced traffic levels through Stryków almost to those which had existed before the opening of the A2 motorway. 142. In October 2006 the surface of part of the N14 (namely Warszawska Street) in Stryków had been renovated. 143. The Government also submitted that the residents in the area concerned, who had been regularly informed of the mitigation measures in question, had been free to lodge complaints and applications in respect of the operation of the motorway or the initial investment. The applicants had not made use of that opportunity. 144. The Government also commented that the increase in traffic in Stryków might well have been caused by factors other than the A2 motorway. In particular, the Stryków Municipality, which was conveniently situated in Central Poland, had been developing rapidly. A number of warehouses and logistics centres had been erected in the area of Stryków and nearby Smolice. In 2017 Stryków had been ranked as the third-best developing district in a local sustainable development programme. In that regard, the Government relied on the observations made by the expert who had been appointed by the court in the course of the applicants’ civil proceedings. 145. The Government noted that all the mitigation measures taken by the authorities had been assessed as adequate, reasonable and prompt. The applicants had not shown that the authorities had at some point refused to put in place any particular measures which might have been suggested by the population concerned. 146. The Government observed that the applicants had not documented the consequences of the impugned nuisance by medical certificates or independent reports. The psychological opinion submitted to the Court had been commissioned by the applicants, and as such was not impartial and credible. 147. Lastly, the Government submitted that the decision-making process had complied with the Convention requirements. In particular, the applicants had received a fair and fully adversarial examination of their civil case. The Court’s assessment (a) General principles 148. The Court reiterates that Article 8 of the Convention protects the individual’s right to respect for his private and family life, his home and his correspondence. A home will usually be a place, a physically defined area, where private and family life goes on. The individual has a right to respect for his home, meaning not just the right to the actual physical area, but also to the quiet enjoyment of that area. Breaches of the right to respect for the home are not confined to concrete or physical breaches, such as unauthorised entry into a person’s home, but also include those that are not concrete or physical, such as noise, emissions, smells or other forms of interference. A serious breach may result in the breach of a person’s right to respect for his home if it prevents him from enjoying the amenities of his home (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 96, ECHR 2003-VIII). 149. The Court further reiterates that although there is no explicit right in the Convention to a clean and quiet environment, where an individual is directly and seriously affected by severe environmental harm such as noise or other pollution, an issue may arise under Article 8 of the Convention (see Hatton and Others, cited above, § 96; López Ostra v. Spain, judgment of 9 December 1994, Series A no. 303-C; Powell and Rayner v. the United Kingdom, judgment of 21 February 1990, Series A no. 172, p. 18, § 40; and Furlepa v. Poland (dec.), no. 62101/00, 18 March 2008). 150. Although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by public authorities, this may involve those authorities adopting measures designed to secure respect for private life even in the sphere of relations between individuals (see, among other authorities, Stubbings and Others v. the United Kingdom, 22 October 1996, § 62, Reports of Judgments and Decisions 1996-IV, and Surugiu v. Romania, no. 48995/99, § 59, 20 April 2004). Whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants’ rights under paragraph 1 of Article 8, or in terms of an interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts, regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, in striking the required balance, the aims mentioned in the second paragraph may be of a certain relevance (see Hatton and Others, cited above, § 98). 151. Where noise disturbances or other nuisances go beyond the ordinary difficulties of living with neighbours, they may affect the peaceful enjoyment of one’s home, whether they be caused by private individuals, business activities or public agencies (see Apanasewicz v. Poland, no. 6854/07, § 98, 3 May 2011; Mileva and Others v. Bulgaria, nos. 43449/02 and 21475/04, § 97, 25 November 2010; and Udovičić v. Croatia, no. 27310/09, § 148-149, 159, 24 April 2014). 152. Lastly, the Court reiterates that the Convention has a fundamentally subsidiary role and the national authorities are in principle better placed than an international court to evaluate local needs and conditions (see Hatton and Others, cited above, § 97). While it is for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the justification given by the State is relevant and sufficient remains subject to review by the Court (see Fadeyeva, cited above, § 102, with further references). (b) Application of the above principles to the present case 153. The Court notes the finding of the domestic courts that the applicants’ right to health and the peaceful enjoyment of their home had been infringed because the noise in their places of residence caused by traffic had gone beyond the statutory norms (see paragraph 88). In the light of the circumstances of the case, the adverse effects of the pollution (the noise, vibrations and exhaust fumes) emitted by the heavy traffic on Warszawska Street which affected the applicants’ home have attained the necessary minimum level to bring the applicants’ grievances within the scope of Article 8 of the Convention, taking into account their intensity, duration, physical and mental effects (see Fadeyeva, cited above, § 69). 154. The Court observes that although the applicants complained that the heavy road traffic which had followed the opening of the Konin ‑ Stryków section of the A2 motorway had caused a nuisance, they did not argue against the national policy of road development or the local policy of commercial development of the area (see paragraphs 163 and 178 above). Incidentally, the implementation of these policies, as transposed into the local master plan, was to be accompanied by the construction of a ring road around Stryków (see paragraph 12 above). 155. The applicants complained instead that the problem in question could have been avoided if the authorities had been diligent in planning that section of the motorway (see paragraph 164 above). Moreover, the consequent nuisance could have been minimised if the authorities had employed timely, adequate and sufficient mitigation and adaptation measures (see paragraph 165 above). 156. As to the first part of the complaint, the Court rejects the applicants’ argument that there was a pattern of bad planning as regards the sections of the A2 motorway, as there is no evidence to support that allegation. 157. The Court nevertheless observes that the administrative authorities, which were in charge of choosing the location and the technical specifications of the motorway, did not examine the objection about the location of the motorway’s temporary end point which had been lodged in 1996 by the mayor of Stryków (see paragraphs 16 and 22 above). The mayor had formulated a clear and detailed prediction as to the risk that ending the motorway at the point later known as the Stryków II junction without any alternative road connection would cause traffic on Warszawska Street which was too heavy and too burdensome (see paragraph 17 above). 158. The Court also takes note of the fact that all the environmental impact assessment reports and administrative decisions which were produced in the course of the impugned administrative proceedings, and which are in the Court’s possession, were only concerned with the motorway per se, and were completely silent as to the traffic rerouting via the N14 road (see paragraphs 23, 26, 28 and 30 above). 159. Another important element in this context is that the authorities opted for that section of the motorway to be toll-free (see paragraph 9 above), even though that was clearly going to prompt the greater circulation of traffic on that road and on the N14, which was shorter and technically better than any alternative national or regional road in the vicinity (see paragraphs 79 and 80 above). 160. Lastly, the Court accepts that Stryków residents were affected by not only the transit traffic, but also the movement of vehicles serving various warehouses and logistics centres (see paragraphs 82, 83 and 178 above). However, no data are available to distinguish between these two types of traffic. The Court thus considers it reasonable to assume that the transit traffic constituted a significantly larger portion of the traffic in question, especially the traffic which circulated at night, that is, outside of the opening hours of the commercial establishments which developed in the Stryków area. 161. In the light of all these considerations, the Court cannot agree with the Government that the traffic on Warszawska Street was unpredictable (see paragraph 172 above). The Court thus concludes that the authorities, who had been alerted to the potential problem in 1996, knowingly ignored it and continued developing the motorway project with total disregard for the well-being of Stryków residents. 162. The Court stresses that, for the purpose of this case, the peaceful enjoyment of Stryków residents’ homes was threatened and ultimately affected not by the development of the motorway as such, but rather the project rerouting the motorway’s traffic through the middle of their town. In that regard, the general interest in having the motorway developed or constructed in sections (see paragraphs 22 and 170 above) must be distinguished from the general interest in having that particular section of the motorway end at the Stryków II junction, with the only option being to divert the motorway’s uncontrolled traffic down the unadapted Warszawska Street. 163. The Court accepts that minimising investment expenses is a valid general interest for any State budget. It also takes note of the information indicating that the ring road around Stryków could not be constructed owing to the shortage of funds (see paragraph 86 above). However, the Court has serious doubts as to whether this is a sufficient counterbalancing factor. 164. The Court will now move on to the second part of the applicants’ complaint and examine whether the authorities reacted promptly and adequately to the problem of heavy traffic which started affecting Stryków residents after the opening of the section of the motorway on 26 July 2006. 165. The authorities, who, on the one hand, carried out their own monitoring, and other the other hand, were alerted to the problem by the population concerned (see paragraphs 34, 35 and 38 above), did not adopt a passive attitude. 166. The very first plan to mitigate the situation was presented in August 2006. The plan featured two options: the ring road, and the 1.7-km extension to what later became known as the Stryków I junction (see paragraph 37 above). 167. The implementation of that plan, however, was marked by serious complications and delays. As already explained, the ring road option was abandoned (see paragraph 200 above). The second-best solution, that is, the opening of an extension to the motorway up to the new junction, took place only two and a half years later, on 22 December 2008 (see para 65 above). 168. It appears that the delay in question was not attributable to the administrative proceedings (the environmental impact assessment having been delivered in 2003, and the permits having been granted in 2006), but rather the works (see paragraph 64 above). 169. Extending the motorway to the Stryków I junction offered a direct connection to the A1 motorway and effectively reduced the traffic on the N14 road to an acceptable level (see paragraph 66, above) 170. While awaiting the above-described long-term solution, the authorities made serious, albeit hasty, attempts to reorganise the traffic by installing custom-made signs indicating that drivers should make possible detours via nearby national and regional roads (see paragraphs 44 and 46 above). To judge the effects of that measure, the Court can only rely on the expert report of 30 November 2010, which appears to contradict itself, as well as on the parties’ submissions. It is thus the Court’s understanding that the measure which was implemented in December 2006, even though it had some positive effect, did not eliminate the heavy and continuous traffic from a significant number of trucks (see paragraphs 45, 84 and 165 above). 171. In October 2006 the authorities also took the adaptation measure of renovating the surface of Warszawska Street (see paragraph 43 above). That apparently did not bring about any positive change (see paragraphs 44, 59 and 70 above). It appears that no other adaptation measures (like anti-noise screens) could be taken in Stryków. 172. The Court observes that the authorities faced a difficult task of mitigating the problem of very heavy traffic resulting from the rerouting of the A2 motorway down Warszawska Street. They also had a very limited choice of possible adaptation measures. The Court therefore accepts that the authorities made considerable efforts to respond to the problem. This, however, does not change the fact that these efforts remained largely inconsequential, because the combination of the A2 motorway and the N14 road was, for many reasons, the preferred route for drivers. As a result, the State put vehicle users in a privileged position compared with the residents affected by the traffic. 173. Even though the civil proceedings through which the applicants tried to seek ex post facto compensation for the nuisance suffered cannot be said to have been marked by unfairness, all the foregoing considerations are sufficient to enable the Court to conclude that a fair balance was not struck in the present case. 174. In sum, the rerouting of heavy traffic via the N14 road, a road which was unequipped for that purpose and very near to the applicants’ homes, and the lack of a timely and adequate response by the domestic authorities to the problem affecting the inhabitants of Warszawska Street, enables the Court to conclude that the applicants’ right to the peaceful enjoyment of their homes was breached in a way which affected their rights protected by Article 8. 175. There has accordingly been a violation of Article 8 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 176. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 177. Each applicant claimed 15,000 euros (EUR) in respect of non-pecuniary damage. 178. The Government considered that amount excessive. 179. Regard being had to the reasons why the Court has found a violation of Article 8 of the Convention in the present case, it considers that the applicants must have suffered non-pecuniary damage which cannot be redressed by the mere finding of a violation. Ruling on an equitable basis, it awards each applicant EUR 10,000 in respect of non-pecuniary damage and dismisses the remainder of their claim. Costs and expenses 180. The applicants also claimed EUR 5,000 for the costs and expenses incurred before the Court. No invoice to that effect was provided. 181. The Government argued that the applicants had not complied with the conditions required by the Court’s case-law. 182. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the above criteria and the lack of any documents proving that the applicants incurred expenses, the Court considers it reasonable to award the sum of EUR 750 for the proceedings before the Court, plus any tax that may be chargeable. Default interest 183. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 of the Convention. It found in particular that the authorities had knowingly ignored the problem from 1996 and had continued developing the motorway project with total disregard for the well-being of local residents. Overall, the Court found that the diverting of traffic by the applicants’ house and the lack of an adequate response by the authorities had harmed their peaceful enjoyment of their home. |
633 | Journalists and publishing companies | II. RELEVANT DOMESTIC LAW 30. Freedom of the Press Act of 29 July 1881 ( as worded at the material time ) Section 29 “ It shall be defamatory to make any statement or allegation of a fact that damages the honour or reputation of the person or body of whom the fact is alleged. The direct publication or reproduction of such a statement or allegation shall be an offence, even if expressed in tentative terms or if made about a person or body not expressly named but identifiable by the terms of the disputed speeches, shouts, threats, written or printed matter, placards or posters. It shall be an insult to use any abusive or contemptuous language or invective not containing an allegation of fact.” Section 30 “ Anyone who by one of the means set out in section 23 makes a statement that is defamatory of a court of first instance or of appeal, the Army, Navy or Air Force, a constitutional body or a public authority shall be liable on conviction to between eight days ’ and one year ’ s imprisonment and a fine of between 300 and 300,000 francs, or to one only of these penalties.” Section 31 “ Defamation by like means by reference to the functions or capacity of one or more ministers or ministry officials, one or more members of one of the two legislative chambers, a civil servant, a representative or officer of the law, a minister of religion in receipt of a State salary, a citizen temporarily or permanently responsible for a public service or discharging a public mandate, a member of a jury or a witness on the basis of his witness statement shall be punishable by the same penalty. Defamatory statements about the private lives of the above persons shall be punishable under section 32 below. ” Section 32 “ Anyone who by any of the means set out in sections 23 and 28 makes a statement that is defamatory of private individuals shall be liable on conviction to between five days ’ and six months ’ imprisonment and a fine of between 150 and 80,000 francs, or to one only of these sentences. ... ” Law no. 51-19 of 5 January 1951 Section 28 “ For the purposes of section 30 of the Act of 29 July 1881, recognised Resistance movements and networks shall be deemed to form part of the Army and Navy.” Extracts from the Court of Cassation ’ s case-law Judgment of 12 January 1956 “ The originating summons referred only to section 32 of the Act of 29 July 1881, which makes it an offence to make statements that are defamatory of private individuals; the statements which the tribunals of fact found to be defamatory amounted, on the contrary, to offences under sections 30 and 31 of the Act, as the allegations were made against a Resistance group that was likened to the regular Army, or against its leader acting in that capacity and in respect of his functions. ” Judgment of 13 November 1978 “When the defamatory accusation is made against the leader of a Resistance group that is likened to the regular Army acting in that capacity and with respect to his functions ..., a charge will lie only under section 31 ... ” Judgment of 4 October 1989 ( Pierre de Bénouville ) “ By virtue of a combination of sections 30 and 31 of the Freedom of Press Act and section 28 of the Act of 5 January 1951, the protection against defamation afforded to certain recognised Resistance movements which are likened to the Army and Navy extends to the members of these movements if the defamatory statement concerns their status or actions as members. ” THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 31. The applicants complained of the lack of quality, foreseeability and accessibility of the statutory provisions that had resulted in the imposition of a penalty that was not “prescribed by law” and was disproportionate. They relied on Article 10 of the Convention, which provides: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. Whether there was an interference 32. The Government did not dispute that there was “interference by public authority” with the exercise of the applicant ’ s freedom of expression. 33. The Court notes that such interference will infringe the Convention unless it satisfies the requirements of paragraph 2 of Article 10. It must therefore determine whether it was “prescribed by law”, was directed towards one or more of the legitimate aims set out in that paragraph and “necessary in a democratic society” to achieve them. B. Justification for the interference 1. “Prescribed by law ” (a) The parties ’ submissions 34. The applicants submitted, firstly, that the combination of sections 30 and 31 of the Freedom of the Press Act of 29 July 1881 and the Act of 5 January 1951 could not satisfy the requirements as to the quality, foreseeability and accessibility of the law imposed by Article 10 § 2 of the Convention. 35. They maintained that at the time the book was published French legislation did not make it possible to affirm that public defamation of a member of the Resistance fell within section 31 rather than section 32 of the Act of 29 July 1881. Yet, the court ’ s sentencing powers and the remedies available to the victims depended on which section was applicable. The applicants considered that it was common ground that no French legislation existed in which a member of the Resistance had been likened to any of the persons referred to in section 31 and that by applying that provision in the instant case the domestic courts had adopted a wide interpretation by analogy. 36. They went on to argue that the decisions in which that wide interpretation had been used were not sufficiently accessible or foreseeable: the Court of Cassation ’ s judgment of 12 January 1956 was indexed in the Bulletin officiel des arrêts de la Cour de cassation ( official law reports of the Court of Cassation ’ s decisions ) with keywords that made no reference to defamation of members of the Resistance or to the Act of 5 January 1951, nor was there any reference to that Act in the text of the judgment; the Court of Cassation ’ s judgment of 13 November 1978 was published in the same set of reports under the reference “leader of a Resistance group”, but there was no mention of the Act of 5 January 1951; the judgment of 4 October 1989 was not reported in the Bulletin officiel des arrêts de la Cour de cassation. The applicants further submitted that mere publication of an extract of a judicial decision in a review published by a trading company could not be regarded as satisfying the condition as to foreseeability and accessibility. 37. They added that, in terms of quantity, three decisions did not suffice to constitute foreseeable case-law. 38. The Government submitted that, under the Court ’ s case-law, the law had to be sufficiently accessible and foreseeable, which meant that the public had to be able to have an indication that was adequate in the circumstances of the legal rules applicable to a given case and the law formulated with sufficient precision to enable the citizen to regulate his conduct. They referred in that connection to The Sunday Times v. the United Kingdom (no. 1) ( judgment of 26 April 1979, Series A no. 30, p.31, § 49) and Goodwin v. the United Kingdom ( judgment of 27 March 1996, Reports of Judgments and Decisions 1996-II, pp. 496-97, § 31). 39. They maintained that the Court of Cassation ’ s construction of sections 30 and 31 of the Act of 29 July 1881 and section 28 of the Act of 5 January 1951 was long-standing and settled and said that, in their view, the applicants must have been aware when they were prosecuted that the Court of Cassation considered that section 31 of the 1881 Act applied to cases in which a member of a Resistance movement or network had been defamed. The Government submitted that the requirement regarding the clarity of the law had therefore been satisfied in the instant case. 40. They further argued that those two Acts and the decisions holding that section 31 of the Act of 29 July 1881 applied to members of Resistance networks, which had been published in various legal journals, satisfied the condition as to accessibility. 41. The Government submitted, lastly, that, through their profession, the applicants must have been aware of the provisions on defamation in the Freedom of the Press Act, a statute which regulated a substantial part of media law. Furthermore, since the book attacked former members of Resistance networks, the applicants could have acquainted themselves with the case-law that supplemented the Freedom of the Press Act. Each of the applicants had been assisted by a lawyer who would, in principle, have been familiar with that case-law. 42. The Government therefore considered that the law as applied in the present case complied with the conditions of clarity, accessibility and foreseeability required by Article 10 of the Convention. (b) The Court ’ s assessment 43. The Court reiterates that a norm cannot be regarded as a “law” within the meaning of Article 10 § 2 unless it is formulated with sufficient precision to enable the citizen to regulate his conduct; he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty. Whilst certainty is desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice ( see, among other authorities, The Sunday Times, cited above, § 49, and Hertel v. Switzerland, judgment of 25 August 1998, Reports 1998-VI, pp. 2325-26, § 35). 44. The scope of the notion of foreseeability depends to a considerable degree on the content of the text in issue, the field it is designed to cover and the number and status of those to whom it is addressed ( see Cantoni v. France, judgment of 15 November 1996, Reports 1996-V, p. 1629, § 35). A law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail ( see, among other authorities, Tolstoy Miloslavsky v. the United Kingdom, judgment of 13 July 1995, Series A no. 316-B, p. 71, § 37, and Grigoriades v. Greece, judgment of 25 November 1997, Reports 1997-VII, p. 2587, § 37). 45. This is particularly true in relation to persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation. They can on this account be expected to take special care in assessing the risks that such activity entails ( see Cantoni, loc. cit. ). 46. With specific regard to the question of the accessibility and foreseeability of the law, the Court notes that the applicants in the instant case are respectively a journalist, a publisher and a publishing company. 47. The relevant law comprised two pieces of legislation ( the Acts of 29 July 1881 and 5 January 1951 ) and three Court of Cassation decisions (of 12 January 1956, 13 November 1978 and 4 October 1989 ) which interpreted the legislation consistently and which those engaged in the press and publishing sectors must have been aware of. 48. The Court accordingly finds that, as professional book publishers, the publisher and the publishing company must at least have been familiar with the legislation and settled case-law that was applicable in this sphere and could have sought advice from specialist counsel. In view of the nature of the book, they could not have been unaware of the risks to which the author ’ s challenging of previously undisputed historical facts exposed them. They were accordingly in a position to assess the risks and to alert the author to the risk of prosecution if the book was published as it stood. Furthermore, the publisher and, through him, the author should have known that it was settled case- law that a failure to exercise caution and care when collecting historical evidence and drawing conclusions therefrom could be treated by the domestic courts as a constitutive element of the offence of defamation of persons whose honour or reputation risked being tarnished by publication. 49. In conclusion, the Court considers that the applicants ’ contention that they were unable to foresee “to a reasonable degree” the consequences publication of the book was liable to have for them in the courts is untenable. It therefore finds that the interference in issue was “prescribed by law” within the meaning of the second paragraph of Article 10 of the Convention. 2. Legitimate aim 50. The applicants expressed no view on this point. 51. The Government argued that the domestic courts ’ decisions were intended to protect Mr and Mrs Aubrac from defamation in a case in which the damage to their reputation was considerable given the accusation of treachery that had been levelled against them. The decisions were thus aimed at “the protection of the reputation or rights of others” and the interference had pursued a legitimate aim for the purposes of paragraph 2 of Article 10 of the Convention. 52. The Court finds that the aim of the relevant decisions in the present case was indisputably to protect the reputation of Mr and Mrs Aubrac, whose activities as members of the Resistance have made them public figures since the Second World War. 53. Consequently, the interference complained of pursued at least one of the legitimate aims set out in paragraph 2 of Article 10. “Necessary in a democratic society” (a) The parties ’ submissions 54. The applicants stressed that the book was a historical work and submitted that the general public ’ s right to know its own history had to be taken into account and entailed different approaches by the journalist and the historian. 55. They criticised the stance taken by the domestic courts which authorised judicial intervention in historical debate and the judicial scrutiny of any historical work, thereby prohibiting all historical conjecture, denying the right to debate the official version of history that was generally accepted in France and depriving the applicants of all freedom of expression on historical matters. They submitted that the French courts had conclusively decided to regard Mr and Mrs Aubrac as valiant members of the Resistance and refused to permit any historian to examine their conduct in order to assess the role they had played in the events that had culminated in the meeting at Caluire on 21 June 1943. Consequently, the applicants argued that there had been no “ pressing social need ” that justified removing that episode from the scope of historians ’ freedom of opinion. 56. The applicants went on to explain that the author of the book had relied on authentic sources that had been cross-checked, and that Klaus Barbie ’ s written submissions had been just one of a number of sources, all of which had been read critically. Their approach had been systematically to treat Klaus Barbie ’ s accusations with caution. They added that they had also taken into account the statements of two members of the Resistance who had been direct witnesses of the matters which they had researched. They stressed, lastly, that the book was written in measured tones and contended that it was legitimate for a historian with doubts about an assertion to regard it as an “ unverifiable ” accusation if he had not been able to assemble all the documentation on the issue. 57. The applicants submitted that in those circumstances there had been a breach of their rights guaranteed by Article 10 of the Convention on account both of their convictions by the domestic courts and of the severity of the sentences. 58. The Government maintained that the domestic courts had correctly weighed up the various interests at stake by carrying out a detailed examination of the structure of the book and analysing each individual basis for the accusation made against Mr and Mrs Aubrac. It had become apparent from that examination that the author had devoted the majority of the book to criticism of the Aubracs, his main accusation being their role in Jean Moulin ’ s arrest at Caluire. 59. The point which the domestic courts criticised in their decisions was the central role Klaus Barbie ’ s written submissions had been allowed to play as a basis for challenging Mr and Mrs Aubrac ’ s version of events – despite the fact that he had been shown to be an unreliable source – without any precaution being taken with regard to presentation, any reference to the official documents or any questioning of those direct witnesses who were still alive when the book was written. 60. The Government submitted that by constructing his argument in that way, the first applicant had failed to comply with a fundamental ethical rule of journalism that required the provision of “information that is accurate and creditworthy in compliance with the journalist ’ s code of conduct”. 61. The Government emphasised, lastly, that the penalties imposed on the applicants could not be regarded as particularly severe and that the book containing the author ’ s ideas continued to be accessible to the public. (b) The Court ’ s assessment 62. The Court reiterates the fundamental principles established by its case-law on Article 10 ( see, among many other authorities, The Sunday Times (no. 1), cited above, pp. 40-41, § 65, and Association Ekin v. France, no. 39288/98, § 56, ECHR 2001-VIII). 63. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly. 64. The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10. 65. When exercising its supervisory jurisdiction, the Court ’ s task is not to substitute its own view for that of the relevant national authorities but rather to review under Article 1 0 the decisions they delivered in the exercise of their discretion. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully or in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. 66. Article 10 does not in terms prohibit the imposition of prior restraints on circulation or all bans on dissemination, but the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court. 67. The Court has on many occasions stressed the essential role the press plays in a democratic society. It has, inter alia, stated that although the press must not overstep certain bounds, in particular in respect of the rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them ( see, among many other authorities, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, §§ 59 and 62, ECHR 1999-III, and Colombani and Others v. France, no. 51279/99, § 5 5, ECHR 2002-V ). The national margin of appreciation is circumscribed by the interest of democratic society in enabling the press to exercise its vital role of “public watchdog” ( see, among other authorities, the Bladet Tromsø and Stensaas, cited above, § 59). 68. These principles apply to the publication of books or other written materials such as periodicals that have been or are due to be published ( see, in particular, C. S.Y. v. Turkey, no. 27214/95, § 42, 4 March 2003), if they concern issues of general interest. 69. The Court considers that it is an integral part of freedom of expression to seek historical truth and it is not the Court ’ s role to arbitrate the underlying historical issues, which are part of a continuing debate between historians that shapes opinion as to the events which took place and their interpretation. As such, and regardless of the doubts one might have as to the probative value or otherwise of the document known as “ Barbie ’ s written submissions” or the “ Barbie testament ”, the issue does not belong to the category of clearly established historical facts – such as the Holocaust – whose negation or revision is removed from the protection of Article 10 by Article 17 of the Convention ( see Lehideux and Isorni v. France, judgment of 23 September 1998, Reports 1998 ‑ VII, pp. 2885-86, § 51, and Garaudy v. France (dec.), no. 65831/01, ECHR 2003-IX; as regards Jean Moulin ’ s arrest at Caluire, see paragraph 10 above ). However, the Court must balance the public interest in being informed of the circumstances in which Jean Moulin, the main leader of the internal Resistance in France, was arrested by the Nazis on 21 June 1943, and the need to protect the reputation of Mr and Mrs Aubrac, who were themselves important members of the Resistance. More than half a century after the events, there was a risk that there their honour and reputation would be seriously tarnished by a book that raised the possibility, albeit by way of innuendo, that they had betrayed Jean Moulin and had thereby been responsible for his arrest, suffering and death. 70. In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole, including the content of the remarks held against the applicants and the context in which they made them. In particular, it must determine whether the interference in issue was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts ( see, among many other authorities, Zana v. Turkey, judgment of 25 November 1997, Reports 1997-VII, pp. 2547- 48, § 51). In addition, in the exercise of its European supervisory duties, the Court must verify whether the authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in this type of case, namely, on the one hand, freedom of expression protected by Article 10 and, on the other, the right of the persons attacked by the book to protect their reputation, a right which is protected by Article 8 of the Convention as part of the right to respect for private life. 71. In the present case, in order to come to a guilty verdict, the Paris tribunal de grande instance performed a three-part examination. It began by looking at the alleged defamatory accusations in the chronological order of the underlying events and comparing the text of Klaus Barbie ’ s signed written submissions with the text of the first applicant ’ s book, noting that the very purpose of the book was to: “ compare the allegations of these ‘ written submissions ’ with the account of events given by Mr and Mrs Aubrac on various occasions and the other oral and documentary evidence relating to that period. ... ” 72. The tribunal de grande instance thus examined the circumstances of Raymond Aubrac ’ s initial arrest in March 1943 and his release in May 1943, the escape from L ’ Antiquaille Hospital, the Caluire episode, events post - Caluire and the escape from boulevard des Hirondelles ( see paragraph 17 above ) : “Thus ..., without formally corroborating the direct accusations made in ‘ Barbie ’ s written submissions ’, the [first applicant] sets about sowing confusion by combining a series of facts, witness statements and documents of different types and varying degrees of importance which together serve to discredit the accounts given by the civil parties; he also questions the motives for their deception and lies ... As for the author ’ s comments, they constitute defamation by innuendo in that they encourage the reader to believe that very grave questions exist over Mr and Mrs Aubrac ’ s conduct in 1943 that outweigh the certainties that have been hitherto accepted; they thus lend credence to Barbie ’ s accusations.” 73. After considering which statutory provisions were applicable, the tribunal de grande instance turned to the issue of the applicants ’ good faith, which is of central importance in defamation cases. With regard to that issue, the tribunal de grande instance found that the characteristic features of the applicant ’ s book were the excessive importance given to Barbie ’ s written submissions, a manifest lack of adequate documentation on the circumstances of Raymond Aubrac ’ s first arrest on 15 March 1943 and his release, a failure to rank the sources of information on the escape from L ’ Antiquaille Hospital in order of importance, insufficient qualification of his remarks on Caluire and the escape of 21 October, a lack of critical analysis of the German sources and documents as such and its neglect of the statements of those who took part in the events. It explained and gave reasons for each of these assertions and concluded that the author ’ s plea of good faith had to be rejected ( see paragraph 19 above ). 74. The Paris Court of Appeal adopted the Paris tribunal de grande instance ’ s reasoning as regards the defamatory nature of the statements. It added with regard to the question of defamation by innuendo (see paragraph 24 above): “ Having thus decided how the book would be balanced: systematic doubt where the Aubracs are concerned and the use of Barbie ’ s document as a reference – albeit one to be treated with caution – [the first applicant] proceeds, in circumstances that are accurately described in the judgment, systematically to refuse to accord any credit to Mr and Mrs Aubrac ’ s account. ” 75. It rejected the plea of good faith on the ground that the first applicant had repeatedly failed to exercise sufficient caution. 76. The Court observes that the domestic courts carried out a detailed and very thorough examination of the book and, in particular, the manner in which the facts and arguments were presented before concluding that the applicants were guilty of public defamation of Mr and Mrs Aubrac, in their capacity as members of a recognised Resistance movement. 77. It considers that the convictions in the instant case were based on relevant and sufficient reasons. In that connection, it finds convincing the evidence and reasoning which persuaded the civil courts, both at first instance and on appeal, to find that the author had failed to respect the fundamental rules of historical method in the book and had made particularly grave insinuations. It refers in particular to the meticulous analysis of the book by both the Paris tribunal de grande instance in its judgment of 2 April 1998 and the Court of Appeal in its judgment of 10 February 1999. It therefore sees no reason to disagree with the domestic courts ’ analysis of the case or to find that they construed the principle of freedom of expression too restrictively or the aim of protecting the reputation and the rights of others too extensively. 78. As to the sentences which were imposed, the Court reiterates that, in assessing the proportionality of the interference, the nature and severity of the penalties imposed are also factors to be taken into account (see, for example, Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 64, ECHR 1999 ‑ IV ). It notes, firstly, that no order was made for the book ’ s destruction or prohibiting its publication ( see, mutatis mutandis and by converse implication, Editions Plon v. France, no. 58148/00, § 53, ECHR 2004-IV ). Further, the Court notes that, contrary to what has been suggested by the applicants (see paragraph 57 above), the levels of the fines and orders for damages ( see paragraphs 20 and 27 above ) appear to have been relatively modest ( see, by converse implication, Tolstoy Miloslavsky, cited above ) and the sums the applicants were thus required to pay justified in the circumstances of the case. Nor, lastly, does the requirement to publish a statement in five periodicals and to include a warning in like terms in each copy of the book appear unreasonable or unduly restrictive of freedom of expression. 79. In addition, the Court reiterates that just as, by providing authors with a medium for publication, publishers participate in the exercise of freedom of expression, as a corollary thereto they are vicariously subject to the “duties and responsibilities” which authors take on when they disseminate their opinions to the public (see, mutatis mutandis, Sürek (no. 1), cited above, § 63). Thus, the fact that the third applicant was found jointly and severally liable in tort with the first two applicants and ordered to pay damages to the civil parties is not in itself incompatible with the requirements of Article 10 of the Convention. 80. In conclusion, the Court finds that the interference with the applicants ’ freedom of expression in the instant case was not disproportionate to the legitimate aim pursued. Consequently, there has been no violation of Article 10 of the Convention. | The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention, finding that the interference with the applicants’ freedom of expression had not been disproportionate to the legitimate aim pursued, namely to protect the Aubracs from damage to their reputation. Noting in particular that the quest for historical truth was an integral part of freedom of expression, the Court considered that it was not its task to settle the substantive historical issue, which was part of an ongoing debate among historians and even public opinion about the events and their interpretation. However, in order to determine whether the measure in question had been necessary in a democratic society, the Court had to balance the public interest in knowing the circumstances of Jean Moulin’s arrest against the requirement of protecting the reputation of Mr and Mrs Aubrac, who had themselves been major figures of the Resistance. |
43 | Applications lodged by the parent whose child had been abducted by the other parent | II. RELEVANT INTERNATIONAL AND DOMESTIC LAW A. Relevant international law 1. Hague Convention on the Civil Aspects of International Child Abduction 31. At present, Albania has not ratified the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. 2. United Nations Convention on the Rights of the Child 32. Article 11 of the Convention on the Rights of the Child of 20 November 1989, ratified by Albania on 27 February 1992, requires States Parties to take measures to combat the illegal transfer and non-return of children abroad. For that purpose, States should promote the conclusion of bilateral or multilateral agreements or accession to existing agreements. 3. Bilateral Agreement on Mutual Assistance in Civil and Criminal Matters between Greece and Albania 33. This Agreement, signed on 17 May 1993, was ratified by Albania pursuant to Law no. 7760 of 14 October 1993 and by Greece pursuant to Law no. 2311/1995. Articles 2, 3, 23 and 24 of the Agreement provide for the possibility for the Ministries of Justice of both Contracting Parties to cooperate in the recognition and execution in their territories of final judicial decisions given by the authorities of the other Party in civil, family and commercial matters. B. Relevant domestic law and practice 34. The Code of Civil Procedure, which governs, inter alia, execution of final judgments, does not contain any provisions specifically applicable to the transfer of custody of children. As a result, the general procedural rules on the execution of judgments are applicable mutatis mutandis. 35. In cases where a parent ’ s refusal to comply constitutes a criminal offence, the matter should be referred to the prosecuting authorities. 36. Failure to abide by a final decision concerning custody of children may be punishable under Article 127 of the Criminal Code. THE LAW I. THE GOVERNMENT ’ S PRELIMINARY OBJECTON 37. The Government contended that the applicant had not exhausted the domestic remedies at his disposal. They argued that the applicant had failed to raise the issue of the inactivity of the Bailiffs ’ Office with the Vlora District Court in accordance with Article 610 of the Code of Civil Procedure. In the Government ’ s submission, that provision afforded individuals the right to contest actions by the bailiffs before the District Court. Consequently, the applicant had failed to make use of this remedy despite having addressed his claims alleging inactivity on the part of the bailiffs to the Minister of Justice and other authorities. 38. The applicant challenged the effectiveness of the remedy referred to by the Government. He argued that a further appeal could not have achieved his principal objective, namely reuniting him with his daughter. He stated that during the two years that followed the custody decision he had made several applications to the authorities. This included the initiation of criminal proceedings for the abduction of the child, and persistent requests to have the judgment speedily enforced in his daughter ’ s interests. Consequently, the applicant submitted that the Government ’ s statements were unsubstantiated. 39. The Court reiterates that the purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see, for example, Hentrich v. France, judgment of 22 September 1994, Series A no. 296-A, p. 18, § 33, and Remli v. France, judgment of 23 April 1996, Reports of Judgments and Decisions 1996-II, p. 571, § 33). Thus the complaint to be submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits. Nevertheless, the only remedies that must be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see, in particular, Vernillo v. France, judgment of 20 February 1991, Series A no. 198, pp. 11-12, § 27, and Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, pp. 1210-11, §§ 65-68). 40. The Court notes that the applicant complained that the authorities had failed to take the necessary measures to identify his daughter ’ s whereabouts in order to comply with the custody decision in his favour. 41. The applicant obtained a writ for the enforcement of the judgment of 4 February 2004, in accordance with the requirements of domestic civil procedure, but the bailiffs were unable to enforce it since the applicant ’ s daughter was no longer in Albania. 42. The Court finds that the Government have failed to substantiate their argument that the remedy referred to is either available or adequate to secure redress for the alleged breaches. 43. Furthermore, the Court observes that in a similar case against Albania it found that the Albanian legal system was organised in a manner that did not provide effective remedies against actions by the bailiffs, since the Constitutional Court considered that it lacked jurisdiction to determine claims concerning enforcement proceedings and thus systematically declared them inadmissible ( see Qufaj Co. Sh.p.k. v. Albania, no. 54268/00, § 41, 18 November 2004). In any event, it was for the authorities to ensure the execution of the court decision since it is they who have the necessary legal means and resources to discover the whereabouts of the child and to secure her return. In the circumstances, the applicant could not be expected to make repeated overtures to the bailiffs or to complain about their inactivity to a court in order to have the judgment implemented. 44. Thus, the Court concludes that, at the relevant time, the remedies referred to by the Government did not offer reasonable prospects of success to the applicant. 45. Accordingly, the Government ’ s preliminary objection must be dismissed. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 46. The applicant complained that the inefficiency of the Albanian authorities in failing to take the necessary measures to reunite him with his daughter in compliance with a final decision had violated his right to respect for family life as provided in Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 47. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 48. The applicant complained that the authorities had neglected to make the efforts that could normally be expected of them to ensure that his rights were respected. He further alleged that the failure of the authorities to involve the Greek authorities in helping to discover the whereabouts of his daughter was based on their assumption that F.M. and her current husband were unlawfully resident in Greece and not on any established facts. 49. The Government contested the applicant ’ s arguments. They maintained that, in accordance with the positive obligation enshrined in Article 8 of the Convention, the authorities had taken all possible steps at their disposal to reunite the applicant with his daughter. They observed that approximately 500, 000 Albanian nationals lived in Greece and that half of them resided there illegally. The Government could not therefore be held responsible for the failure of the applicant to give precise details of his daughter ’ s whereabouts and to request an urgent measure to be taken before F.M. left Albania taking the child with her. The Government maintained that since no precise address had been given for the child and her mother in Greece, the use of the instruments foreseen in the bilateral agreement between Albania and Greece had been ineffective (see paragraph 33 above). 2. The Court ’ s assessment (a) General principles 50. The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by public authorities. There are in addition positive obligations inherent in effective “respect” for family life. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, p. 19, § 49; Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000-I; Iglesias Gil and A.U.I. v. Spain, no. 56673/00, § 49, ECHR 2003-V; and Sylvester v. Austria, no. 36812/97, 40104/98, § 51, 24 April 2003). 51. In relation to the State ’ s obligation to take positive measures, the Court has repeatedly held that Article 8 includes a parent ’ s right to the taking of measures with a view to his being reunited with his child and an obligation on the national authorities to facilitate such reunion (see, among other authorities, Ignaccolo-Zenide, cited above, § 94; Iglesias Gil and A.U.I., cited above, § 48; and Nuutinen v. Finland, no. 32842/96, § 127, ECHR 2000-VIII). 52. In cases concerning the enforcement of decisions in the sphere of family law, the Court has repeatedly held that what is decisive is whether the national authorities have taken all necessary steps to facilitate the execution as can reasonably be demanded in the special circumstances of each case (see Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299-A, p. 22, § 5 8; Ignaccolo-Zenide, cited above, § 96; Nuutinen, cited above, § 128; and Sylvester, cited above, § 59 ). 53. In cases of this kind the adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between the child and the parent who does not live with him or her. The Court notes that Article 11 of the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (to which Albania is not a State Party) requires the judicial or administrative authorities concerned to act expeditiously in proceedings for the return of children and any inaction lasting more than six weeks may give rise to a request for a statement of reasons for the delay (see Ignaccolo-Zenide, cited above, § 102). 54. The Court has also held that although coercive measures against children are not desirable in this sensitive area, the use of sanctions must not be ruled out in the event of unlawful behaviour by the parent with whom the children live (see Ignaccolo-Zenide, cited above, § 106). 55. The Court reiterates that the Convention must be applied in accordance with the principles of international law, in particular with those relating to the international protection of human rights (see Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 90, ECHR 2001-II, and Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI). Consequently, the Court considers that the positive obligations that Article 8 of the Convention lays on the Contracting States in the matter of reuniting a parent with his or her children must be interpreted in the light of the Hague Convention of 25 October 1980 (see Ignaccolo-Zenide, cited above, § 95). (b) Application of the general principles to the present case 56. The Court notes, firstly, that it is common ground that the relationship between the applicant and his daughter falls within the sphere of family life under Article 8 of the Convention. 57. The events under consideration in this case, in so far as they give rise to the responsibility of the respondent State, clearly amounted to an interference with the applicant ’ s right to respect for his family life, as the failure to enforce the custody decision impaired his enjoyment of his daughter ’ s company. 58. Notwithstanding that according to the latest developments the custody proceedings in question have been reopened and are still pending, the Court can but note that the custody judgment of 4 February 2004 had been valid and remained unenforced for approximately two years. Accordingly the Court must determine whether the national authorities took necessary and adequate steps to facilitate the enforcement of the judgment at issue. 59. In the present case the Court observes that the proceedings to enforce the decision in the applicant ’ s favour have been pending since April 2004. It observes at the outset that this situation is not in any way attributable to the applicant, who has approached the national authorities to put an end to it and has regularly taken steps to secure the return of his daughter. 60. It was only in April 2005, more than one year after the adoption of the custody decision, that the bailiffs requested the police to transmit information to them about the whereabouts of F.M. and her daughter. While these attempts to enforce the decision all took place within a period of four months in 2005, the same diligence cannot be observed in relation to the crucial period immediately following the custody decision. As noted above, it was not until January 2005 that the bailiffs began to investigate the whereabouts of F.M. It is further to be noted that no steps were taken after May 2005. 61. The Court notes that no satisfactory explanation has put forward to justify those delays. Similarly, no explanation has been provided by the Government for the total inactivity of the authorities once they had ascertained that F.M. was living in Greece. It is to be observed in this connection that both the applicant and F.M. ’ s family had informed the authorities, including at the custody hearing, that F.M. was living in Athens as an economic migrant. 62. The Court considers that the Government ’ s argument about the illegal status of F.M. in Greece is speculative. The authorities took no steps to try to ascertain the whereabouts of F.M. and her daughter from the Greek authorities, a possibility provided for by the bilateral agreement between the two countries. 63. The Government alleged that the failure to enforce the decision in question resulted from the fact that the child was no longer in Albania, a situation which had also been caused in part by the applicant ’ s failure to apply for urgent measures during the custody proceedings. 64. However, it appears that the applicant ’ s attempts to inform the authorities of the risk of the child ’ s abduction had gone unheeded. The Court considers that the applicant ’ s omission to request an interim measure cannot be taken to absolve the authorities from their obligations in the matter of execution of judgments, since it is they who exercise public authority and have the means at their disposal to overcome problems in the way of execution. Moreover, the applicant could not be blamed for not having addressed requests to the Greek courts since the bilateral agreement on the matter expressively required the involvement of the Ministries of Justice of both countries for the enforcement of custody judgments in their territory ( see paragraph 33 above ). As noted previously, the Government have not explained to the Court ’ s satisfaction what measures, if any, they took under that agreement to secure the return of the applicant ’ s daughter from Greece or at least to trace the whereabouts of F.M. 65. The Court further observes that the wide range of legislative measures that have been implemented by the Albanian Government in order to comply with the rule of law as well as European and international treaties, do not include any effective measure for securing the reunion of parents with their children in a situation such as the applicant ’ s. In particular, there is no specific remedy to prevent or punish cases of abduction of children from the territory of Albania (see paragraphs 34 et seq. above ). At present, Albania is not a State Party to the above-cited Hague Convention and it has not yet implemented the UN Convention on the Rights of the Child of 20 November 1989 (see paragraphs 31 and 32 above ). 66. The Court recalls that the European Convention on Human Rights does not impose on States the obligation to ratify international conventions. However, it does require them to take all necessary measures of their choosing to secure the individual ’ s rights guaranteed by Article 8 of the Convention and in particular to secure the reunion of parents with their children in accordance with a final judgment of a domestic court. 67. Irrespective of the non-ratification by Albania of relevant international instruments in this area, the Court finds that the Albanian legal system, as it stands, has not provided any alternative framework affording the applicant the practical and effective protection that is required by the State ’ s positive obligation enshrined in Article 8 of the Convention. 68. In the circumstances of the instant case, notwithstanding the respondent State ’ s margin of appreciation in the matter, the Court concludes that the efforts of the Albanian authorities were neither adequate nor effective to discharge their positive obligation under Article 8. 69. There has accordingly been a violation of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 70. The applicant complained that the Albanian authorities failed to comply with a final judgment that granted him custody of his daughter. He relied on Article 6 § 1 of the Convention, which in its relevant part reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” 71. The Government contested that argument. 72. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 73. The Court reiterates the difference in the nature of the interests protected by Articles 6 and 8 of the Convention. While Article 6 affords a procedural safeguard, namely the “right to a court” in the determination of one ’ s “civil rights and obligations”, Article 8 serves the wider purpose of ensuring proper respect for, inter alia, family life. The difference between the purpose pursued by the respective safeguards afforded by Articles 6 and 8 may, in the light of the particular circumstances, justify the examination of the same set of facts under both Articles (see, for instance, McMichael v. the United Kingdom, judgment of 24 February 1995, Series A no. 307-B, p. 57, § 91, and Sylvester, cited above, § 76 ). 74. However, in the instant case and having regard to the finding relating to Article 8 (see paragraph 69 above), the Court considers that it is not necessary to examine whether in the instant case there has been a violation of Article 6 § 1 (see, among other authorities, Sylvester, cited above, § 77 ). III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 75. The applicant complained under Article 6 § 1 about the authorities ’ failure to initiate criminal proceedings against A.C., who, he alleged, had forged documents that had enabled his former wife to abduct his daughter. Lastly, with reference to the falsification of his daughter ’ s birth certificate, the applicant complained under Articles 12, 13 and 17, without giving due reasons. 76. As to the applicant ’ s complaint under Article 6 § 1, the Court reiterates that the right to bring criminal proceedings against private persons is not guaranteed under the Convention (see X v. the Federal Republic of Germany, no. 7116 / 75, Commission decision of 4 October 1976, Decisions and Reports 7, p. 91, and B.Č. v. Slovakia (dec.), no. 11079/02, 14 March 2006 and also Perez v. France [GC], no. 47287/99, § 70, ECHR 2004 ‑ I ). It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be dismissed in accordance with Article 35 § 4. 77. In so far as the applicant complained of a violation of Articles 12, 13 and 17 of the Convention without giving further details, the Court considers the matter to be wholly unsubstantiated. This complaint must therefore be dismissed in accordance with Article 35 §§ 3 and 4 of the Convention as being manifestly ill-founded. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 78. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 79. The applicant claimed 10, 000 euros (EUR) in respect of pecuniary damage, covering his loss of wages and opportunities, and EUR 15, 000 in respect of non- pecuniary damage for the distress caused as a result of the failure to enforce the decision reuniting him with his daughter. 80. The Government contested the applicant ’ s claim since in their view the application was inadmissible. They did not submit any arguments relating to the amounts claimed for pecuniary and non-pecuniary damage. 81. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore dismisses this claim. 82. As to non-pecuniary damage, the Court sees no reason to doubt that the applicant suffered some distress as a result of the non-enforcement of the final judgment at issue and that sufficient just satisfaction would not be provided solely by the finding of a violation. 83. Having regard to the sums awarded in comparable cases (see, for instance, Ignaccolo-Zenide, cited above, § 117; Hokkanen, cited above, p. 27, § 77; see also, mutatis mutandis, Elsholz v. Germany [GC], no. 25735/94, § 71, ECHR 2000-VIII, and Kutzner v. Germany, no. 46544/99, § 87, ECHR 20 0 2-I), and making an assessment on an equitable basis as required by Article 41, the Court awards the sum of EUR 15, 000 under this head. B. Costs and expenses 84. The applicant also claimed EUR 17, 000 for the costs and expenses incurred before the domestic courts and the Court. 85. The Government did not express any view. 86. According to the Court ’ s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that they have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 10,000 covering costs under all heads. C. Default interest 87. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 of the Convention. It noted in particular that the custody judgment had remained unenforced for approximately two years for which no blame could be attributed to the applicant, who had regularly taken steps to secure the return of his daughter. Recalling that the European Convention on Human Rights required States to take all necessary measures to secure the reunion of parents with their children in accordance with a final judgment of a domestic court, and irrespective of the non-ratification by Albania of relevant international instruments in that area, the Court found that the Albanian legal system, as it stood, did not provide any alternative framework affording the applicant the practical and effective protection that was required by the State’s positive obligation enshrined in Article 8 of the Convention. |
736 | Noise pollution | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Constitution 41. The relevant provisions of the Constitution are as follows: Article 10 § 2 “The provisions relating to the fundamental rights and freedoms recognised under the Constitution shall be construed in accordance with the Universal Declaration of Human Rights and the international treaties and agreements which Spain has ratified in that sphere.” Article 15 “Everyone shall have the right to life and to physical and mental integrity. ...” Article 18 § 2 “The home shall be inviolable. ...” Article 45 § 1 “Everyone shall have the right to enjoy an environment suitable for personal development and the duty to preserve it. ...” Article 53 § 2 “Every citizen shall be entitled to seek protection of the freedoms and rights recognised in Article 14 and in the first section of Chapter II by bringing an action in the ordinary courts under a procedure designed to ensure priority and expedition and, in appropriate cases, by an appeal ( recurso de amparo ) to the Constitutional Court ...” B. The Fundamental Rights (Protection) Act (Law no. 62/1978) 42. Section 6, which was repealed by the Administrative Courts Act of 13 July 1998 (Law no. 29/1998), read as follows: “... [a]n application for judicial review may be brought in accordance with the procedural rules set out in this section in respect of decisions of the public authorities that are subject to administrative law and liable to affect the exercise of the fundamental rights of the person...” C. The Constitutional Court Act 43. The relevant parts of Article 44 of the Constitutional Court Act reads: “1. An amparo appeal for violations of rights and guarantees amenable to constitutional protection ... will lie only if: ... (c) the party relying on the alleged violation formally pleads it in the relevant proceedings after becoming aware of its occurrence.” D. The bylaw on noise and vibrations issued by the Valencia City Council on 28 June 1986 44. The relevant provisions of the bylaw provide: Article 8 § 1 “Permitted external noise-reception levels shall be determined by reference to the main user of each of the areas marked on the city development plan and shall not exceed: Maximum reception levels: ... Multiple family residence: Daytime (from 8 a.m. to 10 p.m. ): 55 dB (A) Night-time (from 10 p.m. to 8 a.m. ): 45 dB (A) ...” Article 30 “1. Zones that are acoustically saturated by additional causes are areas or places in which the large number of establishments, activity of the people frequenting them and passing traffic expose local residents to high noise levels and cause them serious disturbance. 2. An area may be designated an acoustically saturated zone (ASZ) if, though individual activities are compliant with the levels set out in this bylaw, the level of disturbance due to external noise as referred to in Article 8 is exceeded twice-weekly in consecutive weeks, or three times intermittently over a period of 35 days, and exceeds 20 dB (A).” E. The expert report 45. The relevant parts of the report drawn up by Mr X, a professor of applied physics, on the sound-level readings taken in the district in which the applicant lived in Valencia read as follows: “The results obtained from measurements taken by the Valencia University acoustic laboratory over a period of several years in the said area and measurements taken by other bodies showed that ambient noise levels in this area, in particular at nights and weekends (especially between 1 a.m. and 3 a.m.) are extremely high. At these periods in the area concerned the hourly equivalent sound levels (Leq) frequently exceed 70 dB (A) and the maximum corresponding levels exceed 80 dB (A). As a result, we can say that noise levels in dwellings in this urban area are intolerably high at night-time and, consequently, detrimental to the health and well-being of the residents. This conclusion is based on the fact that, even with the windows closed (including in the height of summer), indoor noise levels are very high. It should be noted that under the current regulations (building norm NBE-CA-88) the minimum insulation requirement for the frontage of buildings is 30 dB (A). In practice, that figure is never attained and is generally in the region of 15 to 20 dB (A). Consequently, in these circumstances, night-time noise levels inside the dwellings, for example in bedrooms overlooking the street, can be estimated at in the region of 50 dB (A), with maximum levels reaching approximately 60 dB (A). We would point out that this is a general estimate and is made without the need for specific measurements to be taken inside the dwellings concerned. We should explain here that the difference between 50 or 60 dB (A) and 30 dB (A) is enormous. Thus, an increase from 30 to 33 dB (A) does not represent a slight increase in noise (as a layman might think) but the doubling in intensity of the corresponding noise. An informed reading of this report is only possible if the meaning of the “decibel” unit used here is correctly understood.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 46. The applicant complained of noise and of being disturbed at night by nightclubs near her home. She alleged that the Spanish authorities were responsible and that the resulting onslaught of sound constituted a violation of her right to respect for her home, as guaranteed by Article 8, which provides : Article 8 “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except as such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the well-being of the country, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Submissions of the parties 1. The applicant 47. The applicant complained of inaction on the part of the local authorities in Valencia, in particular the City Council, which had failed to put a stop to the night-time disturbances. She said that the Government had not put forward any explanation for the failure to act. 48. Firstly, although the Valencia City Council was not the direct source of the noise pollution, it had, in the applicant ’ s submission, caused the acoustic saturation by issuing an unlimited number of licences, without taking measures to comply with the law. The applicant referred to the principles that had been established in the case of Lopez Ostra v. Spain (judgment of 9 December 1994, Series A no. 303 ‑ C, § 51), which concerned the effects of pollution outside the home but also the frame of reference for fundamental rights, in particular the home. She added that the municipal bylaw required measurements of noise emissions from external sources to be taken at the front of the building in which the dwelling was located. 49. In her additional observations of 14 September 2004, the applicant observed that the level of the night-time disturbance (from 10 p.m. to 6. 30 p.m.) caused by more than 127 nightclubs infringed the right to health, as indeed was confirmed by the World Health Organisation ’ s guidelines. Unlike the position in the case of Hatton and Others v. the United Kingdom [GC] (no. 36022/97, ECHR 2003-VIII), her home was neither within nor adjacent to an area of vital importance, such as an area relevant to a strategic transport or communications infrastructure. She stressed that her home was in an urban area, specifically, a residential one. 2. The Government 50. The Government submitted that the noise to which the applicant referred came from private activities and that, consequently, there had not been direct interference by the authorities in the right to the intimacy of the home and to respect for private and family life. They added that the Valencia City Council had taken various measures in order to solve the problem of acoustic pollution in the area in which the applicant lived. These included preparing and approving a comprehensive and stringent municipal bylaw, designating acoustically saturated zones and a policy of imposing penalties, withdrawing licences and prosecuting offenders. 51. Even assuming that the applicant had been exposed from time to time to acoustic pollution and had been able to prove the effect of the noise inside her home, the relevant authorities had already taken sufficient measures to remedy the situation. 52. In addition, the courts had noted in their decisions that the applicant had failed to establish that she had been exposed to noise inside her home emanating from night-time disturbances and that, in any event, Article 8 protection was restricted to the home and could not apply when the subject matter of the complaint was a nuisance outside the home. The Government accordingly maintained that no interference with the applicant ’ s right to respect for her home could be found. B. The Court ’ s assessment 1. General principles 53. Article 8 of the Convention protects the individual ’ s right to respect for his private and family life, his home and his correspondence. A home will usually be the place, the physically defined area, where private and family life develops. The individual has a right to respect for his home, meaning not just the right to the actual physical area, but also to the quiet enjoyment of that area. Breaches of the right to respect of the home are not confined to concrete or physical breaches, such as unauthorised entry into a person ’ s home, but also include those that are not concrete or physical, such as noise, emissions, smells or other forms of interference. A serious breach may result in the breach of a person ’ s right to respect for his home if it prevents him from enjoying the amenities of his home (see Hatton and Others v. the United Kingdom cited above, § 96). 54. Thus in the case of Powell and Rayner v. the United Kingdom (judgment of 21 February 1990, Series A no. 172, § 40), the Court declared Article 8 applicable because: “In each case, albeit to greatly differing degrees, the quality of the applicant ’ s private life and the scope for enjoying the amenities of his home ha[d] been adversely affected by the noise generated by aircraft using Heathrow Airport”. In the aforementioned case of López Ostra v. Spain, which concerned noise pollution and a waste-treatment plant, the Court said: “severe environmental pollution may affect individuals ’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health”. In the case of Guerra and Others v. Italy (judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, § 57), the Court observed: “The direct effect of the toxic emissions on the applicants ’ right to respect for their private and family life means that Article 8 is applicable”. Lastly, in the case of Surugiu v. Romania (no. 48995/99, 20 April 2004), which concerned various acts of harassment by third parties who entered the applicant ’ s yard and dumped several cartloads of manure in front of the door and under the windows of the house, the Court found that the acts constituted repeated interference by third parties with the applicant ’ s right to respect for his home and that Article 8 of the Convention was applicable. 55. Although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it may involve the authorities ’ adopting measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see, among other authorities, Stubbings and Others v. the United Kingdom, judgment of 22 October 1996, Reports 1996-IV, pp. 1505, § 62; and Surugiu v. Romania, cited above, § 59). Whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants ’ rights under paragraph 1 of Article 8 or in terms of an interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, in striking the required balance the aims mentioned in the second paragraph may be of a certain relevance (see Hatton and Others v. the United Kingdom, cited above, § 98). 56. The Court reiterates that the Convention is intended to guarantee rights that are “practical and effective”, not “theoretical or illusory” (see, among other authorities, Papamichalopoulos and Others v. Greece, judgment of 24 June 1993, Series A no. 260-B, § 42). 2. Application of the above principles in the instant case 57. The present case does not concern interference by public authorities with the right to respect for the home, but their failure to take action to put a stop to third-party breaches of the right relied on by the applicant. 58. The Court notes that the applicant lives in an area that is indisputably subject to night-time disturbances; this clearly unsettles the applicant as she goes about her daily life, particularly at weekends. The Court must now determine whether the nuisance caused by the noise attained the minimum level of severity required for it to constitute a violation of Article 8. 59. The Government have argued that the domestic courts found that the applicant has failed to establish the noise levels inside her home. The Court considers that it would be unduly formalistic to require such evidence in the instant case, as the City authorities have already designated the area in which the applicant lives an acoustically saturated zone, which, according to the terms of the municipal bylaw of 28 June 1986, means an area in which local residents are exposed to high noise levels which cause them serious disturbance (see paragraph 44 above). In the present case, the fact that the maximum permitted noise levels have been exceeded has been confirmed on a number of occasions by council staff (see paragraphs 14 and 19 above). Consequently, there appears to be no need to require a person from an acoustically saturated zone such as the one in which the applicant lives to adduce evidence of a fact of which the municipal authority is already officially aware. Thus, in the domestic proceedings, the representative of state council ’ s office did not consider it necessary to require the applicant to adduce such evidence (see paragraph 31 above) and added that there had been a reversal of the burden of proof in the present case. 60. In view of the volume of the noise – at night and beyond the permitted levels – and the fact that it continued over a number of years, the Court finds that there has been a breach of the rights protected by Article 8. 61. Although the Valencia City Council has used its powers in this sphere to adopt measures (such as the bylaw concerning noise and vibrations) which should in principle have been adequate to secure respect for the guaranteed rights, it tolerated, and thus contributed to, the repeated flouting of the rules which it itself had established during the period concerned. Regulations to protect guaranteed rights serve little purpose if they are not duly enforced and the Court must reiterate that the Convention is intended to protect effective rights, not illusory ones. The facts show that the applicant suffered a serious infringement of her right to respect for her home as a result of the authorities ’ failure to take action to deal with the night-time disturbances. 62. In these circumstances, the Court finds that the respondent State has failed to discharge its positive obligation to guarantee the applicant ’ s right to respect for her home and her private life, in breach of Article 8 of the Convention. 63. There has consequently been a violation of that provision. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 64. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 65. The applicant claimed 879 euros (EUR) on account of pecuniary damage for the double glazing she had had installed in her bedroom. She also claimed EUR 3,005 for non-pecuniary damage. 66. The Government did not make any submissions on this point. 67. The Court notes that the sole ground for awarding the applicant just satisfaction in the instant case is the failure of the relevant authorities to take the action they could reasonably have been expected to take to put a stop to the infringement of the applicant ’ s right to respect for her home. The Court therefore finds that there was a causal link between the violation of the Convention and any pecuniary damage sustained by the applicant. She is therefore entitled to an award under that head. Ruling on an equitable basis, as required by Article 41, it finds that the authorities ’ failure to take action undeniably caused the applicant non-pecuniary damage for which she should also receive compensation and awards her EUR 3,884 for pecuniary and non-pecuniary damage. B. Costs and expenses 68. The applicant also claimed EUR 4,952.15 for the costs and expenses she had incurred before the domestic courts and the Court. In her statement of account, she breaks down her claim into (1) the fees and expenses of her representative in the proceedings before the domestic courts (EUR 2,091.53), (2) the fees and expenses of her representative in the proceedings before the European Court of Human Rights (EUR 2,091.53) and (3) the cost of translation services (EUR 769.10). 69. The Government did not make any submissions on this point. 70. Under the Court ’ s case-law, applicants may recover reimbursement of their costs and expenses only in so far as they have been actually and necessarily incurred and are reasonable as to quantum. In the instant case, and having regard to the material before it and the aforementioned criteria, the Court considers it reasonable to award the applicant EUR 4,500. C. Default interest 71. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | In view of the volume of the noise, at night and beyond permitted levels, and the fact that it had continued over a number of years, the Court found that there had been a breach of the rights protected by Article 8 of the Convention. Although the City Council had used its powers in this sphere to adopt measures (such as a bylaw concerning noise and vibrations) which should in principle have been adequate to secure respect for the guaranteed rights, it had tolerated, and thus contributed to, the repeated flouting of the rules which it itself had established during the period concerned. In these circumstances, finding that the applicant had suffered a serious infringement of her right to respect for her home as a result of the authorities’ failure to take action to deal with the night-time disturbances, the Court held that Spain had failed to discharge its positive obligation to guarantee her right to respect for her home and her private life, in breach of Article 8 of the Convention. |
817 | Prohibition of discrimination (Article 14 of the Convention and Article 1 of Protocol No. 12 to the Convention) | RELEVANT LEGAL FRAMEWORK The Sporting Achievements Recognition and Rewards Decree ( Uredba o nacionalnim priznanjima i nagradama za poseban doprinos razvoju i afirmacji sporta, published in the Official Gazette of the Republic of Serbia – OG RS – nos. 65/06 and 06/07) 24. Article 2 § 1 provided that athletes and players, nationals of the Republic of Serbia, who had won a medal, as members of the national team of Yugoslavia or of the State Union of Serbia and Montenegro or the national team of the Republic of Serbia, at the Olympic Games, the Paralympic Games, the Chess Olympiad, or at a world or a European championship in an Olympic sport, or who had been world record holders in such a discipline, as well as their coaches if they too were nationals of the Republic of Serbia, were all entitled to a “national sporting recognition award” ( nacionalono sportsko priznanje ). 25. Article 2 § 2, inter alia, defined the national sporting recognition award as consisting of an honorary diploma and a lifetime monthly cash benefit. 26. Article 2 § 2 (1) provided, inter alia, that the monthly cash benefit was to be in the amount of three average net salaries in the Republic of Serbia for the month of December of the previous year for a gold medal won at the Olympic Games, the Paralympic Games or the Chess Olympiad. 27. Article 2 § 2 (2) provided, inter alia, that the monthly cash benefit was to be in the amount of two and a half average net salaries in the Republic of Serbia for the month of December of the previous year for a silver medal won at the Olympic Games, the Paralympic Games or the Chess Olympiad. 28. Article 2 §§ 3 and 4 provided that the national sporting recognition award could be bestowed upon the same athlete or coach only once and that it was to be formally presented on the National Day of the Republic of Serbia. 29. Article 3 provided, inter alia, that athletes and players, nationals of the Republic of Serbia, who had won a medal, as members of the national team of the Republic of Serbia, at the Olympic Games, the Paralympic Games, the Chess Olympiad, or at a world or a European championship in an Olympic sport or chess, were also entitled to a one-time cash payment in accordance with the decree. 30. Article 4 § 1 specified that for a medal won in a team sport at the Olympic Games, the Paralympic Games or the Chess Olympiad the team in question would be paid EUR 400,000 in RSD for a gold medal, EUR 350,000 in RSD for a silver medal, and EUR 300,000 in RSD for a bronze medal. 31. Article 4 § 2 provided, inter alia, that for a medal won at the Olympic Games or the Paralympic Games in individual sports athletes were personally entitled to a one-time cash payment in the amount of 15% of the sums mentioned in Article 4 § 1 above. 32. Article 4 §§ 4 and 5 provided that for a medal won at the Olympic Games or the Paralympic Games by a team the one-time cash payment was to be adjusted taking into account the size of the team itself. It also set out the exact calculation method for so doing. 33. Article 7 provided, inter alia, that the national sporting recognition awards referred to in Article 2 § 2 of this decree, as well as the one-time cash payment, were to be granted by the Government on the proposal of the ministry in charge of sports and that an athlete or player would be entitled to receive the lifetime monthly cash benefit upon reaching the age of 35. 34. In 2009 this decree was repealed and replaced by another decree regulating the same subject matter. Other decrees on the issue and their amendments were enacted in 2013, 2015, 2016, 2017 and 2019. The decree of 2009, inter alia, specified that athletes and players who had won a medal prior to 15 April 2009 would be entitled to the recognition and rewards as provided in the earlier regulations, that is in the decree summarised in paragraphs 24-33 above. The Prohibition of Discrimination Act ( Zakon o zabrani diskriminacije, published in OG RS no. 22⁄09) 35. Article 43 sets out the various forms of judicial redress available to victims of discrimination, including on the basis of disability. They include injunctive and declaratory relief, such as the recognition of the discrimination suffered and its prohibition in the future, as well as compensation for any pecuniary and non-pecuniary damage. The publication in the media of a civil court’s judgment rendered in this context may also be ordered. 36. This Act entered into force on 7 April 2009 and has since then been amended once, in 2021. The General Administrative Proceedings Act ( Zakon o opštem upravnom postupku; published in the Official Gazette of the Federal Republic of Yugoslavia – OG FRY – nos. 33/97 and 31/01) 37. Article 208 § 1 provided, inter alia, that in simple matters an administrative body was obliged to issue a decision within one month as of when the claimant had lodged his or her request. In all other cases, the administrative body was to render a decision within two months thereof. 38. Article 208 § 2 enabled the claimant whose request had not been decided within the periods established in the previous paragraph to lodge an appeal as if his or her request had been denied. Where an appeal was not allowed, the claimant had the right to directly initiate an administrative dispute before a relevant court of law. 39. This Act was subsequently amended, in 2010, and was ultimately repealed and replaced by other legislation enacted in 2016. The Administrative Disputes Act ( Zakon o upravnim sporovima; published in OG FRY no. 46/96) 40. Article 6 provided that an administrative dispute could only be brought against an “administrative act”, which was an act/decision adopted by a State body in the determination of one’s rights and obligations concerning “an administrative matter”. Article 9 § 1, however, provided, inter alia, that an administrative dispute could not be instituted in respect of matters where “judicial redress” was “secured outside [of the context] of an administrative dispute”. 41. Articles 8 and 24 provided, inter alia, that a claimant who had lodged a request with an administrative body would have the right to bring an administrative dispute before a court of law in the following situations: (a) Where an appellate body failed to issue a decision upon his or her appeal within sixty days, or indeed a shorter deadline if so provided by law, the claimant could repeat the request and if the appellate body declined to rule within an additional period of seven days the claimant could institute an administrative dispute. (b) In accordance with, mutatis mutandis, the conditions set out under (a) above, where a first instance administrative body failed to issue a decision and there was no right to an appeal, the claimant could directly institute an administrative dispute. (c) Where a first instance administrative body failed to issue a decision upon the claimant’s request within sixty days, or indeed a shorter deadline if so provided by law, as regards matters where an appeal was not excluded, the claimant had the right to lodge the said request with the appellate administrative body. Where that body rendered a decision, the claimant had the right to institute an administrative dispute against it, and where it failed to rule the claimant could institute an administrative dispute in accordance with, mutatis mutandis, the conditions set out under (a) above. 42. This Act was repealed and replaced by other legislation on 30 December 2009. THE LAW joinder of the applications 43. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. alleged VIOLATIONs of Article 1 of protocol no. 12 Scope of the case Scope of the case Scope of the case 44. The applicants are blind chess players and Serbian nationals who had won medals for Yugoslavia internationally, notably in the Blind Chess Olympiad. They complained that they had been discriminated against by the Serbian authorities by being denied certain financial awards, i.e. a lifetime monthly cash benefit as well as a one-time cash payment (see paragraphs 24-33 above), unlike all other athletes and chess players, including sighted chess players or other athletes or players with disabilities, who had won similar international accolades. 45. The applicants furthermore complained that as part of the above-alleged discrimination, including the failure of the Serbian authorities to formally recognise their achievements through an honorary diploma (see paragraph 25 above), they had suffered adverse consequences to their reputations respectively. 46. These complaints were communicated to the Government under Article 14 of the Convention, read in conjunction with Article 8 thereof and Article 1 of Protocol No. 1, as well as under Article 1 of Protocol No. 12. 47. Having regard to the substance of the applicants’ complaints and the relevant context, however, the Court, which is the master of the characterisation to be given in law to the facts of any case before it (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, ECHR 2018), is of the opinion that all of the complaints in the present case should be examined from the standpoint of Article 1 of Protocol No. 12 only (see, mutatis mutandis, Napotnik v. Romania, no. 33139/13, § 52, 20 October 2020). That provision reads as follows: “1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.” As regards the applicants’ complaints that they had been discriminated against by being denied certain financial awards (see paragraph 44 above) Admissibility Admissibility Admissibility (a) The Court’s jurisdiction ratione materiae 48. The Government argued that since the Blind Chess Olympiad had not been among the competitions listed in the Sporting Achievements Recognition and Rewards Decree, the applicants had consequently not been entitled to acquire any pecuniary benefits in this connection. 49. The applicants maintained that they should have been granted the same awards as all other athletes and players, including sighted chess players, with similar international accolades. 50. At the outset, the Court reiterates that as the question of applicability is an issue of its jurisdiction ratione materiae, the general rule of dealing with applications should be respected and the relevant analysis should be carried out at the admissibility stage unless there is a particular reason to join this question to the merits (see Denisov v. Ukraine [GC], no. 76639/11, § 93, 25 September 2018). No such particular reason exists in the present case, and the issue of the applicability of Article 1 of Protocol No. 12 therefore falls to be examined at the admissibility stage. 51. The Court reiterates that whereas Article 14 of the Convention prohibits discrimination in the enjoyment of “the rights and freedoms set forth in [the] Convention”, Article 1 of Protocol No. 12 introduces a general prohibition of discrimination (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 53, ECHR 2009, and Baralija v. Bosnia and Herzegovina, no. 30100/18, § 45, 29 October 2019). 52. It is important to note that Article 1 of Protocol No. 12 extends the scope of protection to not only “any right set forth by law”, as the text of paragraph 1 might suggest, but beyond that. This follows in particular from paragraph 2, which further provides that no one may be discriminated against by a public authority (see Savez crkava “Riječ života” and Others v. Croatia, no. 7798/08, § 104, 9 December 2010, and Napotnik, cited above, § 55). According to the Explanatory Report on Article 1 of Protocol No. 12, the scope of protection of that provision concerns four categories of cases in particular where a person is discriminated against: “i. in the enjoyment of any right specifically granted to an individual under national law; ii. in the enjoyment of a right which may be inferred from a clear obligation of a public authority under national law, that is, where a public authority is under an obligation under national law to behave in a particular manner; iii. by a public authority in the exercise of discretionary power (for example, granting certain subsidies); iv. by any other act or omission by a public authority (for example, the behaviour of law enforcement officers when controlling a riot).” The Explanatory Report further clarifies that: “... it was considered unnecessary to specify which of these four elements are covered by the first paragraph of Article 1 and which by the second. The two paragraphs are complementary and their combined effect is that all four elements are covered by Article 1. It should also be borne in mind that the distinctions between the respective categories i-iv are not clear-cut and that domestic legal systems may have different approaches as to which case comes under which category.” 53. Therefore, in order to determine whether Article 1 of Protocol No. 12 is applicable, the Court must establish whether the applicants’ complaints fall within one of the four categories mentioned in the Explanatory Report (see Savez crkava “Riječ života” and Others, cited above, § 105, and Napotnik, cited above, § 56). 54. In this connection, the Court notes that the domestic law (see paragraphs 24-32 above), as interpreted by the national courts (see paragraphs 15, 17 and 19 above), provided that only chess players who had won medals at the Chess Olympiad, otherwise organised for sighted chess players only, were entitled to certain financial awards, thus effectively disqualifying all other chess players including those who, such as the applicants, had won their medals at the Blind Chess Olympiad. It follows that the Serbian authorities, when deciding to enact such legislation, clearly exercised their discretionary power in such a way as to treat differently the sighted and the blind chess players despite them winning similar international accolades. Consequently, the Court cannot but conclude that the applicants’ complaints fall under category (iii) of potential discrimination as envisaged by the Explanatory Report (see paragraph 52 above). 55. In view of the foregoing, Article 1 of Protocol No. 12 is applicable to the facts of the applicants’ complaints and the Government’s implicit objection in this regard must be rejected. (b) Exhaustion of domestic remedies (i) The parties submissions 56. The Government maintained that the applicants had failed to make use of an existing and effective domestic remedy. In particular, and as noted by the domestic civil courts themselves, the applicants should have properly brought an administrative dispute with respect to their complaints relating to the national sporting recognition awards (see paragraphs 13, 15 and 37-42 above). Moreover, the Government pointed out that the applicants had clearly been aware of this avenue of redress but had, for some reason, decided not to pursue it (see paragraph 9 above). 57. The applicants submitted that they had complied with the exhaustion requirement, particularly since their complaints had concerned discrimination and they had brought an anti-discrimination civil lawsuit in this regard (see paragraph 35 above). (ii) The Court’s assessment (α) Relevant principles 58. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring a case against a State before the Court to firstly use the remedies provided by the national legal system. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right domestically (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 70, 25 March 2014). 59. The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Vučković and Others, cited above, § 71). 60. To be effective, a remedy must likewise be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004, and Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006 ‑ II). However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (see, for example, Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 70, 17 September 2009, and Vučković and Others, cited above, § 74). 61. An applicant’s failure to make use of an available domestic remedy or to make proper use of it (that is to say by bringing a complaint at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law) will result in an application being declared inadmissible before this Court (see Vučković and Others, cited above, § 72). 62. The Court has, however, also frequently underlined the need to apply the exhaustion rule with some degree of flexibility and without excessive formalism (ibid., § 76, with further references). For example, where more than one potentially effective remedy is available, the applicant is only required to use one remedy of his or her own choosing (see, among many other authorities, Micallef v. Malta [GC], no. 17056/06, § 58, ECHR 2009; Nada v. Switzerland [GC], no. 10593/08, § 142, ECHR 2012; Göthlin v. Sweden, no. 8307/11, § 45, 16 October 2014; and O’Keeffe v. Ireland [GC], no. 35810/09, §§ 109-111, ECHR 2014 (extracts)). Also, it would, for example, be unduly formalistic to require the applicants to exercise a remedy which even the highest court of their country would not oblige them to exhaust (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, §§ 117 and 118, ECHR 2007 ‑ IV). 63. With respect to legal systems which provide constitutional protection for fundamental human rights and freedoms, such as the one in Serbia, it is incumbent on the aggrieved individual to test the extent of that protection (see Vinčić and Others v. Serbia, nos. 44698/06 and 30 others, § 51, 1 December 2009). 64. As regards the burden of proof, it is up to the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time. Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see and Vučković and Others, cited above, § 77, with further references). (β) Application of these principles to the present case 65. Turning to the present case, the Court notes that, as stated by the applicants themselves, the very substance of their complaints concerned allegations of discrimination (see paragraphs 44 and 57 above). In those circumstances it cannot be deemed unreasonable for them to have sought redress on the basis of the national anti-discrimination legislation, which specifically provided for various forms of injunctive and/or declaratory relief to victims of such treatment, as well as compensation for any pecuniary and non-pecuniary damage suffered (see paragraph 35 above; see also, mutatis mutandis, Vučković and Others, cited above, § 78). 66. Furthermore, an administrative dispute would not have offered, in the very specific circumstances of the present case, a more reasonable prospect of success, compared to the civil lawsuit (see paragraphs 60 and 62 above). The Government, for their part, provided no relevant domestic case-law showing that any other claimants had ever obtained redress through this legal avenue in respect of discrimination-related claims brought in connection with the sporting recognition awards system (see paragraph 64 above). 67. The applicants lastly, albeit unsuccessfully, tested the extent of the protection for fundamental human rights and freedoms afforded by the Constitutional Court, it being noted that as of 7 August 2008 a constitutional appeal has, in principle, been considered by the Court as an effective domestic remedy within the meaning of Article 35 § 1 of the Convention (see Vučković and Others, cited above, § 61). The Constitutional Court was thus given an opportunity to expand this protection by way of interpretation (see paragraph 63 above; see also Vučković and Others, cited above, § 84, with further references) but held that there had been no discrimination in the present case. In so doing, however, it did not reject the applicants’ complaints on the grounds that they had not properly exhausted any other, prior, effective legal avenue, including the administrative dispute proceedings, as it could have done (see paragraph 19 above). It would hence also be unduly formalistic for the Court to now hold otherwise (see paragraph 62 above in fine; see also, mutatis mutandis, Dragan Petrović v. Serbia, no. 75229/10, §§ 55 and 57, 14 April 2020). 68. In view of the foregoing, the Government’s objection as to the non-exhaustion of domestic remedies, within the meaning of Article 35 § 1 of the Convention, must be rejected. (c) As regards other grounds of inadmissibility 69. The Court notes that the applicants’ complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. Merits (a) Submissions by the parties 70. The applicants essentially reaffirmed their complaints as set out in paragraph 44 above. They further maintained that the respondent State had continued to discriminate against blind chess players on the basis of their sensory impairment notwithstanding their undisputed sporting achievements. 71. The Government submitted that the applicants had not suffered any discrimination in the present case. The Sporting Achievements Recognition and Rewards Decree had pursued certain objectives, notably the recognition of only the highest sporting achievements in the most important competitions. In deciding which sports should be included, a number of criteria had been employed: (i) the popularity of the sport and its tradition in Serbia; (ii) the sport’s significance internationally; (iii) its contribution to the “development and affirmation” of the country’s reputation; (iv) the need to distinguish between “Olympic and non-Olympic sports”; and (v) the country’s budgetary constraints. 72. The Government further pointed out that although chess was not an Olympic sport, the International Olympic Committee had recognised FIDE as the supreme body responsible for the advancement of chess. FIDE had also adopted the rules of the game and had organised chess Olympiads, world championships and other competitions under its auspices. Chess had therefore been included among the sports listed in the Sporting Achievements Recognition and Rewards Decree, but not the Blind Chess Olympiad as such. In this connection, the Government stated that there had also been many other important competitions which had not been included based on the above-mentioned criteria. Among others, for example, amateurs, junior athletes and veterans had all been excluded. Most notably, even though the Serbian national youth team (the under 20s) had won the 2015 FIFA World Cup in football, which had been a major success in the Serbian context and a feat which had delighted the entire nation, the members of this team had not been eligible to receive any national sporting recognition awards. 73. The Government lastly endorsed the reasoning of the Supreme Court of Cassation and that of the Constitutional Court, including reasons to the effect that there had been no evidence that any other blind chess players had ever received the national recognition awards in question, the implication being that all blind chess players had thus been treated equally (see paragraphs 17 and 19 above). (b) The Court’s assessment (i) Relevant principles 74. Notwithstanding the difference in scope between Article 14 of the Convention and Article 1 of Protocol No. 12, the meaning of the notion of “discrimination” in Article 1 of Protocol No. 12 was intended to be identical to that in Article 14 (see paragraphs 18 and 19 of the Explanatory Report to Protocol No. 12). In applying the same term under Article 1 of Protocol No. 12, the Court therefore sees no reason to depart from the established interpretation of “discrimination” (see Sejdić and Finci, cited above, § 55, and Napotnik, cited above, § 69). 75. It can further be inferred that, in principle, the same standards developed by the Court in its case-law concerning the protection afforded by Article 14 are applicable to cases brought under Article 1 of Protocol No. 12 (see, for example, Napotnik, cited above, § 70). 76. In this vein, the Court reiterates that only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 (see Fábián v. Hungary [GC], no. 78117/13, § 113, 5 September 2017), which includes discrimination based on disability (see, for example, Glor v. Switzerland, no. 13444/04, § 80, ECHR 2009). Moreover, in order for an issue to arise under Article 14, there must be a difference in the treatment of persons in analogous, or relevantly similar, situations (see Molla Sali v. Greece [GC], no. 20452/14, § 133, 19 December 2018). Such a difference in treatment is discriminatory if it has no objective and reasonable justification, or in other words, if it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised (ibid., § 135). 77. Moreover, in cases concerning a complaint under Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1, although the latter provision does not, for example, include the right to receive a social security payment of any kind, if a State does decide to create a benefits scheme, it must do so in a manner which is compatible with Article 14 (see, for example, Stummer v. Austria [GC], no. 37452/02, § 83, ECHR 2011, and Fábián, cited above, § 117, both with further references). 78. The Contracting States also enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and its background (see, for example, Stummer, cited above, § 88). In cases concerning disability, the States’ margin of appreciation in establishing different legal treatment for people with disabilities has been deemed as reduced considerably ( see Glor, cited above, § 84). 79. Referring in particular to Recommendation 1592 (2003) towards full social inclusion of people with disabilities, adopted by the Parliamentary Assembly of the Council of Europe on 29 January 2003, and the United Nations Convention on the Rights of Persons with Disabilities, adopted on 13 December 2006, the Court has opined that there was a European and worldwide consensus on the need to protect people with disabilities from discriminatory treatment (see Glor, cited above, § 53). This included an obligation for the States to ensure “reasonable accommodation” to allow persons with disabilities the opportunity to fully realise their rights, and a failure to do so amounted to discrimination (see, among other authorities, Enver Şahin v. Turkey, no. 23065/12, §§ 67-69, 30 January 2018; Çam v. Turkey, no. 51500/08, §§ 65-67, 23 February 2016; and G.L. v. Italy, no. 59751/15, §§ 60-66, 10 September 2020). 80. As to the burden of proof, the Court has held that once the applicant has demonstrated a difference in treatment, it is for the Government to show that the difference in treatment was justified (see, for example, Molla Sali, cited above, § 137, and Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 85, ECHR 2013 (extracts)). (ii) Application of these principles to the present case (α) Whether there was a difference in treatment 81. The Court notes that the complaints in question concern the respondent State’s decision not to provide the applicants with at least one financial benefit, i.e. the lifetime monthly cash benefit, which they would have received had they won medals in competitions as sighted rather than blind chess players. In particular, this benefit was to be paid to sighted chess players for winning medals in the Chess Olympiad but not to blind chess players for winning medals in the Blind Chess Olympiad, the former competition having been listed in the decree but the latter competition not having been specifically mentioned therein (see paragraphs 24 and 25 above). The situation with the one-time cash payment, however, seems less clear since Article 3 of the decree referred only to persons who had won medals for Serbia rather than both Serbia and Yugoslavia (compare and contrast paragraphs 24 and 29 above; at the same time, however, see also paragraph 12 above in support of an affirmative position on the issue expressed by the Novi Sad Court of First Instance on 1 April 2010). 82. The applicants were thus at least partly treated differently based on a ground of distinction covered by Article 1 of Protocol No. 12, namely their disability (see, mutatis mutandis, paragraphs 75 and 76 above). (β) Whether the two groups of persons were in comparable situations 83. In view of the above, the applicants as blind chess players who had won their medals at the Blind Chess Olympiad, on the one hand, and the sighted chess players who had won their medals at the Chess Olympiad, on the other, must, in the Court’s opinion, be seen as two groups of persons engaging in the same activity, i.e. playing chess, and, furthermore, as two groups whose members had attained some of the highest international accolades. 84. It follows that the blind chess players and the sighted chess players, in the context of the present case and within the meaning of the Court’s case-law have to be deemed as two groups of persons in analogous or relevantly similar situations (see paragraphs 75 and 76 above). (γ) Whether there was an objective and reasonable justification 85. The Government argued that the Sporting Achievements Recognition and Rewards Decree had pursued a justified objective, specifically the recognition of only the highest sporting achievements in the most important competitions. The exact relevant criteria referred to by the Government have been set out in paragraph 71 above. 86. In this context, the Court reiterates at the outset that although Article 1 of Protocol No. 12 does not include the right to receive payment of a benefit of any kind, if a State does decide to create a particular benefit, it must do so in a manner which is compatible with this provision (see paragraphs 75 and 77 above). In other words and in the context of the present case, since the respondent State decided to set up a sporting achievements recognition and rewards system it had to do so in such a way as to comply with Article 1 of Protocol No. 12. 87. Furthermore, while it was obviously legitimate for the Serbian authorities to focus on the highest sporting achievements and the most important competitions, the Court notes that the Government have not shown why the undoubtedly high accolades won by the applicants, as blind chess players, would have been less “popular” or “internationally significant” than similar medals won by sighted chess players (see paragraph 80 above). Indeed, in its letter addressed to the Ministry of Youth and Sport, the IBCA itself stated, inter alia, that blind chess players were, based on their results, “on the single official list of FIDE together with chess players without sight impairment” and requested that they be treated “in accordance with the basic postulates of ethics and fair-play in sports” (see paragraph 21 above). In any event, it is, in the Court’s view, inconceivable that the “prestige” of a game or a sport as such, including for example some of the most popular sports such as football, basketball or tennis, should depend merely on whether it is practised by persons with or without a disability. Indeed, the Court notes that the decree itself placed the Olympics and the Paralympics on an equal footing and thus regarded the achievements of disabled sportsmen and sportswomen in the sports concerned as meriting equal recognition. 88. Also, in terms of the contribution of chess to the “development and affirmation” of the country’s reputation, equal treatment of blind and sighted chess players for similar achievements, in Serbian legislation as well as in practice, could only have served to enhance the country’s reputation abroad and promote inclusiveness domestically. 89. The Government likewise attempted to distinguish between Olympic and non-Olympic sports but this distinction is of no relevance in the present context since neither the Chess Olympiad for sighted chess players, which was among the listed competitions in the decree, nor the Blind Chess Olympiad for blind chess players, which was not included in the same decree, were part of the Olympic or Paralympic Games organised by the International Olympic Committee and International Paralympic Committee respectively (see paragraph 23 above). 90. As regards the budgetary constraints referred to by the Government, the Court notes that, apparently, of all the medal winners and champions over the years, that is a total of some 400 persons including sighted chess players, only blind chess players had been denied their national sporting recognition awards (see paragraph 22 above). Adding the four applicants to this number, therefore, clearly could not have undermined the country’s financial stability, particularly since there is also no suggestion that winning a medal at the Blind Chess Olympiad is, generally speaking, an easily attainable achievement capable of giving rise to many future entitlements. 91. Lastly, the Court considers that the Government’s submissions to the effect that there was no evidence that any other blind chess players had ever received the national recognition awards in question (see paragraph 73 above) are of no relevance in terms of the difference in treatment between sighted and blind chess players when it comes to their sporting recognition entitlements. (δ) Conclusion 92. In view of the foregoing and notwithstanding the State’s margin of appreciation, the Court cannot but conclude that there was no “objective and reasonable justification” for the differential treatment of the applicants merely on the basis of their disability, it being understood that the said margin is reduced considerably in this particular context (see paragraphs 75 and 78 above). There has accordingly been a violation of Article 1 of Protocol No. 12. As regards the applicants’ complaints that as part of the above-established discrimination, as well as the failure of the Serbian authorities to formally recognise their achievements through an honorary diploma, they had suffered adverse consequences to their reputations respectively (see paragraph 45 above) 93. Having regard to the facts of the case and the submissions of the parties, as well as its findings as set out in paragraphs 81-92 above, the Court considers that it is not necessary to further examine either the admissibility or the merits of these complaints under Article 1 of Protocol No. 12 (see, for example and mutatis mutandis, Kaos GL v. Turkey, no. 4982/07, § 65, 22 November 2016, and Aktiva DOO v. Serbia, no. 23079/11, § 89, 19 January 2021). Application of Article 41 of the Convention 94. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 95. The applicants referred to the judgments rendered by the Novi Sad Court of First Instance on 1 April 2010 and 14 November 2011 respectively, notably the redress afforded therein for the pecuniary and non-pecuniary damage allegedly suffered (see paragraphs 12 and 14 above), and added that “blind chess players [should] also have the right to a cash reward as well as [a] regular monthly income” for their achievements. 96. The Government contested these claims. 97. The Court considers that the applicants have certainly suffered some non-pecuniary damage. Having regard to the nature of the violation found in the present case and making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards each applicant EUR 4,500 in this connection, plus any tax that may be chargeable on that amount. 98. Concerning the pecuniary damage, the Government must pay each applicant the accrued and any future financial benefits and/or awards to which he would have been entitled had he been a sighed chess player who had won, for Yugoslavia, a relevant medal at the Chess Olympiad for sighted chess players (see paragraphs 24-34 above), together with the applicable domestic statutory interest as regards the accrued benefits and/or awards only (see, mutatis mutandis, Grudić v. Serbia, no. 31925/08, § 92, 17 April 2012). Costs and expenses 99. The applicant claimed no costs or expenses. Accordingly, the Court makes no award under this head. Default interest 100. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 1 (general prohibition of discrimination) of Protocol No. 12 to the Convention, finding that there had been no objective and reasonable justification for treating the applicants differently on the basis of their disability. It noted, in particular, that while it was legitimate for the Serbian authorities to focus on the highest sporting achievements and the most important competitions in its award system, they had not shown why the high accolades won by the applicants, as blind chess players, were less significant than similar medals won by sighted chess players. The prestige of a game or a sport should not depend on whether it is practised by persons with or without a disability. Indeed, the Court pointed out that the Sporting Achievements Recognition and Rewards Decree itself, introduced by Serbia in 2016, which provided for a national recognition and rewards system consisting of an honorary diploma, a lifetime monthly cash benefit, and a one-off cash payment, had placed the Olympics and the Paralympics on an equal footing and thus regarded the achievements of disabled sportsmen and sportswomen as meriting equal recognition. Moreover, the distinction between Olympic and non-Olympic sports which had been used as an argument by the Serbian Government was of no relevance since the Chess Olympiad for sighted chess players, which was among the listed competitions in the decree, was neither part of the Olympic nor the Paralympic Games. |
162 | Sterilisation operations | II. RELEVANT DOMESTIC LAW AND PRACTICE 22. A series of laws concerning the public health service and patients ’ rights establish an obligation to inform a patient about any surgical procedure proposed, the risks involved in the procedure, alternative treatment, and diagnosis and prognosis : Laws nos. 3/1978 and 306/2004 on public health insurance; Law no. 74/1995 on the establishment and functioning of the College of Doctors; Law no. 46/2003 on patients ’ rights (“Law no. 46/2003”); and Law no. 95/2006 on reform of the medical sector (“Law no. 95/2006” ). 23. According to Article 37 of Law no. 46/2003, a breach of a patient ’ s right to be informed and consulted may engage disciplinary or criminal action against the medical practitioner, depending on the applicable law. 24. The judgement delivered in the case of Eugenia Lazăr v. Romania (no. 32146/05, §§ 41-54, 16 February 2010) describes in detail the relevant domestic case-law and practice concerning the delivery of medico-legal expert reports and the authorities competent for their issuance, as well as the relevant domestic case-law and practice concerning the civil liability of medical staff. 25. In the judgment rendered in the case of Codarcea v. Romania, the Court described in detail the relevant domestic practice concerning the civil liability of doctors and hospitals for medical errors (see Codarcea v. Romania, no. 31675/04, § § 69-74, 2 June 2009 ). 26. Law no. 95/2006 introduced the notion of medical negligence as a basis for the liability of medical personnel and created an obligation on them to obtain insurance for any civil liability resulting from their work (see Eugenia Lazăr, cited above, § 54). THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 27. Relying on Articles 2, 6 and 13 of the Convention, the applicant complained that she had not been properly informed of the risks of the procedure and that because of medical negligence her life had been endangered and she had become permanently unable to bear children. She considered that the investigation of the case had been superficial and that the forensic authorities had lacked impartiality in issuing the medical expert reports, leading to a situation in which she had not obtained recognition of the serious bodily harm inflicted on her and a guilty person had been protected. 28. The Court is master of the characterisation to be given in law to the facts, and can decide to examine complaints submitted to it under another Article than that quoted by an applicant (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998- I). It will therefore examine the complaint under Article 8 of the Convention (see Pretty v. the United Kingdom, no. 2346/02, § § 61 and 63, ECHR 2002- III, and Codarcea, cited above, § 101), which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 29. The Government raised a plea of non-exhaustion of domestic remedies, arguing that the applicant should have lodged an action against the doctor and the hospital under the general tort law (Articles 998-999 and 1000 § 3 of the Civil Code). They developed the same arguments as those they had raised in Stihi-Boos v. Romania ( (dec.), no. 7823/06, §§ 46-48, 11 October 2011). 30. They also made reference to several domestic court rulings whereby doctors ’ liability had been engaged under Law no. 95/2006 for medical negligence and to other court decisions rendering hospitals liable for the damage suffered by victims of medical negligence. 31. The applicant contested the Government ’ s position. She argued that Dr P.C. ’ s actions had constituted serious offences and therefore submitted that a criminal prosecution had been the best suited remedy. She pointed out that her complaint concerned defects in the investigations carried out by the domestic authorities and that engaging in another set of proceedings (namely a tort action) could not possibly have remedied those flaws. She also noted that the courts had concluded that the procedure had been lawful and had thus held her claims to be unfounded. 32. Lastly, the applicant noted that the domestic case-law presented by the Government showed that doctors had been criminally convicted for less serious offenses than those done to her and that victims had been awarded significant amounts in damages. 33. The Court considers that the arguments put forward by the Government are closely linked to the substance of the complaint. It therefore joins their examination to the merits. 34. It also notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 35. The applicant reiterated that she had not been informed of the nature and possible consequences of the procedure and pointed out that the fact that she had been a nurse in the same hospital did not dispense the doctor from his duty to provide her with sufficient information to allow her to make an informed decision about the proposed treatment. 36. She also reiterated that the procedure had not been urgent. Therefore, there had been no excuse for going ahead with the procedure without proper preparation, notably pre-operative checks. Furthermore, the doctor should have been able to assess the risks of her having the procedure in the Town Hospital, which had turned out to be an inadequate venue for handling the complications that had ensued. He should have sent her straight to the County Hospital. Lastly, she argued that the doctor had not adequately prepared for dealing with the complications, notably by failing to have an ambulance ready beforehand or to send a doctor and not only a nurse with her to the County Hospital. 37. The Government argued that the applicant had been fully aware of the nature of the procedure that was to be performed on her. She had both known the foetus ’ s condition and had had extensive medical knowledge, as she herself had been a nurse. They also pointed out that her hospitalisation had been voluntary. They averred that the applicant had submitted her complaint and objections to the authorities, namely the College of Doctors and the Prosecutor ’ s Office, and had fully participated in the ensuing proceedings. The decisions taken had been based, among other things, on medical expert reports and had been fully reasoned. 38. They reiterated that the authorities had not found any medical negligence in the case. The complications that had occurred had been very rare and unforeseeable. The doctor ’ s sole failing had been that he had not obtained the applicant ’ s written consent to the procedure. However, that lapse could not lead to the inference that the applicant had not been informed of the nature of the procedure or the risks involved or had not given her consent. 39. The Government considered that the present case differed significantly from Eugenia Lazăr, cited above. There had not been any communication problems between the investigators and the Forensic Institute. In addition, the medical expert reports had not been the sole evidence in the case. 40. For the reasons above, they concluded that the State ’ s responsibility could not be engaged under Article 8 of the Convention. 2. The Court ’ s appreciation ( a) General principles 41. The Court makes reference to the general principles it has established concerning the State ’ s responsibility for medical negligence under Articles 2 and 8 of the Convention. In particular, it reiterates that the Contracting States are under an obligation to introduce regulations compelling both public and private hospitals to adopt appropriate measures for the protection of their patients ’ lives (see Trocellier v. France (dec.), no. 75725/01, § 4, ECHR 2006- XIV ). 42. Moreover, the Court has underlined that it is important for individuals facing risks to their health to have access to information enabling them to assess those risks. It has considered it reasonable to infer from this that the Contracting States are bound, by virtue of this obligation, to adopt the necessary regulatory measures to ensure that doctors consider the foreseeable consequences of a planned medical procedure on their patients ’ physical integrity and to inform patients of these consequences beforehand, in such a way that the latter are able to give informed consent. In particular, as a corollary to this, if a foreseeable risk of this nature materialises without the patient having been duly informed in advance by doctors, the State Party concerned may be directly liable under Article 8 for this lack of information ( see Trocellier, cited above, § 4; Vo v. France [GC], no. 53924/00, § 89, ECHR 2004 ‑ VIII; Codarcea, cited above, § 105; and Pretty, cited above, § 63). 43. Lastly, the Court reiterates that in the specific sphere of medical negligence, if the legal system affords victims full access to civil proceedings or to disciplinary proceedings which may lead to liability for medical negligence being established and a corresponding award of compensation, this could in principle be sufficient to discharge the State ’ s positive obligation to provide an effective judicial system (see, mutatis mutandis, Calvelli and Ciglio v. Italy [GC], no. 32967/96, §§ 48-51, ECHR 2002-I, and Codarcea, cited above, § 102). ( b) Application of those principles to the present case 44. Turning to the facts of the case under examination, the Court notes that following a medical procedure performed by Dr P.C. in a state hospital, the applicant ’ s life was endangered and she was left permanently unable to bear children. 45. There has accordingly been an interference with the applicant ’ s right to respect for her private life. 46. The applicant did not argue that her loss had been caused intentionally by the doctor. Her complaint refers rather to the doctor ’ s negligence in performing the medical procedure and an inadequate response from the authorities. It remains, therefore, to be assessed whether the State has complied with its positive obligations set out in Article 8 of the Convention. 47. The Court first notes that all the medical expert reports in the case concurred that the doctor had failed, prior to the procedure, to either obtain the applicant ’ s informed written consent or to perform the pre-operative checks required. 48. The Court attaches weight to the existence of prior consent in the context of a patient ’ s right to respect for his or her physical integrity (see Codarcea, cited above, § 104). Any disregard by the medical personnel of a patient ’ s right to be duly informed can trigger the State ’ s responsibility in the matter (idem, § 105). 49. It also notes that domestic legislation expressly provides for the patient ’ s right to receive information sufficient to allow that patient to give, and the doctor ’ s corollary obligation to obtain, informed consent prior to a procedure involving any risk. 50. The Court cannot find a reasonable explanation for why that consent was not obtained in the present case. It cannot accept the Government ’ s position, according to which the fact that the applicant was a trained nurse dispensed the doctor from following established procedures and informing her of the risks involved in the procedure. 51. Furthermore, it transpires from the facts that, while the need to abort the foetus was undisputed, there was no extreme urgency in performing the procedure. Therefore, the doctor was not under time constraints that could justify him not conducting preliminary tests on his patient or not properly assessing whether the town hospital was adequately equipped to deal with the possible complications. The expert opinion prepared for the College of Doctors lends force to this argument. 52. The Court notes that the medical expert reports drafted during the criminal prosecution did not deal with the issue of urgency, despite the applicant ’ s requests and objections to this end. The questions asked by the applicant were relevant and in answering them the forensic authorities could have helped shed light on the unfortunate events that led to the applicant ’ s loss. 53. It remains to be ascertained whether the remedies at the applicant ’ s disposal were sufficient to provide her redress for the loss suffered as a result of the medical procedure (see paragraph 43 above). 54. The Court notes that in the instant case the applicant attached a civil claim to her criminal complaint against the doctor (see paragraph 15 above, as well as Perez v. France [GC], no. 47287/99, § 70, ECHR 2004 ‑ I ). In theory, at least, at the end of these proceedings, the applicant could have obtained an assessment of and compensation for the damage suffered. This remedy was therefore appropriate in the present case and the Court will thus examine the manner in which the investigation was carried out. 55. The Court observes that the medical reports established that despite the obvious mistakes made in the handling of the case, there was no medical negligence on behalf of the doctor (see paragraphs 14, 16, 18 and 20 above and a contrario, Stihi Boos, cited above, § 60). Looking at the documents before it, the Court notes, however, that the prosecutor did not weigh the conflicting factual issues presented by the case. 56. In particular, the prosecutor based his decision on the forensic reports issued at his request. He did not take into account the medical expert report prepared for the College of Doctors, although it was exhaustive and pointed to procedural shortcomings. He also failed to take the opinion of the Forensics Institute – the superior forensic authority – on that report into account. He thus only examined the two reports issued by the forensic laboratories. He also failed to provide answers to the questions raised by the applicant. The Court reiterates its finding that those questions were relevant and significant for the clarification of the events (see paragraph 52 above). 57. The Court is not in a position to contradict the domestic courts ’ findings concerning the lack of criminal responsibility of the doctor in the case. However, given the serious consequences of the procedure, and the fact that the applicant had to go through it without being properly informed of the risks involved, the Court finds it unacceptable that an operation could be performed without respect of the rules and the safeguards created by the domestic system itself. 58. The Court will further examine whether, as the Government claimed, a civil action against the doctor and the hospital could have constituted an effective remedy. 59. The Court reiterates that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Stihi Boos, cited above, § 64). 60. At the outset, the Court notes that although the experts acknowledged the existence of procedural failings on the part of Dr P.C., they excluded the existence of medical negligence ( see paragraphs 14, 16, 18, 20 and 55 above). In contrast, in Stihi Boos the medical expert reports formed the opinion that there had been no medical negligence because the decisions taken by the medical personnel had corresponded to the diagnosis and the general state of the victim ’ s health (see Stihi Boos, cited above, §§ 21 and 29-31). 61. It is to be noted that, when the facts of the present case occurred, the system did not allow for a new forensic report to be commissioned, as the Forensics Institute had already given its opinion on the case (see Eugenia Lazăr, cited above, § 90; and Baldovin v. Romania, no. 11385/05, § 22, 7 June 2011 ). Therefore, it would have been impossible for the applicant to raise the issue of medical negligence again in a new set of proceedings, despite the significance that its elucidation might have had for the outcome of those proceedings. This casts doubt on whether a civil claim by the applicant against the doctor would have been an effective remedy, particularly given that an expert report would have constituted the essential evidence to support her case in the civil courts. 62. The Court has already identified shortcomings in the Romanian system in respect of the limitation of doctors ’ liability to cases of established medical negligence (see paragraph 26 above and Eugenia Lazăr, cited above, § 90 ). Bearing in mind the consistency with which the expert reports excluded the existence of medical negligence in this case, the Court finds it even more difficult to see how this remedy could be effective in practice in the applicant ’ s particular situation. 63. The Court will also assess the ability for the applicant to seek compensation directly from the hospital. It notes at the outset that she did not point to a lack of coordination between the two hospitals involved. She restricted her complaint to the decisions taken by one doctor. 64. The Court notes that the domestic case-law in the matter is developing, but that the domestic courts have not consistently established the liability of hospitals in cases of medical negligence (see Codarcea, cited above, § § 71 and 108; and Stihi Boos, cited above, § 64). 65. In the case under examination, it appears that the hospitals immediately took charge of the applicant ’ s case. Their swift intervention made it possible to limit the negative consequences of the initial procedure and to save her life ( see, a contrario, Csiki v. Romania, no. 11273/05, § 78, 5 July 2011, and Floarea Pop v. Romania, no. 63101/00, § § 22, 24 and 37, 6 April 2010 ). The lack of any fault in the hospital ’ s handling of the matter, coupled with the developing domestic case ‑ law concerning hospitals ’ liability for medical acts ( see paragraph 64 above ), renders an action for compensation against the hospital too weak a remedy to be deemed effective. 66. The Court also notes the changes brought about in 2006 by Law no. 95/2006 which, in principle, would make it easier nowadays for victims of medical negligence to seek compensation in the absence of a finding of guilt (see Eugenia Lazăr, § 54, and Baldovin, § 27, judgments cited above ). However, the Government did not argue that the applicant could still avail herself of these new provisions. 67. Lastly, the Court finds it relevant in the present case that the applicant did not remain passive, nor was her sole goal to have the doctor criminally punished (see, a contrario, Stihi Boos, cited above, §§ 51 and 65). She lodged a request with the College of Doctors and pursued a civil claim within the criminal proceedings. However, neither of these authorities offered her redress. In these circumstances, it would be disproportionate to require her to lodge yet another action with the civil courts. 68. The foregoing considerations are sufficient to enable the Court to conclude that by not involving the applicant in the choice of medical treatment and by not informing her properly of the risks involved in the medical procedure, the applicant suffered an infringement of her right to private life. Furthermore, the system in place as at the date of the facts of the present case made it impossible for the applicant to obtain redress for the infringement of her right to respect for her private life. The respondent State has therefore failed to comply with its positive obligations under Article 8 of the Convention. For these reasons, the Court will dismiss the Government ’ s objection and conclude that there has been a violation of Article 8 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 69. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 70. The applicant claimed 75,000 euros (EUR) in respect of non - pecuniary damage. 71. The Government argued that there was no causal link between the alleged violation and the damage claimed and that in any case the amount sought in that respect was excessive. They considered that the finding of a violation would constitute sufficient just satisfaction in the case. 72. The Court reiterates having found a violation of the applicant ’ s right to privacy. It considers that the applicant incurred non-pecuniary damage which cannot be compensated by the mere finding of a violation. It therefore awards the applicant EUR 6,000 in respect of non-pecuniary damage. B. Costs and expenses 73. The applicant did not make a claim under this head. C. Default interest 74. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention. It found in particular that by not involving the applicant in the choice of medical treatment and by not informing her properly of the risks involved in the medical procedure, the applicant had suffered an infringement of her right to private life. |
1,082 | Dismissal | II. RELEVANT DOMESTIC LAW AND PRACTICE 64. The Law on the Evaluation of the USSR State Security Committee (NKVD, NKGB, MGB, KGB) and the Present Activities of Former Permanent Employees of the Organisation ( Įstatymas dėl SSRS valstybės saugumo komiteto (NKVD, NKGB, MGB, KGB) vertinimo ir šios organizacijos kadrinių darbuotojų dabartinės veiklos – (“the KGB Act”)) was enacted on 16 July 1998 and came into force on 1 January 1999. Article 2 of the KGB Act provided that former KGB employees would be banned from working in certain areas of the private sector for ten years from the date of entry into force of the Act. Thus, they were not allowed to work as lawyers ( advokatai ) or notaries, as employees of banks and other credit institutions, on strategic economic projects, in security companies (structures), in other companies (structures) providing detective services, in communications systems, or in the education system as teachers, educators or heads of institutions, nor could they perform a job requiring the carrying of a weapon (for the text of the KGB Act and the domestic law related to it, see the judgment in the case of Sidabras and Džiautas, cited above, §§ 24-29). 65. Article 15 § 1 of the Law on Administrative Court Proceedings stipulates that administrative courts decide cases where the State or a public institution is one of the parties. Article 153 § 2 (1) of that Law allows domestic proceedings to be reopened in an administrative case if the European Court of Human Rights has found that the decision of the national court was contrary to the Convention or its Protocols. Article 366 § 1 (1) of the Code of Civil Procedure provides a similar rule in civil cases. Article 4 of the Code provides that, when applying the law, the lower courts take into consideration the Supreme Court ’ s case-law as to how interpret one or another legal issue. 66. Article 26 § 1 (14) of the Law on the Employment Contract provides that an employment contract is to be terminated if it does not comply with the requirements of the law. Under Article 42 §§ 1 and 2, an employee who disagrees with his or her dismissal may appeal to a court. If the court finds that the employee has been unlawfully dismissed, the court reinstates the employee to his job and the employer must pay the employee compensation for lost earnings. The third paragraph of that article provides that when an unlawfully dismissed employee declares that, if reinstated, working conditions would be untenable, the court may, at that employee ’ s request, refrain from ordering reinstatement and award pecuniary compensation instead. 67. Article 297 §§ 3 and 4 of the Labour Code, regulating disputes over employment contracts, provides that if an employee has been dismissed from his or her job without proper legal grounds, the court will reinstate him or her and order the payment of his or her salary from the time of the unlawful dismissal until the execution of the court ’ s decision. However, should the court establish that the employee may not be reinstated for economic, technological, organisational or similar reasons, or because he may find himself in unfavourable conditions, the court will declare the dismissal unlawful and award severance pay. This payment will depend on the employee ’ s length of service as well as the average salary for the period from dismissal until the court ’ s decision comes into force. 68. Article 418 of the Code of Civil Procedure stipulates that if an employee has made one of the alternative demands provided for by law, the court of first instance, after establishing that there are no grounds for granting the demand made, may on its own initiative, if there is a reason for doing so, apply an alternative measure to protect the employee ’ s interests. 69. Article 187 6 of the Code on Administrative Law Offences stipulates that an employer who has failed to comply with the requirement of the KGB Act to dismiss a “former KGB permanent employee” is liable to a fine of between LTL 3,000 and LTL 5,000. III. RELEVANT INTERNATIONAL MATERIALS 70. The Rules adopted by the Committee of Ministers on 10 January 2001 at the 736 th meeting of the Ministers ’ Deputies for the application of Article 46, paragraph 2, of the European Convention on Human Rights, insofar as relevant, read as follows: Rule 3 “Information to the Committee of Ministers on the measures taken in order to abide by the judgment a. When, in a judgment transmitted to the Committee of Ministers in accordance with Article 46, paragraph 2, of the Convention, the Court has decided that there has been a violation of the Convention or its protocols and/or has awarded just satisfaction to the injured party under Article 41 of the Convention, the Committee shall invite the State concerned to inform it of the measures which the State has taken in consequence of the judgment, having regard to its obligation to abide by it under Article 46, paragraph 1, of the Convention. b. When supervising the execution of a judgment by the respondent State, pursuant to Article 46, paragraph 2, of the Convention, the Committee of Ministers shall examine whether: - any just satisfaction awarded by the Court has been paid, including as the case may be default interest; and, if required, and taking into account the discretion of the State concerned to choose the means necessary to comply with the judgment, whether - individual measures have been taken to ensure that the violation has ceased and that the injured party is put, as far as possible, in the same situation as that party enjoyed prior to the violation of the Convention; - general measures have been adopted, preventing new violations similar to that or those found or putting an end to continuing violations.” 71. As examples of individual measures, the Rules name the striking out of an unjustified criminal conviction from the criminal records, the granting of a residence permit or the reopening of impugned domestic proceedings (on this last point see also Recommendation No. Rec(2000)2 of the Committee of Ministers to member States on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights, adopted on 19 January 2000 at the 694 th meeting of the Ministers ’ Deputies). As examples of general measures, the Rules mention legislative or regulatory amendments, changes of case-law or administrative practice, or publication of the Court ’ s judgment in the language of the respondent State and its dissemination to the authorities concerned. 72. Recommendation Rec(2004)6 of the Committee of Ministers to member States on the improvement of domestic remedies, adopted by the Committee of Ministers on 12 May 2004, insofar as relevant, reads as follows: The Convention as an integral part of the domestic legal order “7. A primary requirement for an effective remedy to exist is that the Convention rights be secured within the national legal system. In this context, it is a welcome development that the Convention has now become an integral part of the domestic legal orders of all states parties. This development has improved the availability of effective remedies. It is further assisted by the fact that courts and executive authorities increasingly respect the case-law of the Court in the application of domestic law, and are conscious of their obligation to abide by judgments of the Court in cases directly concerning their state (see Article 46 of the Convention). This tendency has been reinforced by the improvement, in accordance with Recommendation Rec(2000)2, of the possibilities of having competent domestic authorities re-examine or reopen certain proceedings which have been the basis of violations established by the Court. 8. The improvement of domestic remedies also requires that additional action be taken so that, when applying national law, national authorities may take into account the requirements of the Convention and particularly those resulting from judgments of the Court concerning their state. This notably means improving the publication and dissemination of the Court ’ s case-law (where necessary by translating it into the national language(s) of the state concerned) and the training, with regard to these requirements, of judges and other state officials. Thus, the present recommendation is also closely linked to the two other recommendations adopted by the Committee of Ministers in these areas. ” 73. Article 26 of, and the third paragraph of the Preamble to, the Vienna Convention of 23 May 1969 on the Law of Treaties, ratified by Lithuania on 15 January 1992, sets forth the principle of pacta sunt servanda : “ Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” THE LAW I. ALLEGED VIOLATION OF ARTICLES 8 AND 14, TOGETHER WITH ARTICLE 46 OF THE CONVENTION 74. Relying on Article 46 of the Convention, the applicants complained that Lithuania ’ s failure to repeal the legislative provision banning former KGB employees from working in certain spheres of the private sector, notwithstanding the Court ’ s judgments of 27 July 2004 and 7 April 2005, was not consistent with the Court ’ s findings of a violation of Article 14 of the Convention, taken in conjunction with Article 8. The applicants also referred to Article 13 of the Convention; however, the Court considers that that complaint is absorbed by the principal complaint. Articles 8, 14 and 46 of the Convention read as follows: Article 8 “1. Everyone has the right to respect for his private ... life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ... other status.” Article 46 “1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution. ... 4. If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two thirds of the representatives entitled to sit on the Committee, refer to the Court the question whether that Party has failed to fulfil its obligation under paragraph 1. 5. If the Court finds a violation of paragraph 1, it shall refer the case to the Committee of Ministers for consideration of the measures to be taken. If the Court finds no violation of paragraph 1, it shall refer the case to the Committee of Ministers, which shall close its examination of the case.” A. Admissibility 1. The parties ’ submissions (a) The Government 75. In the Government ’ s submission, the present cases were fundamentally different from that of Mehemi v. France (no. 2) (no. 53470/99, § 43 in fine, ECHR 2003 ‑ IV), in that they presented no new issue that had not already been settled by the Court in the judgments of Sidabras and Džiautas and Rainys and Gasparavičius (both cited above). The Government thus strongly believed that the cases at hand concerned purely issues of execution of the Court ’ s judgments for the purposes of Article 46 of the Convention, and therefore should be declared incompatible ratione materiae within the meaning of Article 35 § 3. 76. The Government observed that individual as well as general measures concerning the execution of the above judgments had been implemented. In terms of individual measures, the Government had paid in due time the sums that the Court had awarded the applicants by way of just satisfaction. In terms of general measures, a number of specific laws had been amended, lifting the employment restrictions previously applicable in the private sector. Moreover, the Court ’ s judgments were directly applicable in Lithuania and the restrictions concerning employment possibilities in the private sector were thus considered unlawful. Additionally, as of 1 January 2009 the restrictions provided for in the KGB Act regarding the employment of former KGB agents were no longer in force, including in the public sector. The attention of the Committee of Ministers had also been drawn to the fact that both judgments of the Court had been translated, published and disseminated. 77. Taking the above into account, the Government were of the view that the Court had no jurisdiction over the Committee of Ministers ’ supervision of the execution of its judgments where no new issue had occurred in the same case after a judgment (the Government referred to Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, ECHR 2009). The Government asserted that the applicants in the present cases had referred to the same factual circumstances and legal grounds, on account of which the Court had found a violation in its judgments of 27 July 2004 and 7 April 2005 and had awarded redress. The Government thus considered that within the context of the present applications, only the refusal to employ the applicants in those spheres of the private sector from which they were formally banned by the KGB Act and the subsequent failure by the domestic courts to defend their rights could be considered as a “new issue”. In the absence of such information substantiated by relevant evidence, the Court lacked jurisdiction over the matters, which were the subject of communication between the Lithuanian Government and the Committee of Ministers. 78. It was also the Government ’ s opinion that the judgments should be considered as duly executed, even without waiting for a formal legislative measure, by virtue of the direct applicability and supremacy of the Convention and the Court ’ s judgments over conflicting provisions of national law. In respect of the first and second applicants, this view had been expressis verbis confirmed by the Supreme Administrative Court in the decisions of 14 and 18 April 2008, in which it had held that the refusal of a job on the same discriminatory grounds as those condemned by the Court ’ s judgment of 27 July 2004 would mean a new violation of the Convention and thus be unlawful. The necessity to implement the Convention provisions effectively and to execute the Court ’ s judgments had also been confirmed by the Supreme Court when examining the third applicant ’ s case. 79. The Government thus maintained that, having regard to the translation, publication and dissemination of the Court ’ s judgments, the direct applicability and supremacy of the Convention and the Court ’ s case-law constituted a sufficient general measure with a view to preventing the occurrence of identical violations in the future. Steps to amend the KGB Act had been taken “without unjustified delay”. However, since those were legislative measures, they took more time than measures to be taken by other competent State authorities. (b) The applicants 80. The first and second applicants did not dispute the fact that Lithuania had paid the amounts awarded to them by the Court in respect of non-pecuniary damage. They were of the view, however, that pecuniary compensation constituted just one of the measures involved in executing the Court ’ s judgment and that the finding of a violation of Articles 8 and 14 called for restitutio in integrum. 81. Once the Court ’ s judgment in their case had become final, the Republic of Lithuania had been under an obligation to take all necessary measures, including making legislative amendments, to remove from the domestic law all the provisions that were in conflict with the Convention. To this end the two applicants noted that even though the Court had adopted the judgment on 27 July 2004, the KGB Act ’ s restrictions had remained in force until the very day of their expiry – 1 January 2009. They submitted that, when the State had good will, it was able to pass new laws or amend old ones within a few weeks. However, this was not so in their case. Moreover, the Government ’ s suggestion that their complaints were inadmissible ratione materiae because the execution procedure had been continuing ever since the Court ’ s judgment of 27 July 2004, was in contradiction with the principle ex iniuria ius non oritur, because it meant that the State could not rectify the violation found for a number of years and still be considered as acting lawfully or at least risk nothing. 82. As to the execution of the Court ’ s judgments through judicial practice, the first applicant underlined that, in accordance with Article 15 § 1 of the Law on Administrative Court Proceedings, the administrative courts decided cases in which one of the parties was the State or a public institution. For that reason, the first applicant lodged complaints with the administrative courts in 2000, asking to be reinstated in the civil service. Similarly, in 2006, after the Court ’ s judgment in his favour, he had again sued the State for damages. In contrast, should a private sector employer refuse to hire a person, he or she would have to address the courts of general jurisdiction, beginning with a district court and, if need be, going up to the Supreme Court as the court of cassation. However, the Supreme Court ’ s position, as regards the rights of former KGB employees under Articles 8 and 14 of the Convention, after the Court ’ s judgment of 27 July 2004, was plain: while the KGB Act was still in force, the question of reinstating the third applicant to his job could not be resolved favourably (see paragraph 58 above). The first applicant had no knowledge of any Supreme Court case-law to the opposite effect. That being so, and taking into account that the lower courts of general jurisdiction were bound to follow the Supreme Court ’ s case-law and guidelines, the first applicant ’ s right to respect for his private life would not be defended in court. 83. The third applicant submitted that the KGB Act had not been amended for political reasons. 2. The Court ’ s assessment 84. In the case of Verein gegen Tierfabriken Schweiz (VgT) (no. 2) (cited above), the Grand Chamber summed up as follows the criteria to be taken into account in cases of this kind: “61. The Court reiterates that findings of a violation in its judgments are essentially declaratory (see Marckx v. Belgium, 13 June 1979, § 58, Series A no. 31; Lyons and Others v. the United Kingdom (dec.), no. 15227/03, ECHR 2003 ‑ IX; and Krčmář and Others v. the Czech Republic (dec.), no. 69190/01, 30 March 2004) and that, by Article 46 of the Convention, the High Contracting Parties undertook to abide by the final judgments of the Court in any case to which they were parties, execution being supervised by the Committee of Ministers (see, mutatis mutandis, Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 34, Series A no. 330-B). 62. The Committee of Ministers ’ role in this sphere does not mean, however, that measures taken by a respondent State to remedy a violation found by the Court cannot raise a new issue undecided by the judgment (see Mehemi v. France (no. 2), no. 53470/99, § 43, ECHR 2003-IV, with references to Pailot v. France, 22 April 1998, § 57, Reports 1998-II; Leterme v. France, 29 April 1998, Reports 1998-III; and Rando v. Italy, no. 38498/97, § 17, 15 February 2000) and, as such, form the subject of a new application that may be dealt with by the Court. In other words, the Court may entertain a complaint that a retrial at domestic level by way of implementation of one of its judgments gave rise to a new breach of the Convention (see Lyons and Others, cited above, and also Hertel v. Switzerland (dec.), no. 3440/99, ECHR 2002 ‑ I). 63. Reference should be made in this context to the criteria established in the case-law concerning Article 35 § 2 (b), by which an application is to be declared inadmissible if it ‘ is substantially the same as a matter that has already been examined by the Court ... and contains no relevant new information ’. The Court must therefore ascertain whether the two applications brought before it by the applicant association relate essentially to the same person, the same facts and the same complaints (see, mutatis mutandis, Pauger v. Austria, no. 24872/94, Commission decision of 9 January 1995, DR 80-A, and Folgerø and Others v. Norway (dec.), no. 15472/02, 14 February 2006).” 85. In the present case the Government have argued that the applicants ’ complaint about the continuous discrimination against them on the basis of the non-amended KGB Act related mainly to the issues already examined by the Court and was thus a matter for the Committee of Ministers under Article 46 § 2 of the Convention. The Court does not share that view and observes in this connection that under paragraph 2 of Article 32, “[i]n the event of dispute as to whether the Court has jurisdiction, the Court shall decide”. As it has previously found, the powers assigned to the Committee of Ministers by Article 46 are not being encroached on where the Court has to deal with relevant new information in the context of a fresh application (see Verein gegen Tierfabriken Schweiz (VgT) (no. 2), cited above, §§ 66 and 67; also see, most recently, Bochan v. Ukraine (no. 2) [GC], no. 22251/08, §§ 33 and 34, 5 February 2015 ). 86. In order to ascertain whether these are fresh applications which can be distinguished in essence, within the meaning of the above-cited case-law, from the applicants ’ initial applications to the Court, it is appropriate to refer to the proceedings that followed the judgments of 27 July 2004 and 7 April 2005. Further to those judgments, the first and second applicants lodged applications with the administrative courts claiming damages for arbitrary discrimination. In the wake of those administrative court proceedings, the Supreme Administrative Court unequivocally acknowledged that the Convention and the Court ’ s case-law could be directly relied upon when defending human rights at the domestic level, and that in the hierarchy of legal norms the Convention took priority over national laws. 87. The third applicant also initiated new court proceedings, seeking reinstatement in his previous job at the private telecommunications company, Omnitel. Like the Supreme Administrative Court, the Supreme Court also recognised that the third applicant ’ s dismissal had been unlawful under the Convention. That being so, it unmistakably observed that because Article 2 of the KGB Act was still effective, the question of the third applicant ’ s reinstatement could not be resolved favourably (see paragraph 58 above). This, to the Court, constitutes a relevant new element, which the first applicant saw as manifestly contradicting the Court ’ s earlier judgments in the three applicants ’ cases. 88. The Court therefore considers that, in the light of the continuous existence of the KGB Act, the elements referred to above and the contradictory conclusions of the highest courts of administrative and general jurisdiction, there was, within the meaning of Article 35 (2) (b) of the Convention, “relevant new information” concerning the rights of former KGB employees, such as the three applicants, under the Convention capable of giving rise to a fresh violation of Article 14, taken in conjunction with Article 8. 89. It further observes that although the Committee of Ministers has begun its monitoring of the execution of the Court ’ s judgments in the applicants ’ cases, a final resolution has not yet been adopted in these cases (see Emre v. Switzerland (no. 2), no. 5056/10, § 42, 11 October 2011 ). 90. Accordingly, the Court finds that the three applicants ’ complaints are compatible ratione materiae with the provisions of the Convention and its Protocols. 91. The Court further considers that the complaints by the three applicants are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and are also not inadmissible on any other grounds. The complaints must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicants 92. The first applicant admitted that he had registered with the Šiauliai Employment Office, which had taken a number of steps to help him find a job. Even so, he had only been offered jobs, for example those of manager, which were not barred to him pursuant to the KGB Act. In other words, he was not offered the private sector jobs that had been barred to him before the Court ’ s judgment, because the prohibition on working in the sectors listed in Article 2 of the KGB Act remained effective. Accordingly, the Lithuanian institutions and in particular the Šiauliai Employment Office had not sought to implement the first applicant ’ s rights under Articles 8 and 14 of the Convention. Nor had their actions assisted in correcting the violation found by the Court. Lastly, he noted that he was a graduate of the Lithuanian Sports University and a qualified sports instructor, allowing him to work as a trainer in schools. However, such jobs at educational establishments were not and could not be offered to him until the very last day whilst the KGB Act-related restrictions remained in force. 93. The second applicant admitted that he had been included in the list of trainee lawyers as of 29 March 2006. However, this was only one of the private sector professions in which he could theoretically have worked in accordance with his education and qualifications, but which remained barred to him because the KGB Act had not been amended. 94. The third applicant submitted that the Lithuanian Supreme Court ’ s refusal to reinstate him in his job at Omnitel illustrated perfectly well that the restrictions contained in the KGB Act had applied to him even after the Court ’ s judgment in his favour, and thus had resulted in further discrimination. He disputed the Government ’ s argument that the provisions of the Lithuanian employment legislation were unfavourable to his reinstatement. Whilst acknowledging that States had the freedom to choose how to execute the Court ’ s judgments, the third applicant deemed it important to point out that that freedom did not allow them to suspend the application of the Convention while waiting for the relevant reform to be completed (he referred to Vermeire, cited above, § 26). Even though there were no objective reasons not to amend the KGB Act, the amendment had not been passed because of a lack of political will. The third applicant thus contended that his case was similar to another politically sensitive case, L. v. Lithuania (no. 27527/03, § 74, ECHR 2007 ‑ IV), in that the State had chosen to pay compensation instead of amending the legislation that was in breach of the Convention. The non-execution of the Court ’ s judgments in Lithuania had thus become systematic. (b) The Government 95. Concerning the personal situation of the first applicant, the Government maintained that there was no evidence that the State ’ s failure to amend the KGB Act in due time had continuously violated his rights. The Supreme Administrative Court has found that the first applicant had not provided any specific information explaining who had refused him employment on account of the restrictions still formally contained in the KGB Act, and when. Nor had he submitted any evidence to the effect that he would fail to receive particular offers because of his KGB past. Above all, the first applicant had not challenged before the domestic courts any alleged refusal, if there were any, arguing that he had been prohibited from applying for a specific job. The Government also considered that the private companies that had refused the first applicant a job did not fall within those areas of the private sector mentioned in Article 2 of the KGB Act. On this last point, the Government also suggested that the first applicant had merely speculated on the basis of the non-amendment of the KGB Act. In reality, he himself had often refused various job offers. Lastly, he had terminated his employment search with the Šiauliai Employment Office several days before the formal restrictions ceased to be valid. Thus it could be presumed that he had sought to keep his unemployed status instead of genuinely searching for a job. 96. With regard to the individual situation of the second applicant, he had not provided any evidence of having been discriminated against because of his KGB past. That fact had been confirmed by the Supreme Administrative Court. Furthermore, according to the Government, as of 29 March 2006 the second applicant had been included in the list of trainee lawyers, which was a precondition to becoming a lawyer, and faced no restrictions from the Lithuanian Bar Association. The Government maintained that on 14 May 2009 the second applicant had submitted the required two-year traineeship report, which had been confirmed by the Bar Association. He had then been put on the list of persons who were going to take the Bar exam. In addition, according to the information in the Government ’ s possession, during the relevant period he was receiving income from several private companies. 97. The Government also considered that the Supreme Court ’ s refusal to reinstate the third applicant in his earlier job at the telecommunications company, Omnitel, after the Court ’ s judgment did not amount to a new violation of his rights. A conclusion to the contrary would have the effect of depriving the respondent State of the margin of appreciation to which it was entitled when executing the Court ’ s judgments as it would constitute a straightforward requirement to take particular measures, which did not follow from the Court ’ s judgment in Rainys and Gasparavičius (cited above). The reopening of the domestic proceedings thus stood as a means of properly executing the Court ’ s judgment. 98. The Government also found it important to note that when deciding the third applicant ’ s case, the Supreme Court had emphasised the necessity of implementing the Convention provisions effectively, whilst noting that Lithuania had some discretion as regards the means of securing their proper implementation. For the Supreme Court, reopening the civil proceedings, in accordance with Article 366 § 1 of the Civil Code, was one such means. Above all, when modifying the reasoning of the lower courts, the Supreme Court had directly relied on the Court ’ s judgment of 7 April 2005 and acknowledged that the third applicant ’ s dismissal because of his status as a former KGB employee had been unlawful under the Convention (see paragraph 58 above). 99. For the Government, that acknowledgement of the unlawfulness of the dismissal directly relying on the Court ’ s judgment, together with the payment of just satisfaction by the State, constituted proper implementation of the Court ’ s judgment as regards the individual situation of the third applicant. The Government also pointed out that the Court ’ s judgment in no way implied an obligation to reinstate the third applicant in his previous job in the private telecommunications company. On the contrary, the Court had awarded just satisfaction to the third applicant not only for unlawful dismissal, but also in respect of future pecuniary loss. Furthermore, under the domestic law there were two alternative means to remedy unlawful dismissal. If, following unlawful dismissal, reinstatement was not possible, Article 297 of the Labour Code provided for compensation. Both alternatives were considered to be equal and could be availed of when defending the employment rights of an unlawfully dismissed employee. To that end, the courts examining the case, when choosing between the alternatives, were not bound by the demands of the parties to the case. Under Article 418 of the Code of the Civil Procedure, the courts had the power to choose, on their own initiative, to apply the alternative means to defend the rights of the employee and to pay compensation instead (see paragraph 68 above). The Supreme Court even addressed the issue of compensation for the Convention violation, but given that that compensation had already been paid by the State following the Court ’ s judgment, there was no basis for making a second award on the same grounds. 100. Lastly, the Government submitted that, as established by the court of first instance, at the time of the second set of proceedings the third applicant no longer possessed the qualifications necessary for the post of lawyer (see paragraph 49 above). 2. The Court ’ s assessment (a) As to the three applicants ’ complaint under Article 46 of the Convention 101. The Court recalls that the three applicants claimed that the State had not respected their rights, even after the Court had previously ruled in their favour, and had thus also violated Article 46 of the Convention. 102. As to the three applicants ’ reference to Article 46 of the Convention, the Court observes that in its previous judgments of Sidabras and Džiautas and Rainys and Gasparavičius (cited above), the Court did not provide for any individual or general measures to be taken by the Government in its operative part or its reasoning. Furthermore, the Court has previously held, both in the reasoning and in the operative part, that there had been a violation of a substantive provision of the Convention – in that instance Article 8 – taken together with Article 46, in a follow-up case after the Court had previously found a violation in the same applicant ’ s case (see Emre v. Switzerland (no. 2), cited above). As in the present case, the solution adopted in Emre (no. 2) was in line with the Court ’ s Grand Chamber judgment in Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) (cited above), in so far as the Court found that it had jurisdiction to examine whether a decision delivered by a domestic court following the finding of a violation in Strasbourg satisfied the requirements of Article 46. However, it went further, since in the Verein gegen Tierfabriken Schweiz (VgT) case, the Grand Chamber did not formally find a violation of Article 46. The findings of the Court in Emre (no. 2) were made within the context of new proceedings at domestic level which directly confronted the national courts with interpreting and applying the Court ’ s previous judgment in the applicant ’ s case. The Court thus considered that “the most natural execution of its judgment, and that which would best correspond to the principle of restitutio in integrum, would have been to annul purely and simply, with immediate effect, the exclusion measure ordered against the applicant” (see Emre (no. 2), cited above, § 75). 103. The Court notes that in its judgment in the case of The United Macedonian Organisation Ilinden – PIRIN and Others v. Bulgaria (no. 2) (nos. 41561/07 and 20972/08, § 66, 18 October 2011), the Court observed that it is very doubtful whether Article 46 § 1 may be regarded as conferring upon an applicant a right that can be asserted in proceedings originating in an individual application. Although the Court can examine whether measures taken by a respondent State in execution of one of its judgments are compatible with the substantive clauses of the Convention (see Verein gegen Tierfabriken Schweiz (VgT) (no. 2), cited above, §§ 61 ‑ 68 and 78 ‑ 98), it has consistently ruled that it does not have jurisdiction to verify, by reference to Article 46 § 1, whether a Contracting Party has complied with the obligations imposed on it by one of the Court ’ s judgments (see Akdivar and Others v. Turkey (Article 50), 1 April 1998, § 44, Reports of Judgments and Decisions 1998 ‑ II; Mehemi (no. 2), cited above, § 43; Haase and Others v. Germany (dec.), no. 34499/04, 7 February 2008; Wasserman v. Russia (no. 2), no. 21071/05, § 31 in fine, 10 April 2008; Burdov v. Russia (no. 2), no. 33509/04, § 121, ECHR 2009; and Kafkaris v. Cyprus (dec.), no. 9644/09, § 74, 21 June 2011). So did the former Commission (see Times Newspapers Ltd. and Others v. the United Kingdom, no. 10243/83, Commission decision of 6 March 1985, Decisions and Reports (DR) 41, p. 123; Ruiz ‑ Mateos and Others v. Spain, no. 24469/94, Commission decision of 2 December 1994, DR 79 ‑ B, p. 141; and Oberschlick v. Austria, nos. 19255/92 and 21655/93, Commission decision of 16 May 1995, DR 81 ‑ A, p. 5). The new paragraphs 4 and 5, added to Article 46 by Article 16 of Protocol No. 14, seem to confirm that as well. 104. Taking account of the facts of the present case, the Court considers the above approach adopted in the case of The United Macedonian Organisation Ilinden – Pirin and Others (no. 2) to be particularly relevant as regards the three applicants ’ complaint under Article 46. The Court observes that this case is materially different from Emre v. Switzerland (no. 2), (cited above), for two main reasons. Firstly, in contrast to the situation in Emre (no. 2), it is clear in the present case that the Government executed the previous judgments of the Court from 2005, as regards the three applicants, inasmuch as it concerns payment of compensation for pecuniary and non-pecuniary damage awarded by the Court under Article 41. Secondly, although the abrogation of the KGB Act of 1999 must have constituted the most appropriate general measure for the Government to remedy the domestic legal situation forming the basis of the Court ’ s judgments of 2004 and 2005, it is for the Committee of Ministers under Article 46 of the Convention to supervise the execution of such general measures. 105. In view of these considerations, and noting that in any event the issues that might arise under Article 46 § 1 of the Convention are closely intertwined with those arising under Article 14, taken in conjunction with Article 8 of the Convention, the Court will examine the complaint solely by reference to the latter provisions (see, mutatis mutandis, The United Macedonian Organisation Ilinden – Pirin and Others (no. 2), cited above, § 67 ). (b) The legal principle as established in the previous case 106. In paragraphs 36–38 of the judgment in the third applicant ’ s case of 2005 (see Rainys and Gasparavičius, cited above), the Court stated the following: “ 36. As to the justification of this distinction, the Government ’ s main line of argument was that the application of the Act was well balanced in view of the legitimate interest to protect national security of the State, the impugned employment restrictions being imposed on persons such as the applicants by reason of their lack of loyalty to the State. However, the Court emphasises that the State-imposed restrictions on a person ’ s opportunity to find employment with a private company for reasons of lack of loyalty to the State cannot be justified from the Convention perspective in the same manner as restrictions on access to their employment in the public service (see Sidabras and Džiautas, §§ 57-58). Moreover, the very belated nature of the Act, imposing the impugned employment restrictions on the applicants a decade after the Lithuanian independence had been re-established and the applicants ’ KGB employment had been terminated, counts strongly in favour of a finding that the application of the Act vis-à-vis the applicants amounted to a discriminatory measure (loc. cit., § 60). The respondent Government have thus failed to disprove that the applicants ’ inability to pursue their former professions as, respectively, a lawyer in a private telecommunications company and barrister, and their continuing inability to find private-sector employment on the basis of their “former KGB officer” status under the Act, constitutes a disproportionate and thus discriminatory measure, even having regard to the legitimacy of the aims sought after (see, mutatis mutandis, Sidabras and Džiautas, cited above, §§ 51-62). 37. Consequently, there has been a violation of Article 14 of the Convention, taken in conjunction with Article 8. 38. The Court considers that, since it has found a breach of Article 14 of the Convention taken in conjunction with Article 8, it is not necessary also to consider whether there has been a violation of Article 8 taken alone (ibid., § 63).” (c) Application of these principles to the instant case (i) As to the first and second applicants 107. The Court notes that, as can be derived from the above-cited judgment in the third applicant ’ s first case (see Rainys and Gasparavičius, cited above, § 36), it is at the outset for the applicants claiming the discriminatory application of the KGB Act to plausibly demonstrate that a discriminatory act has occurred, either in the form of dismissal from a job previously held or by them being prevented from taking up a job on the basis of a refusal by a prospective employer in the private sector. If applicants succeed in plausibly demonstrating direct consequences of the Act for them, it is then for the Government to “disprove that the applicants ’ inability to pursue their former professions ... and their continuing inability to find private-sector employment on the basis of their “former KGB officer” status under the Act, constitutes a disproportionate and thus discriminatory measure, even having regard to the legitimacy of the aims sought after” (see ibid, § 36). 108. On this basis, the Court will proceed to determine whether the first and the second applicants have plausibly demonstrated that the KGB Act has again had direct consequences for them by preventing them from obtaining private sector employment, so as to reverse the burden of proof and to require the Government to disprove the existence of a discriminatory measure in violation of Article 14, taken in conjunction with Article 8. 109. Turning to the facts of the first applicant ’ s case the Court recalls that as of 1999 he received assistance from the Šiauliai Employment Office to re-train and seek other employment. The Court cannot overlook the fact that the first document issued by the Šiauliai Employment Office mentioned that the first applicant “had not been employed because of applicable restrictions” (see paragraph 17 above). That being so, the reasons for his unemployment were explained in more detail in the Šiauliai Employment Office ’ s 28 December 2007 written response to the Supreme Administrative Court. On the basis of that information the Supreme Administrative Court concluded that there was no proof that, after the Court ’ s judgment of 27 July 2004, the first applicant had in fact been prevented from obtaining a private sector job because of the restrictions contained in the KGB Act. Furthermore, the first applicant had not provided any particular information as to who had refused to employ him as a result of those restrictions, or when (see paragraphs 23 and 24 above). Having regard to the documents in its possession, the Court perceives nothing to contradict the conclusion of the domestic court to the effect that after August 2004, that is after the Court ’ s judgment in his case, the first applicant was unemployed for justified reasons, specifically because he lacked the necessary qualifications (see paragraphs 17 and 23 above). At this juncture it is also important to note that the applicant himself had turned down a number of job offers, thus further compounding his situation (see paragraph 25 above). 110. With regard to the second applicant, he has acknowledged having been a trainee lawyer as of 2006. The Court therefore considers that the second applicant has failed to substantiate the claim that, after the judgment of 27 July 2004 in Sidabras and Džiautas case, he continued to be discriminated against on account of his status. Moreover, he himself acknowledged that he had never attempted to obtain other private sector jobs (see paragraph 37 above). 111. In the light of the foregoing, the Court finds that the first and the second applicants have not plausibly demonstrated before the Court that they have been discriminated against after the Court ’ s judgments in their case. 112. Accordingly, there has been no violation of Article 14 of the Convention, taken in conjunction with Article 8, with regard to these two applicants. (ii) As to the third applicant 113. Turning to the judgment of the Supreme Court of 20 June 2008 in the third applicant ’ s case, the Court notes that the court of cassation acknowledged that the third applicant ’ s dismissal was unlawful under the Convention (see paragraph 58 above). The third applicant considered that the most natural execution of the Court ’ s judgment in his case, and that which would best correspond to the principle of restitutio in integrum, would have been simply to reinstate him in his former job at Omnitel. 114. The Court observes that it is not for it to decide whether the provisions of the Law on the Employment Contract or those of the Labour Code were applicable to the third applicant ’ s case and whether, therefore, the Lithuanian courts erred in not reinstating him in his former job at Omnitel. However, the Court does not lose sight of the fact that the Supreme Court limited its analysis to the question of the place of the Convention and the Court ’ s judgments in Lithuanian law. Although the Government and Omnitel have insisted that the reasons for not reinstating the third applicant in his former job at the telecommunications company were economic, technological and organisational (see paragraphs 55 and 99 above), the Supreme Court not only left those other reasons unexamined, but even declared that the other arguments made by the parties in their appeals on points of law were legally irrelevant (see paragraph 60 above). Moreover, the Supreme Court stated explicitly that “while the KGB Act ... is still in force, the question of reinstating the third applicant to his job may not be resolved favourably” (see paragraph 58 above). 115. In view of the foregoing, the Court reiterates its findings in the third applicant ’ s previous case that the application of Article 2 of the KGB Act to his situation, which excluded him from seeking private sector employment on the basis of his “former KGB officer” status, constituted a disproportionate measure in violation of Article 14, taken in conjunction with Article 8 (see Rainys and Gasparavičius, cited above, §§ 36 and 37). 116. In the light of the aforementioned statement by the Supreme Court in the new domestic proceedings, examined in the present case, the Court finds that the Government have not convincingly demonstrated that the Supreme Court ’ s reference to the KGB Act was not the decisive factor forming the legal basis on which the third applicant ’ s claim for reinstatement was rejected. Accordingly, there has been a violation of Article 14, taken in conjunction with Article 8, in this case. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 117. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 118. The third applicant claimed 194,854 Lithuanian litai ( LTL; approximately 56,479 euros (EUR) ) in respect of pecuniary damage suffered as a result of not receiving his salary. The amount was calculated taking the number of months from his dismissal on 23 February 2000 to 23 October 2008, 104 months in total. He submitted a letter from Omnitel indicating that on the date on which his contract had been terminated, his salary had been LTL 4,040. The third applicant also claimed LTL 50,000 (approximately EUR 14,493) in respect of non-pecuniary damage, which he had suffered as a result of the Lithuanian courts ’ failure to reinstate him to Omnitel. 119. The Government disputed the claim. They stated that the just satisfaction awarded to the third applicant by the Court ’ s judgment of 7 April 2005 had covered future pecuniary losses as well. They also noted that the third applicant was employed and had received income during the relevant period. Accordingly, his claims for pecuniary damage were groundless. Lastly, the Government submitted that there was no link between the non-pecuniary damage claimed and the violation of the third applicant ’ s rights under the Convention. 120. The Court reiterates that it has found a violation of Article 14, taken in conjunction with Article 8 of the Convention. There is thus a clear causal link between the alleged pecuniary damage and the violation of the Convention it has found. However, having regard to paragraph 47 of the Rainys and Gasparavičius judgment, the Court observes that it has already awarded the third applicant just satisfaction in respect of both past and future pecuniary loss. That being so, the Court dismisses the third applicant ’ s claims under this head. However, the third applicant is entitled to claim that he has, again, suffered non-pecuniary damage in the new proceedings for reinstatement. Consequently, given the particular circumstances of the case, the Court, on an equitable basis, awards the third applicant EUR 6,000 under this head. B. Costs and expenses 121. The third applicant claimed LTL 17,000 (approximately EUR 4,900) for legal expenses incurred before the Court. 122. The Government argued that the above amount was excessive. 123. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000 for the proceedings before the Court. C. Default interest 124. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been no violation of Article 14 (prohibition of discrimination), taken in conjunction with Article 8 (right to respect for private life) of the Convention, on account of the first two applicants, not being able to obtain employment in the private sector, and, that there had been a violation of Article 14, taken in conjunction with Article 8, on account of the third applicant, not being able to obtain employment in the private sector. The Court found in particular that neither the first nor the second applicant had plausibly demonstrated that they had been discriminated against after its judgments in their case (see above). The first applicant had not provided any particular information as to who had refused to employ him as a result of restrictions under the relevant legislation, or when. Nor did the Court see anything to contradict the domestic courts’ conclusion in his case that he had remained unemployed because he lacked the necessary qualifications. As concerned the second applicant, he had himself acknowledged that he was a trainee lawyer as of 2006 and that he had never attempted to obtain other private sector jobs. However, as concerned the third applicant, the Court was not convinced that the Lithuanian Government had demonstrated that the domestic courts’ explicit reference to the KGB Act – namely, the fact that the third applicant’s reinstatement to his job could not be resolved favourably while the KGB Act was still in force – had not been the decisive factor forming the legal basis on which his claim for reinstatement in the telecommunications company had been rejected. |
540 | Police brutality | II. RELEVANT DOMESTIC LAW 46. A detailed presentation of the relevant legal provisions can be found in Ciorcan and Others v. Romania (nos. 29414/09 and 44841/09, §§ 71-74, 27 January 2015). III. RELEVANT INTERNATIONAL MATERIAL 47. The relevant international material concerning the situation of Roma in Romania is described in Boacă and Others v. Romania (no. 40355/11, §§ 35- 40, 12 January 2016). THE LAW I. ALLEGED VIOLATION OF ARTICLES 3 AND 14 OF THE CONVENTION 48. The applicants complained, under Articles 3, 6 and 14 of the Convention, that police officers had ill-treated them during a raid on 15 December 2011 and that the investigation into those events had not been effective. They further complained that the authorities had used stereotypical arguments to justify the police intervention, which had been accepted by the courts. 49. Being master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, ECHR 2018), the Court considers that the applicant ’ s complaints should be examined only from the standpoint of Articles 3 and 14 of the Convention, which read as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. Admissibility 50. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicants 51. The applicants contended that the evidence in the file, namely medical reports and witness statements, contradicted the Government ’ s version of facts (see paragraphs 11-16 above). They further argued that the domestic courts had ignored the conclusions of the forensic reports, as well as the witness statements, and had turned a blind eye to the racist overtones of the abuse and to the abuse itself. There was no evidence that the applicants had been violent or provocative during the incidents, and remarks to that effect by the police were mere excuses to cover up their own abusive and violent conduct against the applicants. There was also no evidence to sustain the Government ’ s position that the injuries had been self-inflicted. They lastly pointed out that the allegations that they had attempted to intimidate the police officers were unfounded. They reiterated that when the incident had occurred they had been aged 62, 17, 55 and 26 and had been unarmed; they had been tackled by eighty-three law - enforcement officers, all of whom had been carrying lethal weapons. 52. The applicants further contended that the investigation had been neither independent nor effective. They pointed out that the police investigators had been part of the same police unit as the police officers accused of ill- treatment, and that therefore an institutional and hierarchical relationship existed between them. They relied on Anton v. Romania ( no. 57365/12, 19 May 2015 ). They reiterated that the Commissioner for Human Rights had urged the Romanian authorities to set up an independent and effective mechanism for investigating complaints against the police. 53. The applicants further claimed that the investigation had failed to examine the necessity and proportionality of the use of force. Moreover, the conclusion of the investigation had been based solely on the statements by the police officers, thus failing to reconcile the conflicting versions presented by the parties involved. The applicants concluded that the investigation had been conducted in a superficial and subjective manner. 54. The applicants complained that the prosecutor had justified the proportionality of the police intervention by using stereotypical arguments concerning what was perceived to be the attitude of Roma in general and by referring to other unrelated incidents involving members of the Roma community. 55. The applicants maintained that the Roma communities faced an institutional racist bias, manifested throughout police policies and procedures aimed at their communities. They argued that the police intervention plan of 15 December 2011 had clearly shown that the raid had been intended against the Roma community, which had been portrayed as a criminal community. The very essence of the police intervention had been, in their view, racist. Moreover, they averred that the statistical data provided in the intervention plan did not coincide with the figures available from the official census. In their view, this proved that the police had conducted their own census of the Vâlcele population and collected data on criminality based on the ethnic appurtenance of the suspects. Therefore the police portrayed the whole Roma community as being a criminal community and made generalisations which were incompatible with the requirements of Article 14 of the Convention. 56. The applicants denied the so - called “Roma behaviour” allegedly exhibited by the second and fourth applicants, which the authorities had used to justify the injuries suffered by those applicants (see paragraphs 37 and 40 above). 57. Lastly, the applicants argued that the prosecutor had failed to react to the evidence that the police action had been planned and justified in a purely racist manner. (b) The Government 58. The Government accepted that the applicants had suffered physical harm at the hands of the police, but argued that the injuries had not reached a level of severity sufficient to bring them within the scope of Article 3 of the Convention. Moreover, they pointed out that the use of force had been justified and appropriate in the circumstances of the case, bearing in mind the breadth of the criminal activity in the area where the police intervention had occurred, and the applicants ’ provocative conduct. They considered that there was no reason for the Court to depart from the assessment made by the domestic courts in this respect. 59. The Government further pointed out that the police officers had not used firearms and that the police operation had been set up in order to tackle issues in the whole neighbourhood, so it had not been directly aimed at the applicants ’ family. Lastly, they reiterated that the State had a monopoly on the use of lawful violence and that anomy and disrespectful conduct towards the law -enforcement authorities should not be tolerated. 60. The Government noted that the prosecutor had initiated a very complex inquiry into the conduct of the police officers and that the decisions taken had been based on a significant amount of evidence, including statements from the applicants and from all the police officers involved, witness statements, medical reports and material evidence gathered at the scene of the incident. The decisions that the use of force had been legitimate had been supported by compelling evidence. The Government stressed that the Court ’ s assessment must remain subsidiary to that of the domestic authorities. 61. The Government contended that the applicants had failed to substantiate in any manner the allegations of racial motives behind the police officers ’ actions. They further argued that the expression of concern by the Council of Europe ’ s Advisory Committee on the Framework Convention for the Protection of National Minorities about allegations of violence against Roma by Romanian law - enforcement officers and the repeated failure of the Romanian authorities to remedy the situation and provide redress for discrimination did not suffice to consider it established that racist attitudes had played a role in the current case. They contended that the police raid had been linked not to the applicants ’ ethnicity but rather to the need to curb the criminality in the area. 62. The authorities ’ conduct had not been provocative, but strictly defensive. The Government pointed out that the forest ranger had shown no bias against the Roma community, which he had commended for being peaceful and hardworking ( see paragraph 11 above). As for the expression in the prosecutor ’ s decision of 5 August 2013, they argued that it was no more than a description taken from the police report ( see paragraphs 37 and 40 above), and was merely a case of linguistic negligence. The details given in the police reports were a sign of thoroughness in the preparation of their mission, rather than of bias against the applicants ’ ethnicity. (c) The third party 63. The ERRC referred to various international reports and surveys (by the OSCE, Amnesty International, European Union Fundamental Rights Agency – “the FRA”) concerning the increase, in recent years, of anti-Gypsy attitudes in Europe, evidenced in part by an increase in violence against Roma and by violent police raids apparently motivated by stereotypical views on Roma criminality. Various international bodies had shown their concern about reports of racial stereotyping and racist hate crimes against Roma in Romania: the UN Committee on the Elimination of Racial Discrimination (“the CERD”), the UN Committee against Torture, and the Council of Europe ’ s European Commission against Racism and Intolerance (“ECRI”). In addition, surveys conducted between 2005 and 2015 by the National Council for Combating Discrimination and the National Institute for the Study of the Holocaust in Romania had indicated that between 41% and 68% of respondents would prefer not to have a Roma work colleague, neighbour, friend or family member; 21% considered Roma to be a threat; 61% thought that Roma were a source of shame for Romania; and 52% said that Roma should not be allowed to travel outside the country. 64. The ERRC further pointed out that, according to research done by the FRA and the UN Special Rapporteur on extreme poverty, Phillip Alston, Romania did not keep any record of racially-motivated crimes, lacking a comprehensive data-collection system. In the ERRC ’ s view, the Romanian authorities ’ failure to compile data on racially motivated crimes was a symptom of institutional racism, which also undermined the ability to identify patterns of racist violence (they relied in this respect on Milanović v. Serbia, no. 44614/07, § 89, 14 December 2010). They pointed out that, according to information gathered from the mass media, the applicants ’ village belonged to an area with a significant Roma population and with a recent history of serious violence perpetrated against Roma, such as allegations of repeated police abuse, ethnic tensions, and alleged lynching. 65. The ERRC urged the Court to pay particular attention to (1) the lack of appropriate institutional arrangements for protecting Roma (such as lack of training or appropriate records and data); and (2) the evidence of negative stereotypes in respect of the behaviour of Roma or the credibility of complaints brought by Roma. They argued that the racial stereotyping of Roma was likely to corrupt the assessment of the facts by the domestic authorities, particularly in the context of widespread anti-Roma sentiment. They contended that the police might be motivated by stereotypical views of “Roma criminality” in their choice of investigative priorities and by notions of “Roma violence” in choosing the means to intervene in a Roma neighbourhood, just as those stereotypes could affect the opinion of a judge reviewing a complaint concerning police intervention. 66. Lastly, the ERRC submitted that vulnerable victims – such as Roma – alleging racially motivated violence were unlikely to be able to prove beyond reasonable doubt that they had been subjected to discrimination, especially when they were also victims of a failure on the part of the domestic authorities to carry out an effective investigation. They asserted that the authorities ’ failure to implement appropriate legal measures and policies disclosed the existence of institutional racism. 2. The Court ’ s assessment (a) General principles 67. The Court refers to the general principles set out in its case-law concerning the prohibition of ill-treatment and the requirement of an effective investigation into such allegations, as enshrined in Article 3 of the Convention (see Bouyid v. Belgium [GC], no. 23380/09, §§ 81-90 and 114 - 23, ECHR 2015; Boacă and Others v. Romania, no. 40355/11, §§ 66 - 67, 74-75 and 81-84, 12 January 2016; and Samachișă v. Romania, no. 57467/10, §§ 59-64, 16 July 2015). 68. The Court makes further reference to the principles it established under Article 14 of the Convention taken together with Article 3. In particular, it reiterates that a difference in treatment is discriminatory if “it has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised. Where the difference in treatment is based on race, colour or ethnic origin, the notion of objective and reasonable justification must be interpreted as strictly as possible (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 196, ECHR 2007 ‑ IV). Moreover, when investigating violent incidents, State authorities have an additional duty to take all reasonable steps to unmask any racist motives and to establish whether or not ethnic hatred or prejudice may have played a role in the events (see Ciorcan and Others v. Romania, nos. 29414/09 and 44841/09, §§ 156-59, 27 January 2015). (b) Application of those principles to the present case (i) Alleged ill-treatment 69. The Court notes that on the morning of 15 December 2011 the applicants received a visit from eighty-five armed law-enforcement officers (see paragraphs 6, 14 and 16 above). The applicants were unarmed and were not sought by the police for any violent crimes (see, mutatis mutandis, Petruş Iacob v. Romania, no. 13524/05, § 36, 4 December 2012). In the aftermath of that intervention, they were left with injuries that needed medical care. The Court considers that in the circumstances of the case, the injuries alleged by the victims, as established in the forensic medical reports described in paragraphs 18-21 above, attained the minimum level of severity required by Article 3 of the Convention (see, mutatis mutandis, Boacă and Others v. Romania [Committee], no. 40374/11, § 51, 17 January 2017). 70. The Court notes that in their submissions the Government argued that the use of force had been necessary and proportionate and that the applicants had been provocative and disrespectful towards the law - enforcement authorities (see paragraphs 58 and 59 above). However, no action, be it criminal, administrative or civil, was taken against the applicants for alleged abusive behaviour. Moreover, it is to be noted that the applicants were faced with highly-trained officers specialised in rapid intervention, in a relatively confined space (their home). Nothing suggests that the four gendarmes who had immobilised the applicants and who were part of a police force of eighty-five officers present at the scene were overwhelmed by the applicants. 71. As to the authorities ’ hypothesis that the injuries suffered by the second and fourth applicants had been self-inflicted (see paragraphs 37 and 40 above), the Court notes that, other than the statements of the police officers present on the scene, there is no evidence to corroborate it (see, mutatis mutandis, Bouyid, cited above, § 97). 72. In the light of the above findings, the Court considers that neither the domestic courts nor the Government have convincingly shown that, in the particular circumstances of the present case, the force employed by the law- enforcement officers during the events of 15 December 2011 was proportionate (see, mutatis mutandis, Boacă [Committee], cited above, § 55). 73. Accordingly, there has been a breach of Article 3 of the Convention under its substantive limb. (ii) Alleged racial motives for the organisation of the police raid 74. As for the allegations of discrimination, the Court must establish whether or not racial prejudice was a causal factor behind the police intervention (see, mutatis mutandis, Ciorcan, cited above, § 160). 75. In this connection, the Court notes that in the police intervention plan, drafted prior to the police raid of 15 December 2011, the authorities identified the ethnic composition of the targeted community and referred to the alleged anti-social behaviour of ethnic Roma and the alleged high criminality among Roma (see paragraph 13 above). The same assertions were made by the investigators, who explained the applicants ’ alleged aggressiveness by their ethnic traits or by habits “specific to Roma” (see paragraph 37 above). The prosecutor also considered that the police raid had been rendered necessary by the problems experienced with the Roma community and their criminal behaviour (see paragraph 39 above). The Court observes that the authorities extended to the whole community the criminal behaviour of a few of their members on the sole ground of their common ethnic origin (see paragraph 40 above). 76. Turning to the facts of the current case, the Court considers that the manner in which the authorities justified and executed the police raid shows that the police had exercised their powers in a discriminatory manner, expecting the applicants to be criminals because of their ethnic origin. The applicants ’ own behaviour was extrapolated from a stereotypical perception that the authorities had of the Roma community as a whole. The Court considers that the applicants were targeted because they were Roma and because the authorities perceived the Roma community as anti-social and criminal. This conclusion, also supported by the general reports of racial stereotyping of Roma presented by the third party (see paragraph 63 above), goes beyond a simple expression of concern about ethnic discrimination in Romania (see paragraph 61 above and, conversely, Ciorcan, cited above, § 160 ). It shows concretely that the decisions to organise the police raid and to use force against the applicants were made on considerations based on the applicants ’ ethnic origin. The authorities automatically connected ethnicity to criminal behaviour, thus their ethnic profiling of the applicants was discriminatory. 77. Reiterating its findings that the police response was disproportionate to the applicants ’ behaviour (see paragraph 72 above), the Court considers that in the case at hand, the Government failed to prove that considerations other than the applicants ’ ethnicity played an important role in the manner in which the police raid of 15 December 2011 had been organised and carried out. 78. It follows that there has been a violation of Article 14 of the Convention taken in conjunction with Article 3 of the Convention under its substantive limb. (iii) Alleged lack of an effective investigation 79. The Court observes that the applicants complained to the authorities about what they perceived to be frequent and unwarranted acts of violence by police officers against the Roma community (see paragraphs 29, 31, 41 and 43 above). Nonetheless, the authorities accepted as justification for the use of force an assessment made by the police in which negative inference seemed to have been drawn from the ethnic composition of the community (see paragraphs 13 and 39 above). In accepting that justification, the domestic courts did not censure what seems to be a discriminatory use of ethnic profiling by the authorities. Moreover, the authorities fell back on references to cases in which members of the Roma community had been violent towards law - enforcement officials, without explaining how those examples were of any relevance to the case in issue, in so far as they bore no resemblance to the applicants ’ situation and had no direct link to the present case. 80. In the Court ’ s view, in situations where there is evidence of patterns of violence and intolerance against an ethnic minority, the positive obligations incumbent on member States require a higher standard of response to alleged bias-motivated incidents (see the case-law quoted in paragraph 68 above). The Court is mindful of the evidence produced by the parties and the available material which show that, in the respondent State, the Roma communities are often confronted with institutionalised racism and are prone to excessive use of force by the law- enforcement authorities (see the references in paragraph 47 above). In this context, the mere fact that in the present case stereotypes about “Roma behaviour” feature in the authorities ’ assessment of the situation (see paragraph 37 and 40 above), may give rise to suspicions of discrimination based on ethnic grounds. Such suspicions, coupled with the modalities of the intervention of 15 December 2011, should have prompted the authorities to take all possible steps to investigate whether or not discrimination may have played a role in the events. However, the applicants ’ allegations of discrimination against and criminalization of the Roma community have been dismissed by the domestic authorities and courts without any in-depth analysis of all the relevant circumstances of the case (see paragraphs 30 and 45 above). 81. It follows that there has been a violation of Article 14 of the Convention taken in conjunction with Article 3 of the Convention in its procedural aspect. 82. Lastly, the Court notes that the applicants complained under the procedural limb of Article 3, that the criminal investigation had been ineffective (see paragraph 48 above). In particular, they argued that the investigation had been conducted in a superficial and subjective manner (see paragraph 53 above). Therefore this complaint is related to the one already examined under Article 14 of the Convention taken in conjunction with Article 3. Having found a violation of Articles 3 and 14 together (see paragraph 81 above), the Court considers that no separate issue arises under Article 3 of the Convention (see, mutatis mutandis, Hirst v. the United Kingdom (no. 2), no. 74025/01, § 87, 6 October 2005). II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 83. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 84. The applicants claimed the following amounts in respect of non ‑ pecuniary damage : (a) 25,000 euros (EUR) each for the first, second and fourth applicants; and (b) EUR 30,000 for the third applicant. They also asked that the State adopt a plan of measures of general interest aimed at preventing similar cases from arising in the future. 85. The Government argued that the claim was excessive and made reference to the awards granted by the Court in similar cases. 86. Having regard to all the circumstances of the present case, the Court accepts that the applicants must have suffered non-pecuniary damage which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards each applicant EUR 11,700 in respect of non-pecuniary damage, plus any tax that may be chargeable thereon. B. Costs and expenses 87. The applicants also claimed EUR 2,251 for the costs and expenses incurred before the domestic courts and before the Court, to be paid directly into the bank account of Romano CRISS. 88. The Government contested the reality and the necessity of those costs. 89. Regard being had to the documents in its possession and to its case- law, the Court considers it reasonable to award the sum of EUR 2,251 covering costs under all heads, to be paid directly into the bank account of Romano CRISS (see, mutatis mutandis, Khlaifia and Others v. Italy [GC], no. 16483/12, § 288 and point 12 (a) of the operative part, ECHR 2016 (extracts)). C. Default interest 90. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention as concerned the ill-treatment of the applicant family during the raid and two violations of Article 14 (prohibition of discrimination) of the Convention in conjunction with Article 3 because the raid had been racially motivated and the related investigation had been ineffective. It found in particular that there had been no justification for the disproportionate use of force during the raid on the applicant family’s home, which had left them with injuries requiring treatment in hospital. It also noted that the applicants had been unarmed and had never been accused of any violent crime, while the four gendarmes who had raided their home had been highly trained in rapid intervention. The Court further considered that the applicants had been targeted because the authorities had perceived the Roma community in general as criminal. That had amounted to ethnic profiling and had been discriminatory. |
140 | Sexual abuse | II. RELEVANT DOMESTIC LAW AND PRACTICE 37. The Finnish Constitution ( Suomen perustuslaki, Finlands grundlag, Act no. 731/1999) provides in relevant parts: “Article 10 – The right to privacy Everyone ’ s private life, honour and the sanctity of the home are guaranteed. ... ... Article 12 – Freedom of expression and right of access to information Everyone has the freedom of expression. Freedom of expression entails the right to express, impart and receive information, opinions and other communications without prior prevention by anyone. More detailed provisions on the exercise of the freedom of expression are laid down by an Act. ...” 38. Chapter 24, section 9, subsections 1 and 2, of the Penal Code ( rikoslaki, strafflagen, Act no. 531/2000) provided, at the relevant time, as follows : “A person who 1) gives false information or makes a false insinuation about another person so that the act is conducive to causing damage or suffering to that person, or subjecting that person to contempt, or 2) disparages another person in a manner other than referred to in point 1 shall be convicted of defamation and sentenced to a fine or imprisonment for a maximum period of six months. Criticism that is directed at a person ’ s activities in politics, business, public office, public position, science, art or in comparable public activity, and which does not clearly overstep the limits of what can be considered acceptable, does not constitute defamation as set out in point 2 of paragraph 1.” 39. The above-mentioned provision was amended in 2013 (Act no. 879/2013). The amended provision entered into force on 1 January 2014 and reads currently as follows: “ A person who 1) spreads false information or a false insinuation of another person so that the act is conducive to causing damage or suffering to that person, or subjecting that person to contempt, or 2) disparages another in a manner other than referred to in point 1) shall be sentenced for defamation to a fine. Also a person who spreads false information or a false insinuation about a deceased person, so that the act is conducive to causing suffering to a person to whom the deceased was particularly close, shall be sentenced for defamation. Criticism that is directed at a person ’ s activities in politics, business, public office, public position, science, art or in comparable public activity and that does not obviously exceed the limits of propriety does not constitute defamation referred to in subsection 1, point 2). Presentation of an expression in the consideration of a matter of general importance shall also not be considered defamation if its presentation, taking into consideration its contents, the rights of others and the other circumstances, does not clearly exceed what can be deemed acceptable. ” 40. The relevant provisions of the Child Welfare Act ( lastensuojelulaki; barnskyddslagen, Act no. 683/1983) and the domestic practice are outlined in the Court ’ s judgment in Juppala v. Finland, cited above, §§ 19-22. THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 41. The applicant complained under Article 10 of the Convention of a violation of her freedom of expression. 42. Article 10 of the Convention reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 43. The Government contested that argument. A. Admissibility 44. The Court notes that the applicant ’ s complaint under Article 10 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 45. The applicant argued that she had been convicted on the basis of one telephone conversation with a social worker on 19 October 2007. She had been convicted of something that was not a crime in Finland, but a duty. The Juppala case (see Juppala v. Finland, cited above ) should have been taken into account in the domestic proceedings. The applicant had had an even greater duty to help her child than the grandmother in the Juppala case as, according to Finnish law, a parent had a duty to protect a child who was in their custody. In this case it had been the social authorities themselves who had made the first report to the police. When it had become clear that the child was not heard, the applicant had the duty to continue demanding a better examination of the case. This duty continued as long as there was a concern and no alternative explanation had been provided for the child ’ s symptoms, and no such explanation was ever provided in the present case. The social authorities had been the correct and only authorities to help the child. 46. The applicant maintained that she had been communicating only with authorities acting under professional secrecy and that she had been correct with the child ’ s father. She could not have committed any crime simply by seeking help and proper examination of her child ’ s case, as that was her duty. She had acted in good faith and on the advice of a social worker. Therefore the applicant ’ s right to freedom of expression had been seriously violated when she was convicted of defamation. (b) The Government 47. The Government found it uncontested that the applicant ’ s conviction for defamation and the liability to pay damages had amounted to an interference with her right to freedom of expression under Article 10 of the Convention. The impugned measures had had a basis in domestic law, namely in Article 12 of the Constitution and Chapter 24, section 9, of the Penal Code. The interference had thus been “prescribed by law”. The impugned measures had also pursued the legitimate aim of protecting the private life and reputation of the child ’ s father. 48. The Government noted that, according to the Appeal Court, the applicant had not presented any evidence showing that she had reason to consider that the information she had disclosed about the child ’ s father to the child welfare authorities was true. This was especially so as the applicant had known that the pre-trial investigation had just been concluded and that this investigation had not found any evidence to support her allegations. The pre-trial investigation had been conducted only on the basis of the applicant ’ s allegations. 49. The Government argued that the present case differed crucially from the case Juppala v. Finland. In the latter case the applicant had clearly seen the child ’ s bruised body, she had acted in good faith and was thus entitled to use the reporting system without any potential “chilling effect” of a criminal prosecution, whereas in the present case the applicant had already used the reporting system and a careful pre-trial investigation had been concluded in the matter with no results. The Government maintained that the applicant could not be considered as having acted in the same kind of good faith as the applicant in the Juppala case, as there were no veritable signs or symptoms supporting her allegations. Moreover, the Appeal Court had examined the case as a whole and taken into account the applicant ’ s particular status in sentencing. The national authorities were thus entitled, in the circumstances of the case, to interfere with the applicant ’ s right to freedom of expression and that interference was proportionate and necessary in a democratic society. There was thus no violation under Article 10 of the Convention. 2. The Court ’ s assessment 50. It is common ground between the parties that the applicant ’ s conviction constituted an interference with her right to freedom of expression as guaranteed by Article 10 § 1 of the Convention. Moreover, the Government argued that the impugned measures were “prescribed by law” as they had a basis in domestic law, namely in Article 12 of the Constitution and Chapter 24, section 9, of the Penal Code, and that the interference also pursued the legitimate aim of protecting the private life and reputation of the father of the child. The applicant did not submit any observations in this respect. The Court accepts that the applicant ’ s criminal conviction was based on a reasonable interpretation of the Penal Code, and that the interference was thus “prescribed by law” (see Juppala v. Finland, cited above, § 40; Nikula v. Finland, no. 31611/96, § 34, ECHR 2002 ‑ II; Selistö v. Finland, no. 56767/00, § 34, 16 November 2004; and Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 43, ECHR 2004 ‑ X). It also pursued the legitimate aim of protecting the private life and reputation of the father of the child. 51. The Court recalls that an interference will be considered “necessary in a democratic society” for the achievement of a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In its assessment, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts (see Nikula v. Finland, cited above, § 44). The Court recalls that the quality of judicial review in respect of the necessity of the measure is of particular importance in the context of the proportionality assessment under Article 10 of the Convention (see Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 108, ECHR 2013 (extracts) ). The margin of appreciation in this context is measured by reviewing the extent to which the reasoning of the national courts engages with the general principles under Article 10 and the extent to which the balance struck between the competing rights at the domestic level is satisfactory (see Erla Hlynsdόttir v. Iceland (no. 3), no. 54145/10, § 59, 2 June 201 5; and Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 67, ECHR 2012 ). In exercising its supervisory function, the Court must look at the impugned interference in the light of the case as a whole including, in this case, the content of the declarations held against the applicant and the context in which they were made. 52. This case calls into consideration two countervailing interests, each of which are of high social importance: the need to safeguard children from abuse by their own parents, and the need to protect parents from unwarranted interference with their right to respect for their private and family life or the risk of unjustified arrest and prosecution. The first of these interests involves protection of children as actual or possible victims of crime. The Court has emphasised that children and other vulnerable individuals in particular are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity (see, mutatis mutandis, X and Y v. the Netherlands, 26 March 1985, §§ 21 - 27, Series A no. 91; Stubbings and Others v. the United Kingdom, 22 October 1996, §§ 62 - 64, Reports of Judgments and Decisions 1996 ‑ IV; and also the United Nations Convention on the Rights of the Child, Articles 19 and 37). The Court would refer, in particular, to the case of A. v. the United Kingdom (23 September 1998, § 22, Reports 1998 ‑ VI) where a stepfather had subjected a child to treatment contrary to Article 3 and was acquitted, having argued that the treatment amounted to “reasonable chastisement”. The Court held in that case that the obligation under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, required States to take measures designed to ensure that individuals within their jurisdiction were not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals. 53. If the source of the abuse is the parent, the child is at risk from his primary and natural protector within the privacy of his home. Child abuse is indeed a challenging form of criminal conduct to combat, because its existence is difficult to uncover. Babies and young children are unable to tell, older children are often too frightened. The issue in connection with the present application is about striking a proper balance between the need to protect children against the risk of potentially serious harm and the need to protect a parent against being wrongly suspected of having abused his or her child. 54. The Court notes that the applicant first contacted the child welfare authorities and voiced her concerns about the child and her suspicions of sexual abuse while the parents were engaged in a dispute relating to the custody and contact rights in respect of the child. Following the applicant ’ s first contact in mid-August 2007, the child welfare authorities decided to report the matter to the police for investigation. A pre-trial investigation was conducted but it was concluded with the finding that there was no appearance of any crime. After having been informed of this conclusion, the applicant again contacted the child welfare authorities on 19 October 2007, insisting on another investigation. It was in respect of her second appeal to the authorities to pursue a criminal investigation against the father of her child that the applicant was later charged and convicted of defamation. The applicant ’ s third report regarding suspicions of sexual abuse of her child, addressed to the police on 18 January 2008, is not the subject of the present case. 55. The seriousness of child abuse as a social problem requires that persons who act in good faith (see Juppala v. Finland, cited above, § 42; and, mutatis mutandis, Guja v. Moldova [GC], no. 14277/04, § 77, ECHR 2008), in what they believe are the best interests of the child, should not be influenced by the fear of being prosecuted or sued when deciding whether and when their doubts should be communicated to health care professionals or social services. There is a delicate and difficult line to tread between taking action too soon and not taking it soon enough. The duty toward the child in making these decisions should not be hampered by a risk of exposure to claims by a distressed parent if the suspicion of abuse proves unfounded. On the other hand, it is justified that acts motivated by a personal grievance or antagonism or an expectation of personal advantage be discouraged, including in the context of disputes relating to the custody or visiting rights concerning a child. 56. In the Juppala case the Court noted that the possibility to voice a suspicion of child abuse, formed in good faith, in the context of an appropriate reporting procedure, should be available to any individual without the potential “chilling effect” of a criminal conviction or an obligation to pay compensation for harm suffered or costs incurred (see Juppala v. Finland, cited above, § 43). In this connection, the Court notes and welcomes the amendment made by the Finnish authorities in Chapter 24, section 9, of the Penal Code by which the possibility of imposing imprisonment for defamation was removed from penal sanctions available under that provision (see paragraph 39 above). 57. In the present case, the Court cannot overlook the fact that according to the findings of the domestic courts, the applicant did not – following the closure of the pre-trial investigation that had been carried out on the basis of her first report of suspicions of abuse – have a sufficient factual basis for allegations of criminal conduct by her child ’ s father. Nor can the Court disregard the fact that the applicant ’ s allegations had been raised while a dispute over the custody and visiting rights of the child was pending before the courts. While the Court is not in a position to enter into any assessment of its own regarding the facts of the case, nor is it its role to do so, or to speculate about the motives involved in the events that preceded the defamation proceedings which are the subject of the applicant ’ s complaint, the Court notes the following circumstances in particular. 58. Firstly, the criminal charge against the applicant was based solely on statements made by her in a single telephone conversation with an official of the child welfare services, who herself was subject to obligations arising from professional secrecy. Secondly, while the charge and conviction were based on an unsubstantiated allegation that the child was at risk of being sexually abused by the father, the evidence as recorded in the judgment of the District Court does confirm, inter alia, that the applicant had expressed the concern that the pre-trial investigation had been inadequate as the child herself had not been interviewed because of her young age. 59. The Court must look not only at the content of the interference complained but also at the context in which it was made (see Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 69, ECHR 2004 ‑ XI). Article 10 of the Convention protects not only the substance of the ideas and information expressed but also the form in which they are conveyed (see Nikula v. Finland, cited above, § 46). In the present case, the context of the interference with the applicant ’ s Article 10 rights was the confidential telephone conversation with a public official. The Court does not find it irrelevant, as did the Appeal Court, that the insinuation was made to a public official who was bound by confidentiality but, on the contrary, finds that this fact is relevant to the assessment of the proportionality of the interference (see Yankov v. Bulgaria, no. 39084/97, § 141, ECHR 2003 ‑ XII (extracts) ). 60. Moreover, the Court does not find that bringing criminal charges against the applicant and convicting her for defamation was a course of action that can be considered proportionate with a view to the requirements of Article 10 of the Convention. Although the applicant was only punished by a fine, the Court is unable to accept in the present case that there was any “pressing social need” to interfere with the applicant ’ s freedom of expression by imposing a criminal sanction on her. 61. Under these circumstances, the Court finds that the reasons relied on by the domestic courts were not relevant and sufficient to show that in the present case the interference complained of was “necessary in a democratic society”. Having regard to all the foregoing factors, and taking into account the margin of appreciation afforded to the State in this area, the Court considers that the domestic authorities failed to strike a fair balance between the competing interests at stake. 62. There has therefore been a violation of Article 10 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 63. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 64. The applicant claimed 43, 182. 49 euros (EUR) in respect of pecuniary damage and EUR 30,000 in respect of non-pecuniary damage. 65. The Government considered that the pecuniary damage listed by the applicant as “other costs which were the direct consequences of the case” in the amount of EUR 35,180.63 should be rejected in full whereas the remaining pecuniary damage of EUR 8,001.86 plus interest could be accepted. As to the non-pecuniary damage, the Government considered that compensation in the special circumstances of the present case should not exceed the amount of EUR 2,500. 66. The Court finds that there is a causal link between the violation found and the pecuniary damage alleged in the amount of EUR 8,001.86; it therefore accepts this claim and awards the applicant EUR 8,001.86 as compensation for pecuniary damage. As to non-pecuniary damage, it awards the applicant EUR 5,000. B. Costs and expenses 67. The applicants also claimed EUR 19,040.63 for the costs and expenses incurred before the domestic courts and EUR 19,500 for those incurred before the Court. 68. The Government considered that, as far as the costs and expenses incurred before the domestic courts were concerned, the applicant ’ s claim should be rejected in full by virtue of Rule 60 of the Rules of Court due to the lack of any itemisation. As to the costs and expenses incurred before the Court, the Government estimated the applicant ’ s claims as excessive as to quantum and considered that reasonable compensation should not exceed EUR 3,900 (inclusive of value-added tax). 69. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings for the lack of itemisation and considers it reasonable to award the sum of EUR 6,000 (inclusive of value ‑ added tax) for the proceedings before the Court. C. Default interest 70. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. It found in particular that the Finnish authorities had not struck a fair balance between the need to protect the applicant’s daughter against the risk of potentially serious harm and the need to protect the father against being wrongly suspected of child abuse. Indeed, it had been disproportionate to pursue criminal charges against the applicant and convict her of defamation in the context of her case, namely a confidential telephone conversation between her and a social worker. |
448 | Other applications of interim measures | II. RELEVANT DOMESTIC LAW AND PRACTICE 83. The Rules on Medical and Sanitary Care in Detention Centres and Penitentiaries, approved by Decree no. 3/6 of 18 January 2000 of the State Department for the Enforcement of Sentences, stipulate that medical assistance to HIV-infected persons is to be provided on the same basis as to everybody else (paragraph 4.3.4). The Rules also contain recommendations stating that accessible, informative and supportive counselling should be available before and after HIV-testing (annex 28 to paragraph 4.3.4). 84. The relevant provisions of Decree No 186/607 of 15 November 2005 of the Ministry of Health and the State Department for the Enforcement of Sentences on the Antiretroviral Treatment of Persons with HIV/Aids Detained in Prisons and Pre-Trial Detention Centres are summarised in the case of Yakovenko v. Ukraine (no. 15825/06, §§ 49-52, 25 October 2007). 85. Article 18 of the Pre-trial Detention Act (1993) sets out rules governing the use of security measures, including the use of handcuffs. Prison officers are entitled to use force and special equipment, including unarmed combat, handcuffs and truncheons, with a view to suppressing physical resistance, violence, outrage ( безчинства ) and opposition to the lawful directions of the authorities of the detention facility, when other means of achieving a legitimate objective have proved ineffective. The type of security measure and the time and manner of its use depend on the particular circumstances of the case and the personality of the detainee. 86. Article 140 § 1 of the Criminal Code penalises medical negligence which has led to grave consequences for the patient by “debarring from the holding of certain offices or pursuing certain activities” for a term of up to five years, or by correctional work for up to two years, or by restriction or deprivation of liberty for the same term. III. RELEVANT INTERNATIONAL MATERIALS 87. The relevant extracts from the third General Report [CPT/Inf (93) 12] of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows: “ a. Access to a doctor ... 35. A prison’s health care service should at least be able to provide regular out-patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds). ... Further, prison doctors should be able to call upon the services of specialists. ... Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner. 36. The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital. ... 37. Whenever prisoners need to be hospitalised or examined by a specialist in a hospital, they should be transported with the promptness and in the manner required by their state of health.” b. Equivalence of care 38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly. There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.). 39. A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient’s evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment. Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise. 40. The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service.” 88. The guidelines of the World Health Organisation (“WHO”) on antiretroviral therapy for HIV infection in adults and adolescents can be found in the judgment in the case of Kozhokar v. Russia, no. 33099/08, §§ 77-79, 16 December 2010. THE LAW I. ALLEGED VIOLATIONS OF ARTICLES 2 AND 3 OF THE CONVENTION IN RESPECT OF THE FIRST APPLICANT 89. Both the first applicant, while still alive, and the second applicant, in maintaining her son’s application and joining the case on her own behalf after his death, complained that the State had failed to protect his health, physical well-being and life, contrary to Articles 2 and 3 of the Convention. The second applicant further complained under Article 3 of the Convention about her son’s handcuffing in hospital. Lastly, she complained that the domestic investigation into his death had been ineffective. 90. Articles 2 and 3 of the Convention, relied on by the applicants, read as follows in so far as relevant: Article 2. “1. Everyone’s right to life shall be protected by law.” Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 1. Victim status 91. The Court notes at the outset that the second applicant may claim to be a victim within the meaning of Article 34 of the Convention of the violations alleged by and on behalf of her late son under Articles 2 and 3 of the Convention (see Renolde v. France, no. 5608/05, § 69, 16 October 2008). 2. Exhaustion of domestic remedies as regards the medical care provided to the first applicant and his death 92. The Government argued that the above complaints were premature. They noted, in particular, that the criminal investigation (instituted on 27 December 2010) regarding the medical assistance provided to the first applicant by the Central Hospital’s doctors had not yet been completed. The Government further observed that – as of the date of their observations – the second applicant had not challenged the decision of the Bakhchysaray Prosecutor of 29 April 2011 refusing to institute criminal proceedings against the staff of the ITT and the SIZO in connection with the medical care provided to the first applicant during his detention in those facilities. 93. The second applicant submitted that after the domestic authorities had dismissed her son’s numerous requests for release and for specialised medical treatment, which he had raised in an attempt to save his life, there remained no effective domestic remedies for her to exhaust after his death. She further expressed the view that, in any event, the domestic investigation into the circumstances of the first applicant’s death had been slow and ineffective. The second applicant therefore considered it pointless to await its completion. 94. As regards the rule of exhaustion of domestic remedies, the Court emphasises that it must be applied with some degree of flexibility and without excessive formalism. The Court has already held on a number of occasions that this rule is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case (see Akdivar and Others v. Turkey [GC], 16 September 1996, § 69, Reports of Judgments and Decisions 1996 ‑ IV, and Aksoy v. Turkey, 18 December 1996, §§ 53-54, Reports 1996-VI). The Court looks, in particular, whether the applicant did everything that could reasonably be expected in order to exhaust available domestic remedies (see Merit v. Ukraine, no. 66561/01, § 58, 30 March 2004). 95. The Court observes that the Government’s objection in the present case raises issues which are inextricably linked to the question of the effectiveness of the domestic investigation into the first applicant’s death. Given the second applicant’s complaint about the alleged ineffectiveness of the investigation in question, the Court would normally join this objection to the merits of the aforementioned complaint (see, for example, Matushevskyy and Matushevska v. Ukraine, no. 59461/08, § 66, 23 June 2011). However, the particular circumstances of this case call for a different approach. 96. It is noteworthy that, in assessing the effectiveness of a domestic remedy for a complaint under Articles 2 and 3 of the Convention with regard to lack of sufficient care for an applicant suffering from an illness in detention, the Court considers that a decisive question is whether that remedy can bring direct and timely relief. Such a remedy can, in principle, be both preventive and compensatory in nature. Where the applicant has already resorted to either of the available and relevant remedies, considering it to be the most appropriate course of action in his or her particular situation, the applicant should not then be reproached for not having pursued an alternative remedial course of action (see, mutatis mutandis, Melnik v. Ukraine, no. 72286/01, §§ 68 and 70, 28 March 2006). 97. The Court observes that the parties are in dispute as to when the authorities became aware of the first applicant’s HIV status. It will deal with this particular issue later, when assessing the merits of the case. In order to establish whether the rule of exhaustion of domestic remedies has been respected, it suffices for the Court to note the numerous requests for release on health grounds lodged by the first applicant in June 2008 with the court dealing with his criminal case. Those requests, in the Court’s view, clearly voiced the first applicant’s fears for his life (see and compare with Dybeku v. Albania, no. 41153/06, § 28, 18 December 2007, and Makharadze and Sikharulidze v. Georgia, no. 35254/07, § 54, 22 November 2011). 98. In other words, at the most pertinent time, when the first applicant was still alive and could personally care for his well-being, he did everything reasonable, at least from early June 2008 onwards, to alert the relevant authorities to his progressing HIV infection and the concomitant diseases, seeking preventive remedial action for the grievances set out in the present application. In such circumstances, it would be wholly inappropriate, from the point of Article 35 § 1 of the Convention, to reproach the second applicant for not having retrospectively pursued any compensatory remedy by seeking completion of the criminal investigation and getting redress for the State’s failure to protect her son’s health and life (see Makharadze and Sikharulidze v. Georgia, cited above, § 55). 99. The Court therefore considers that the first applicant sufficiently pursued a preventive domestic remedy for the exhaustion requirement to be complied with. 100. Accordingly, the Court dismisses this objection by the Government without joining it to the merits of the complaint about the effectiveness of the domestic investigation into the first applicant’s medical treatment and death. 3. Exhaustion of domestic remedies as regards the first applicant’s handcuffing in hospital 101. The Government submitted that the applicants could have, but failed to, complain about the first applicant’s handcuffing to the prosecuting authorities or courts. The Government therefore expressed the view that they could not be regarded as having exhausted the available domestic remedies before bringing this complaint to the Court, as required by Article 35 § 1 of the Convention. 102. The second applicant disagreed. 103. The Court notes that, as can be seen from the case-file materials, the second applicant did complain about her son’s handcuffing to the Chief of the Bakhchysaray Police Department and to the Bakhchysaray Prosecutor (see paragraph 49 above). The first applicant’s lawyer also raised this issue before the domestic authorities (see paragraph 51 above). These complaints, however, produced no effect. 104. The Court therefore concludes that the applicants took sufficient steps at the domestic level to bring this complaint to the attention of the national authorities (see Sylenok and Tekhnoservis-Plus v. Ukraine, no. 20988/02, § 76, 9 December 2010). Moreover, it appears that the first applicant’s handcuffing in hospital constituted a practice officially condoned or tolerated by the guards’ supervisors (see, for a similar situation, Okhrimenko v. Ukraine, no. 53896/07, § 94, 15 October 2009, and, for an example to the contrary, Tsygoniy v. Ukraine, no. 19213/04, § 51, 24 November 2011). 105. Accordingly, the Court also rejects this objection by the Government. 4. Otherwise as to admissibility 106. The Court considers that the above complaints (see paragraph 89 above) are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further finds that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1. Scope of the issues for consideration 107. The Court notes that in previous cases where a death occurred in detention and the deceased’s relatives complained about the lack or inadequacy of medical care prior to the death, relying on both Articles 2 and 3 of the Convention, it examined that complaint primarily from the standpoint of Article 2 (see Tarariyeva v. Russia, no. 4353/03, § 68, ECHR 2006 ‑ XV (extracts)), and Kats and Others v. Ukraine, no. 29971/04, § 131, 18 December 2008). 108. In cases where the applicants referred to both the aforementioned provisions in respect of allegedly inadequate medical assistance available to them in detention, but where there was no death, the Court examined the complaint under Article 3 of the Convention (see, for example, A.B. v. Russia, no. 1439/06, § 114, 14 October 2010). 109. The present case is, however, different from any of the situations described above. The Court notes that the first applicant died two weeks after his release from detention following specialised treatment in a civil hospital. 110. The Court observes that the applicants’ complaints, which they raised with reference to both Articles 2 and 3 of the Convention, concern several specific issues, namely (a) whether adequate medical assistance was available to the first applicant during his detention in the ITT and the SIZO; (b) whether the Central Hospital’s doctors provided him with medical care which was prompt and which adequately addressed his deteriorating state of health; (c) whether the first applicant’s handcuffing in hospital amounted to inhuman or degrading treatment; (d) whether the authorities can be regarded as having discharged their obligation to protect the first applicant’s life; and (e) whether there was an effective domestic investigation into the circumstances of his death. 111. In view of the complex issues to be considered, the Court finds that it must assess each one of them separately: the three first-mentioned ones – in the context of Article 3 of the Convention; and, given the alleged causal link and contributory nature to the first applicant’s death, also assess them jointly in considering the complaints under Article 2 of the Convention (see Bekirski v. Bulgaria, no. 71420/01, § 124, 2 September 2010). 2. Medical care in the detention facilities (a) The parties’ submissions 112. The first applicant complained that the administration of the ITT and the SIZO had failed to respond in a timely and adequate manner to the deterioration of his health in detention. He submitted that, starting from early March 2008 his health sharply deteriorated. Namely, he allegedly had constant fever of 39-40ºC and could not eat because of serious digestion disorders. Instead of ensuring that he received comprehensive medical examinations and treatment, the administration of the detention facilities had allegedly confined itself to calling an ambulance on several occasions. 113. Referring to the special medical monitoring of persons with HIV infection, the second applicant submitted that the health-care establishments, law-enforcement authorities and the Department for Enforcement of Sentences must have been aware of the HIV-positive status of her son. Furthermore, she noted that he had informed the investigator of his health condition immediately after his placement in police custody on 20 November 2007. 114. The second applicant emphasised that at the time of his placement in detention in November 2007 her son had been in good health. His HIV ‑ positive status had not in fact manifested itself then as having any further negative consequences for his health. Accordingly, the fact that the first applicant had not registered for medical monitoring at the Aids Centre could not be regarded as having absolved the authorities who were holding him in detention from their duty to provide him with medical treatment once it became necessary with the deterioration of his health in March 2008. 115. The Government contested the above arguments. They noted that the first applicant had never himself sought medical monitoring or any assistance in respect of his HIV infection while at liberty. Moreover, during his detention he had concealed his HIV status from the authorities. The medical staff at the detention facilities could not therefore be reproached for not applying a coherent strategy to the first applicant’s treatment in respect of the HIV infection, as they did not know about it. (b) The Court’s assessment 116. The Court notes the dispute between the parties as to when the administration of the detention facilities in which the first applicant was detained became aware of his HIV status. Consequently, the Court will begin its examination of the applicants’ complaint regarding the alleged lack of timely and adequate medical care available to the first applicant in those detention facilities by establishing this pertinent fact. (i) Establishment of facts 117. In the absence of the applicants’ allegations or any other indication to the contrary, the Court considers it an established fact that the first applicant himself became aware of his HIV-positive status in February 2006 (see paragraphs 8, 21 and 59 above). 118. It is also common ground between the parties that he had not sought any medical treatment in that regard before he was detained. 119. As further agreed by both parties, the first applicant felt well at the time of his placement in detention on 20 November 2007. 120. The question arises whether and when thereafter he informed the administration of the ITT and/or the SIZO of his HIV-positive status. 121. According to the second applicant, her son immediately informed the investigator of his condition. The Court notes, however, that this statement is not supported by any evidence. To the contrary, it appears to be refuted by the first applicant’s own written statement of 20 June 2008, in which he admitted that he had concealed his HIV status from the authorities “for understandable reasons” (see paragraph 36 above). 122. Neither does the Court see any indication in the case file that the authorities might have received this information from any other source like, for example, from the second applicant who had apparently herself remained unaware of her son’s condition until early June 2008 (see paragraph 21 above, and, for the case-law to compare, see Kats and Others v. Ukraine, cited above, §§ 33 and 106). 123. Furthermore, the Court does not lose sight of the records of the first applicant’s medical examinations of 31 May and 3 June 2008, from which it can infer that the first applicant, surprisingly, remained silent about his HIV status even before the doctors who examined him. 124. Lastly, given the confidentiality requirements inherent in the medical monitoring of persons with the HIV-positive status, the Court dismisses the second applicant’s argument that the authorities must have been aware her son was HIV-positive merely because the Aids Centre had earlier diagnosed him as such. 125. In sum, the Court is inclined to agree with the Government’s account of the events, according to which the first applicant did not disclose his HIV status to the authorities. The Court therefore accepts that the authorities became aware of his HIV infection only on 5 June 2008, when he was diagnosed with that infection after an examination in the Central Hospital (see paragraph 22 above). (ii) Examination of the complaint 126. The Court emphasises that Article 3 of the Convention imposes an obligation on the State to ensure, given the practical demands of imprisonment, that the health and well-being of a prisoner are adequately secured by, among other things, providing him with the required medical assistance (see Kudła v. Poland [GC], no. 30210/96, §§ 93-94, ECHR 2000 ‑ XI). 127. In order to establish whether an applicant received the requisite medical assistance while in detention, it is crucial to determine whether the State authorities provided him with the minimum scope of medical supervision for the timely diagnosis and treatment of his illness (see Popov v. Russia, no. 26853/04, § 211, 13 July 2006, and Mechenkov v. Russia, no. 35421/05, § 102, 7 February 2008). 128. In other words, the Court must determine whether during his detention an applicant needed regular medical care, whether he was deprived of it as he claimed, and if so whether this amounted to inhuman or degrading treatment contrary to Article 3 of the Convention (see Farbtuhs v. Latvia, no. 4672/02, § 53, 2 December 2004, and Sarban v. Moldova, no. 3456/05, § 78, 4 October 2005). 129. One of the important factors for such an assessment is a sharp deterioration in a person’s state of health in detention facilities, which inevitably casts doubts as regards the adequacy of medical care available therein (see Farbtuhs v. Latvia, cited above, § 57, and Khudobin v. Russia, no. 59696/00, § 84, ECHR 2006 ‑ XII (extracts)). 130. In establishing the scope of the medical supervision required and provided in each particular case, the Court must have regard to the medical documents submitted by the parties (see Popov v. Russia, cited above, ibid.). 131. The Court reiterates in this connection that distribution of the burden of proof is intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake (for the principle-setting case-law see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005 ‑ VII; and, for the application of this principle in the context of complaints on inadequacy of medical care in detention, see Štrucl and others v. Slovenia, nos. 5903/10, 6003/10 and 6544/10, § 65, 20 October 2011). 132. The Court notes that information about conditions of detention, including the issue of medical care, falls within the knowledge of the domestic authorities. Accordingly, applicants might experience difficulties in procuring evidence to substantiate a complaint in that connection (see Vladimir Vasilyev v. Russia, no. 28370/05, § 66, 10 January 2012). What is expected from applicants in such cases is to submit at least a detailed account of the facts complained of (see Visloguzov v. Ukraine, no. 32362/02, § 45, 20 May 2010). The burden of proof is then shifted to the Government to provide explanations and supporting documents. 133. Thus, an ample medical file proving constant medical supervision and adequate medical care might refute an applicant’s view regarding the medical care at his disposal (see Pitalev v. Russia, no. 34393/03, § 55, 30 July 2009). Conversely, the Government’s failure to provide pertinent medical documents casts doubts as regards the availability of adequate medical supervision of and assistance to the applicant in detention (see, mutatis mutandis, Petukhov v. Ukraine, no. 43374/02, § 96, 21 October 2010). 134. Turning to the present case, the Court notes that the applicants made quite specific submissions regarding the deterioration of the first applicant’s health from March 2008. They further alleged that the medical response on the part of the detention facilities had been limited to sporadic ambulance calls (see paragraphs 17 and 112 above). 135. It is true that they did not submit any documentary evidence in support of those allegations. At the same time the Court does not lose sight of the second applicant’s efforts to collect such evidence. Thus, in the course of the domestic investigation into the death of her son she sought access to and examination of his complete medical file from the detention facilities. That request was never granted and this documentation was not made available to the second applicant or to the domestic prosecution authorities (see paragraphs 63 and 81 above). 136. Accordingly, it was for the Government to submit the aforementioned medical file detailing the first applicant’s actual medical needs during his detention and the medical response to them. 137. The Court notes, however, that not a single medical document was submitted to it by the Government regarding the first applicant’s detention between February and May 2008. 138. In such circumstances the Court finds itself in a position to infer from the Government’s failure to submit copies of any relevant medical documents that the first applicant did not receive adequate medical assistance for his deteriorating health in the ITT and the SIZO, even assuming that he had concealed his HIV status from the authorities (see, mutatis mutandis, Mechenkov v. Russia, cited above, § 110). 139. Accordingly, there has been a violation of Article 3 of the Convention in this regard. 3. Medical assistance in the Central Hospital (a) The parties’ submissions 140. The second applicant submitted that even after her son had been sent for examination to the Central Hospital (a civil health-care establishment), its doctors unjustifiably delayed his hospitalisation and specialised treatment, and this irreversibly undermined his prospects of recovery. 141. The Government disagreed. Referring to the case of Okhrimenko v. Ukraine (cited above, § 71), they contended that the Court was not in a position to speculate on the adequacy of medical treatment provided by civil doctors. (b) The Court’s assessment 142. The Court notes that the hospital in question was a public institution, the acts and omissions of its medical staff being therefore capable of engaging the responsibility of the respondent State under the Convention (see Glass v. the United Kingdom, no. 61827/00, § 71, ECHR 2004 ‑ II). 143. This is, in any event, not crucial as at the time the first applicant remained in detention and thus under the full control of the authorities, which were obliged to account for his health and to provide him with adequate medical care. 144. The Court agrees with the Government that it is not its task to assess the medical treatment provided by civil doctors. 145. At the same time, it notes that the domestic authorities themselves acknowledged that the medical assistance provided to the first applicant by the Central Hospital’s doctors in June 2008 could not be regarded as timely and adequate. Specifically, the Crimea Bureau for Forensic Medical Examinations stated in its report of 26 November 2010 that at least on two occasions, on 5 and 18 June 2008, the Central Hospital’s doctors underestimated the seriousness of the first applicant’s condition and denied him the urgent hospitalisation which he required (see paragraphs 69, 70-72 and 74 above, and, for the case-law to compare, see Geppa v. Russia, no. 8532/06, § 82, 3 February 2011). 146. The Court has no reasons to question those findings. 147. It therefore concludes that there has been a violation of Article 3 of the Convention regarding this particular aspect as well. 4. Handcuffing in hospital (a) The parties’ submissions 148. The second applicant complained that her son had been handcuffed to his bed in the hospital round-the-clock without reason, which had exacerbated his suffering. 149. The Government submitted, with reference to the letter from the Ministry of Health of 23 October 2009 (see paragraph 44 above), that the first applicant had only been handcuffed on the occasions he was escorted outside his hospital room and during any visits to him. They therefore considered that this security measure had been applied reasonably. (b) The Court’s assessment 150. The Court notes that the second applicant’s allegation about the handcuffing of her son during his treatment in the Central Hospital from 20 to 26 June 2008 is supported by the photos submitted by her (see paragraph 35 above). 151. As to his stay in Hospital no. 7 from 26 June to 18 July 2008, it appears from the letter of the Ministry of Health of 23 October 2009, cited by the Government, that according to the hospital management the first applicant was handcuffed during that period too. This implies, in the Court’s opinion, handcuffing for most of the time, if not all the time, rather than on an occasional basis, as the Government interpreted it to mean. 152. The Court further observes that although the Chief of the Bakhchysaray Police – to whom the second applicant complained about her son’s handcuffing – dismissed her complaint on 15 July 2008, referring to the first applicant’s imminent release, he did not deny in principle that handcuffing had been applied (see paragraph 50 above). 153. In sum, the Court considers it to be sufficiently established by the evidence at hand that the first applicant was subjected to continuous handcuffing in hospital from 20 June to 18 July 2008. 154. It notes that handcuffing does not normally give rise to an issue under Article 3 of the Convention where the measure has been imposed in connection with lawful detention and does not entail the use of force, or public exposure, exceeding what is reasonably considered necessary. In this regard, it is important to consider, for instance, the danger of the person’s absconding or causing injury or damage (see Raninen v. Finland, 16 December 1997, § 56, Reports 1997 ‑ VIII, and Henaf v. France, no. 65436/01, §§ 50-53, ECHR 2003 ‑ XI). 155. In the present case there is no indication that the first applicant ever behaved violently or attempted to escape. Furthermore, it is not disputed by the parties that he was constantly guarded by police officers while in hospital. Moreover, he suffered from severe immunosuppression caused by his HIV status, as well as a number of concurrent illnesses (see paragraph 43 above). No special medical qualifications were required in order to understand how weak and ill he was. Thus, the prosecutor pursuing criminal charges against the first applicant acknowledged on 24 June 2008 that he was in a “critical health condition” (see paragraph 39 above). Nonetheless, the police still considered it necessary to keep him handcuffed in hospital. The handcuffing continued even after the Chief Doctor of Hospital no. 7 indicated to the Bakhchysaray Police Department on 2 July 2008 that the first applicant was seriously ill and that he needed to be unrestricted in his movements. In total, the first applicant remained handcuffed in hospital for twenty-eight days. 156. The Court considers that this treatment could not be justified by security reasons and, given the first applicant’s poor state of health, is to be considered inhuman and degrading (see Tarariyeva v. Russia, cited above, §§ 110 and 111). 157. There has therefore been a violation of Article 3 of the Convention in this regard too. 5. The State’s obligation to protect the first applicant’s life (a) The second applicant’s submissions 158. The second applicant maintained that her son could have recovered and remained alive had the authorities provided him with proper medical treatment in good time. She noted that, while HIV/Aids remained incurable, there were ways to enhance the life of people with the disease. According to her, her son was deprived of any such possibility owing to the fact that he was detained and was therefore fully dependant on the authorities, which, in her view, showed complete disregard for his life. 159. In addition to her arguments regarding the lack of timely and adequate medical assistance available to the first applicant in detention, the second applicant also referred to his continued detention after the pronouncement of the judgment in his case on 4 July 2008, even though a custodial sentence had not been imposed. She considered that by that measure alone the authorities had put her son in a life-threatening situation. 160. The second applicant underlined that she was not complaining about the unlawfulness of her son’s detention from the standpoint of Article 5 of the Convention, but that she was referring to it as an argument in support of her claim that the authorities had failed to protect her son’s life. 161. She further noted that the first applicant’s behaviour before his placement in detention in December 2007 was of no relevance for the fatal outcome of his disease in August 2008, as he had felt well while he had remained at liberty and had not required any particular medical treatment at that stage. It was in detention that his health sharply deteriorated, but remained untreated, which led to his death. (b) The Government’s submissions 162. The Government denied any responsibility on the part of the respondent State for the first applicant’s death. They imputed it to his own behaviour. Firstly, the Government observed that the first applicant had not himself sought any medical assistance for about two years prior to his placement in detention. Secondly, they emphasised that he had concealed his HIV-positive status from the authorities during his detention. 163. Reiterating the findings of the Ministry of Health’s commission of 20 March 2009, the Government explained the deterioration of the first applicant’s health and the ensuing complications by his delayed application for medical care after having tested HIV-positive, as well as by the severity of the main disease (see paragraph 59 above). (c) The Court’s assessment 164. The Court emphasises that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see McCann and Others v. the United Kingdom, 27 September 1995, §§ 146-147, Series A no. 324). 165. For a positive obligation of a State under Article 2 of the Convention to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see Osman v. the United Kingdom, 28 October 1998, § 116, Reports 1998 ‑ VIII). 166. Turning to the circumstances of the present case, the Court notes that the first applicant died two weeks after his release from detention and a day after his voluntary discharge from a civil hospital following about a month and a half of specialised in-patient treatment (see paragraphs 42, 52 and 55 above). The Court also notes that his death was caused by the HIV infection contracted at least two years prior to his placement in detention, if not earlier, and that he did not disclose his HIV status to the authorities (see paragraphs 7 and 125 above). 167. It is not the Court’s task to rule on matters lying exclusively within the field of expertise of medical specialists and establish whether the first applicant’s disease was treatable and whether, accordingly, his death could have been averted (see, mutatis mutandis, Kozhokar v. Russia, cited above, § 108). Instead, in order to determine whether Article 2 of the Convention has been complied with, the Court will focus on determining whether the domestic authorities did everything which could reasonably have been expected of them under the circumstances to protect the first applicant’s life. 168. Given that the first applicant did not disclose his HIV-positive status, the Court considers that the authorities became aware of it once that diagnosis was clinically established – that is, on 5 June 2008 (see paragraph 125 above). 169. As to the earlier deterioration of his health in the detention facilities and the lack of prompt and adequate medical care available to him there, in respect of which the Court has found a violation of Article 3 of the Convention (see paragraphs 126-139 above), the Court considers that it is not in a position to examine these issues from the standpoint of Article 2 also, for the following reasons. Firstly, it does not appear that at that stage the health of the first applicant had deteriorated to such an extent that it could be considered life-threatening, and, secondly, the administration of the detention facilities were not aware of his HIV status and the inherent risks. 170. At the same time, the Court notes that on 5 June 2008 the Central Hospital’s doctors diagnosed the first applicant with HIV infection at the fourth clinical stage, with several concomitant diseases, such as pneumocystis pneumonia, oropharynx-esophagus candidiosis and an ulcer (see paragraph 22 above). As was later established by forensic medical experts, the diagnosis of neumocystis pneumonia alone warranted the first applicant’s urgent hospitalisation (see paragraph 72 above). 171. There were therefore, from 5 June 2008 onwards, two key factors in place for the State’s positive obligation under Article 2 of the Convention to come into play: firstly, the seriousness of the first applicant’s health condition and, secondly, the knowledge of the authorities about it. 172. Nonetheless, the seriousness of his condition was underestimated and, as a result, his hospitalisation – already urgently required on 5 June 2008 if not earlier – was delayed until 20 June 2008 (see paragraphs 145 ‑ 146 above). 173. The Court has already found a violation of Article 3 of the Convention in that regard (see paragraph 147 above). It further notes that, according to its case-law, a failure on the part of the authorities to monitor a detainee’s condition or provide a detainee with medical care in a life ‑ threatening situation may lead to a breach of Article 2 (see Douglas ‑ Williams v. the United Kingdom (dec.), no. 56413/00, 8 January 2002, and, as a more recent reference, Alimuçaj v. Albania, no. 20134/05, § 130, 7 February 2012). 174. Accordingly, it will take the aforementioned omissions into account in making its conclusions under Article 2 of the Convention too. 175. The Court next notes that the Bakhchysaray Court in charge of the first applicant’s trial turned a blind eye to the extreme gravity of his condition even though this had been acknowledged even by the prosecution. Thus, on 24 June 2008 the prosecutor informed the court that there were no objections to the first applicant’s release and indicated that it was necessary to deal with his request for release promptly on account of his “critical condition”. However, the first applicant continued to be deprived of his liberty, while in Hospital no. 7, even after the pronouncement of the judgment of 4 July 2008, which imposed a fine only and not a custodial sentence. He was released only on 18 July 2008 (see paragraphs 47 and 52 above). 176. There are three particular elements to be considered in relation to the compatibility of an applicant’s health with his continued detention: (a) the medical condition of the detainee, (b) the adequacy of the medical assistance and care provided in detention, and (c) the advisability of maintaining the detention measure in view of the state of health of the applicant (see Mouisel v. France, no. 67263/01, §§ 40-42, ECHR 2002 ‑ IX; Melnik v. Ukraine, cited above, § 94; and Rivière v. France, no. 33834/03, § 63, 11 July 2006). 177. The Court notes that the first applicant’s health was found to be more and more a cause for concern and to be increasingly incompatible with detention (see and compare Dzieciak v. Poland, no. 77766/01, §§ 100-101, 9 December 2008, in which the Court examined, in particular, the issue of the applicant’s continuous detention from the standpoint of the State’s obligation to protect his life). Furthermore, the first applicant posed no danger to the public and his detention appears to have been not only “inadvisable”, but particularly cruel in the circumstances (see, for a converse example, Ceku v. Germany (dec.), no. 41559/06, 13 March 2007). 178. The Court does not lose sight of the fact that at the time in question the first applicant was being held not in a detention facility cell but in a civil hospital where he was undergoing specialised in-patient treatment. 179. On the surface, that might appear to counterbalance the above considerations against his detention. However, the Court considers that this is not so given, in particular, the first applicant’s continuous handcuffing in hospital amounting in itself, under the circumstances, to his inhuman and degrading treatment (see paragraphs 150-157 above). 180. All in all, even if some of the above-mentioned deficiencies would not alone have been sufficient for a finding of inadequate discharge by the State of its positive obligation to protect the first applicant’s health and life, the Court considers that their coexistence and cumulative effect are more than enough in this regard. 181. Whether or not the authorities’ efforts could in principle have averted the fatal outcome in the present case is not decisive for this conclusion. What matters for the Court is whether they did everything reasonably possible in the circumstances, in good faith and in a timely manner, to try to save the first applicant’s life (see, mutatis mutandis, Makharadze and Sikharulidze v. Georgia, cited above, § 74). 182. The Court considers that this is not the case given, in particular, the fact that the first applicant was denied urgent hospitalisation, which he required, for over two weeks; that he remained detained without any justification and while in a critical health condition; and that he was subjected, contrary to doctors’ recommendations, to continuous handcuffing which further exacerbated his health condition. 183. It follows that there has been a violation of Article 2 of the Convention on account of the respondent State’s failure to protect the first applicant’s life. 6. Domestic investigation regarding the first applicant’s medical treatment and death (a) The parties’ submissions 184. The second applicant maintained that there had been no effective domestic investigation into the death of her son. She noted, in particular, that the investigating authorities had never studied the complete medical file of the first applicant from the detention facilities. Nor had they questioned all the medical personnel involved. She also pointed out that the decisions to terminate the investigation had been quashed as premature or superficial on several occasions. At the same time, the shortcomings indicated had never been rectified. She therefore contended that the authorities had sought ways to deny any responsibility for the death of her son instead of making genuine efforts to establish its reasons and punish those responsible. 185. The Government maintained that the domestic investigation into the first applicant’s death had been adequate. (b) The Court’s assessment 186. The Court reiterates that where lives have been lost in circumstances potentially engaging the responsibility of the State, Article 2 of the Convention entails a duty for the State to ensure, by all means at its disposal, an adequate response – judicial or otherwise – so that the legislative and administrative framework set up to protect the right to life is properly implemented and any breaches of that right are repressed and punished (see Öneryıldız v. Turkey [GC], no. 48939/99, § 91, ECHR 2004 ‑ XII). 187. The system required by Article 2 must provide for an independent and impartial official investigation that satisfies certain minimum standards as to effectiveness. The competent authorities must act with exemplary diligence and promptness, and must initiate investigations capable of, firstly, ascertaining the circumstances in which the incident took place and any shortcomings in the operation of the regulatory system and, secondly, identifying the State officials or authorities involved. The requirement of public scrutiny is also relevant in this context (see, mutatis mutandis, Kats and Others v. Ukraine, cited above, § 116). 188. In the present case, the second applicant claimed that the death of her son had resulted from the lack of prompt and adequate medical care provided to him by the ITT and the SIZO personnel, as well as by the doctors of the Central Hospital. 189. The Court notes that the first applicant’s health seriously deteriorated in detention and that the applicants raised the complaints regarding the medical assistance provided to him, at least before the administration of the detention facilities and the management of the Central Hospital, prior to the first applicant’s death. Thereafter, those grievances were further brought to the attention of prosecuting authorities (see paragraphs 33, 45 and 56 above). 190. The Court notes that the investigation was closed and reopened several times and has lasted for over three and a half years (calculated from August 2008 – see paragraphs 55-56). As a result, on 27 December 2010 criminal proceedings were instituted in respect of the Central Hospital’s doctors. There is no information in the case file as regards the progress of these criminal proceedings. As to the liability of the detention facilities’ staff, the investigation was re-opened on 13 March 2012 and is ongoing. 191. The Court cannot overlook the failure of the investigating authorities to obtain the first applicant’s complete medical file from the detention facilities where he had been detained, even though the second applicant insisted on that pertinent measure and, moreover, the Crimea Court of Appeal also found that it was necessary in its ruling of 13 October 2009 (see paragraphs 63 and 66 above). This omission was also noted by the Bakhchysaray Court in its ruling of 13 March 2012. Furthermore, the Bakhchysaray Court pointed out that the SIZO personnel in charge of handling the first applicant’s health-related complaints had not even been identified (see paragraph 81 above). In the Court’s view, the failure to take such a basic investigative step, which would have been expected at the very outset of the investigation had it been genuinely aimed at establishing the truth, discloses its flagrant deficiency. 192. It follows that the respondent State failed to account sufficiently for the deterioration of the first applicant’s health and his subsequent death. 193. This is a serious omission as, apart from concern for respect of the rights inherent in Article 2 of the Convention in each individual case, important public interests are at stake. Notably, the knowledge of the facts and of possible errors committed in the course of medical care are essential to enable the institutions and medical staff concerned to remedy potential deficiencies and prevent similar errors (see Byrzykowski v. Poland, no. 11562/05, § 117, 27 June 2006). 194. There has accordingly been a violation of Article 2 of the Convention under its procedural limb. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RESPECT OF THE SECOND APPLICANT 195. The second applicant additionally complained that, as a result of the denial of prompt and adequate medical care to her son, his subsequent death and the flawed domestic investigation into it, she had endured mental suffering in breach of Article 3 of the Convention. The text of this provision is provided in paragraph 90 above. A. Admissibility 196. The Court considers that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. Neither is it inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 197. The second applicant submitted that, during several months, she had witnessed her child dying in detention, at the age of twenty-seven, without adequate medical care and subjected to permanent handcuffing. She emphasised that, while being aware of the proximate end of his life, she had found herself in a state of complete helplessness and despair, being unable not only to save his life, but even to alleviate his suffering. The second applicant referred to the cynical and indifferent attitude of the domestic authorities, which had manifested itself, in particular, in the continuous detention of her son even after he had been sentenced to a fine only and after the prosecution had acknowledged his critical health condition and had consented to his release. They had showed similar indifference, in her view, by their formalistic approach to the investigation into the circumstances of her son’s death. 198. Maintaining their assertion as to the absence of any breach of Article 3 of the Convention in respect of the first applicant, the Government considered that the second applicant’s complaint under this provision about her own mental suffering was devoid of any grounds. 2. The Court’s assessment 199. The Court has never questioned in its case-law the profound psychological impact of a serious human rights’ violation on the victim’s family members. However, in order for a separate violation of Article 3 of the Convention to be found in respect of the victim’s relatives, there should be special factors in place giving their suffering a dimension and character distinct from emotional distress inevitably stemming from the aforementioned violation itself. Relevant elements include the proximity of the family tie and the way the authorities responded to the relative’s enquiries (see, for example, Çakıcı v. Turkey, no. 23657/94, § 98, 8 July 1999, where this principle was applied in the context of enforced disappearance; Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, § 61, 12 October 2006, where the Court further relied on this principle in consideration of a mother’s complaint about her suffering on account of her five-year old daughter’s detention in another country; and M.P. and Others v. Bulgaria, no. 22457/08, §§ 122-124, 15 November 2011, where the respective complaint concerned suffering of the relatives of an abused child). 200. In the cited cases the Court attached weight to the parent-child bond. It also held that the essence of such a violation lay in the authorities’ reactions and attitudes to the situation when it was brought to their attention. The Court further emphasised that it was especially in respect of this latter factor that a parent could claim directly to be a victim of the authorities’ conduct (ibid.). 201. Another factor leading the Court to find a violation of Article 3 of the Convention, in particular, in respect of relatives of a victim of an enforced disappearance, was the continuous nature of their psychological suffering (see, for example, Imakayeva v. Russia, no. 7615/02, § 166, ECHR 2006‑XIII (extracts); and Luluyev and Others v. Russia, no. 69480/01, § 115, ECHR 2006‑XIII (extracts)). 202. In sum, in such circumstances, Article 3 enjoins the authorities to react to the plight of the victim’s relatives in an appropriate and humane way. On the other hand, in cases of persons who have been killed by the authorities in violation of Article 2, the Court has held that the application of Article 3 is usually not extended to the relatives on account of the instantaneous nature of the incident causing the death in question (see Yasin Ateş v. Turkey, no. 30949/96, § 135, 31 May 2005; Udayeva and Yusupova v. Russia, no. 36542/05, § 82, 21 December 2010; Khashuyeva v. Russia, no. 25553/07, § 154, 19 July 2011; and Inderbiyeva v. Russia, no. 56765/08, § 110, 27 March 2012). 203. Turning to the present case, the Court notes that, as soon as the second applicant became aware of the disease of her son, who was in detention, she took every effort to save his life, appealing to the hospitals, prosecution authorities and courts involved. Nonetheless, the first applicant continued to be detained even after the prosecution had agreed to his release given the gravity of his health condition (see paragraphs 39-40 above). Neither was he released after the verdict had been pronounced in his case with the penalty being limited to a fine and not providing for any custodial sentence (see paragraph 47 above). His mother, the second applicant, could only passively witness this in a state of complete helplessness. Furthermore, her complaints about the underestimation of the seriousness of her son’s condition were disregarded, even though later they were found to be well-grounded (see paragraphs 33, 69 and 74 above). The Court does not lose sight either of the second applicant’s fruitless efforts to get the handcuffing of her son’s lifted during his stay in hospital (see paragraphs 49-50 above). Lastly, the Court observes that even after the death of the first applicant, the authorities manifested an equally unacceptable attitude towards the second applicant, in particular, by ignoring her requests to get access to her son’s medical file (see paragraphs 63, 66 and 191 above). 204. Overall, the Court discerns a number of factors in the present case which, taken together, indicate a breach of the second applicant’s rights under Article 3 of the Convention. Namely, it notes: the parent-child bond between her and the first applicant; the activeness of her efforts to save his life or at least to alleviate his suffering; the cynical, indifferent and cruel attitude towards her appeals demonstrated by the authorities both before the first applicant’s death and during its subsequent investigation; the fact that the second applicant had to witness the slow death of her son without being able to help him in any way; and, lastly, the duration of her inherent suffering for about three months. 205. In the light of the foregoing, the Court considers that the second applicant has been a victim of inhuman treatment. 206. There has therefore been a violation of Article 3 of the Convention in respect of the second applicant. III. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION 207. The applicants complained that the delayed hospitalisation of the first applicant, notwithstanding the interim measure indicated to the Government under Rule 39 of the Rules of Court, had been in breach of Article 34 of the Convention. 208. Article 34 of the Convention reads as follows: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” 209. Rule 39 of the Rules of Court provides: “1. The Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it. 2. Notice of these measures shall be given to the Committee of Ministers. 3. The Chamber may request information from the parties on any matter connected with the implementation of any interim measure it has indicated.” A. The parties’ submissions 210. The second applicant maintained that the authorities had failed to comply with the interim measure. 211. The Government disagreed. B. The Court’s assessment 1. General principles 212. Article 34 of the Convention requires Member States not to hinder in any way the effective exercise of an applicant’s right of access to the Court (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 100, ECHR 2005 ‑ I). 213. The obligation in Article 34 not to interfere with an individual’s effective exercise of the right to submit and pursue a complaint before the Court confers upon an applicant a right of a procedural nature – which can be asserted in Convention proceedings – distinguishable from the substantive rights set out under Section I of the Convention or its Protocols (see, for instance, Shamayev and Others v. Georgia and Russia, no. 36378/02, § 470, ECHR 2005 ‑ III). 214. In Mamatkulov and Askarov (cited above, §§ 104, 125 and 128), the Court held that the failure to comply with an interim measure indicated under Rule 39 of the Rules of Court could give rise to a violation of Article 34 of the Convention. 215. In Paladi v. Moldova ([GC], no. 39806/05, 10 March 2009) the Court stated: “87. The Court reiterates that the obligation laid down in Article 34 in fine requires the Contracting States to refrain not only from exerting pressure on applicants, but also from any act or omission which, by destroying or removing the subject matter of an application, would make it pointless or otherwise prevent the Court from considering it under its normal procedure [...]. It is clear from the purpose of this rule, which is to ensure the effectiveness of the right of individual petition [...], that the intentions or reasons underlying the acts or omissions in question are of little relevance when assessing whether Article 34 of the Convention was complied with ... What matters is whether the situation created as a result of the authorities’ act or omission conforms to Article 34. 88. The same holds true as regards compliance with interim measures as provided for by Rule 39, since such measures are indicated by the Court for the purpose of ensuring the effectiveness of the right of individual petition ... It follows that Article 34 will be breached if the authorities of a Contracting State fail to take all steps which could reasonably have been taken in order to comply with the measure indicated by the Court. 89. Furthermore, the Court would stress that where there is plausibly asserted to be a risk of irreparable damage to the enjoyment by the applicant of one of the core rights under the Convention, the object of an interim measure is to preserve and protect the rights and interests of the parties in a dispute before the Court, pending the final decision. It follows from the very nature of interim measures that a decision on whether they should be indicated in a given case will often have to be made within a very short lapse of time, with a view to preventing imminent potential harm from being done. Consequently, the full facts of the case will often remain undetermined until the Court’s judgment on the merits of the complaint to which the measure is related. It is precisely for the purpose of preserving the Court’s ability to render such a judgment after an effective examination of the complaint that such measures are indicated. Until that time, it may be unavoidable for the Court to indicate interim measures on the basis of facts which, despite making a prima facie case in favour of such measures, are subsequently added to or challenged to the point of calling into question the measures’ justification. For the same reasons, the fact that the damage which an interim measure was designed to prevent subsequently turns out not to have occurred despite a State’s failure to act in full compliance with the interim measure is equally irrelevant for the assessment of whether this State has fulfilled its obligations under Article 34. 90. Consequently, it is not open to a Contracting State to substitute its own judgment for that of the Court in verifying whether or not there existed a real risk of immediate and irreparable damage to an applicant at the time when the interim measure was indicated. Neither is it for the domestic authorities to decide on the time-limits for complying with an interim measure or on the extent to which it should be complied with. It is for the Court to verify compliance with the interim measure, while a State which considers that it is in possession of materials capable of convincing the Court to annul the interim measure should inform the Court accordingly (see, mutatis mutandis, Olaechea Cahuas v. Spain, no. 24668/03, § 70, ECHR 2006-X; Tanrıkulu v. Turkey [GC], no. 23763/94, § 131, ECHR 1999-IV; and Orhan v. Turkey, no. 25656/94, § 409, 18 June 2002). 91. The point of departure for verifying whether the respondent State has complied with the measure is the formulation of the interim measure itself (see, mutatis mutandis, the International Court of Justice’s analysis of the formulation of its interim measure and actual compliance with it in LaGrand, ...). The Court will therefore examine whether the respondent State complied with the letter and the spirit of the interim measure indicated to it. 92. In examining a complaint under Article 34 concerning the alleged failure of a Contracting State to comply with an interim measure, the Court will therefore not re-examine whether its decision to apply interim measures was correct. It is for the respondent Government to demonstrate to the Court that the interim measure was complied with or, in an exceptional case, that there was an objective impediment which prevented compliance and that the Government took all reasonable steps to remove the impediment and to keep the Court informed about the situation.” 2. Application of the above principles to the present case 216. The Court notes that the respondent Government were officially informed of the interim measure under Rule 39 on 17 June 2008 (Tuesday, a working day) by a fax message (see paragraph 29 above). 217. The contents of the interim measure included an instruction to the domestic authorities to transfer the first applicant immediately to a hospital for medical treatment. Despite becoming aware of the interim measure at the latest on the evening of 17 June 2008, it was only on 20 June 2008 that the domestic authorities transferred the first applicant to a hospital. 218. It follows that the interim measure was not complied with for a period of three days. 219. The Court notes that the Government considered this delay reasonable, without referring to any impediments which had prevented their earlier compliance with it. 220. The Court however does not share this view. It explicitly and clearly indicated that the first applicant’s hospitalisation had to be immediate (see paragraph 29 above). It observes that an identically worded interim measure, which it had indicated in the case of Yakovenko v. Ukraine (no. 15825/06, 25 October 2007), had been implemented on the same day (§§ 3 and 22). 221. There appear no objective impediments or difficulties, which might have prevented equally expedient compliance in the present case. 222. The Court emphasises that it did not indicate the necessity of the first applicant’s medical examination, but his “[immediate transfer] to a hospital or other medical institution where he [could] receive the appropriate treatment for his medical condition”. The authorities, however, waited for one day and decided, on 18 June 2008, that no urgent hospitalisation was required. In other words, instead of complying with the indicated interim measure, they decided to re-evaluate its soundness. And, as it was later acknowledged by the domestic authorities themselves, this re-evaluation was erroneous (see paragraphs 74 and 145 above). 223. Accordingly, there was no acceptable explanation for the domestic authorities’ failure to take immediate action to comply with the interim measure (see, and compare with, Grori v. Albania, no. 25336/04, §§ 185 ‑ 195, 7 July 2009). Whether or not the three-day delay in fact caused the damage which the interim measure was designed to prevent, is irrelevant for the Court’s assessment (see Paladi v. Moldova, cited above, § 89). 224. The Court concludes the State failed to meet its obligations under Article 34 of the Convention by not complying promptly with the interim measure indicated by the Court on 17 June 2008. IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 225. The second applicant also complained under Article 6 of the Convention about the alleged unfairness of the first applicant’s trial. 226. The Court notes that the second applicant was not a party to the domestic proceedings complained of. Consequently, she cannot claim to be a victim, within the meaning of the Convention, of a violation of her rights guaranteed therein. The Court therefore rejects this complaint as being incompatible ratione personae with the Convention provisions, pursuant Article 35 §§ 3 (a) and 4 of the Convention. 227. Lastly, the second applicant complained about the material conditions of her son’s detention in the ITT and the SIZO. She raised this complaint for the first time in her reply to the Government’s observations. 228. The Court notes that the first applicant’s detention in the conditions complained of ended on 20 June 2008 (see paragraphs 14 and 34 above), whereas the respective complaint was lodged with the Court after September 2009 (see paragraph 4 above), that is, more than six months later (see Novinskiy v. Russia (dec.), no. 11982/02, 6 December 2007, and Malenko v. Ukraine, no. 18660/03, § 40, 19 February 2009). It follows that this complaint was introduced out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 229. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 230. The second applicant claimed 50,000 euros (EUR) for non-pecuniary damage associated with the violations of Articles 2 and 3 of the Convention in respect of the first applicant. She also claimed EUR 10,000 for non-pecuniary damage for the violation of Article 3 of the Convention in respect of herself. 231. The Government contested these claims as unsubstantiated and excessive. They also submitted that, if the Court decided to award a just satisfaction in respect of some violations regarding the first applicant, the second applicant should not automatically receive that award. According to the Government, it ought to be distributed among all the eligible heirs of the first applicant. 232. Taking into account the nature of the violations found and ruling on an equitable basis, the Court considers it appropriate to allow this claim in full. It thus makes the following awards under this heading: EUR 50,000 in respect of the non-pecuniary damage suffered by the first applicant, to be paid to the second applicant in her capacity as his successor in the proceedings before the Court after his death; and EUR 10,000 in respect of the non-pecuniary damage suffered by the second applicant herself, to be paid to her in her personal capacity. B. Costs and expenses 1. Legal fees 233. The second applicant also claimed 10,000 Ukrainian hryvnias (UAH) for legal fees (equal to EUR 900 at the time when her claim was lodged). In support of this claim, she submitted a contract of legal services rendered in the proceedings before the Court dated 5 June 2008, according to which she was to pay the lawyer, Mr Lesovoy, UAH 10,000. That contract contained a handwritten receipt note by Mr Lesovoy according to which he had received the stipulated amount from the second applicant. 234. The Government considered that the second applicant had failed to demonstrate that the costs claimed were reasonable and had actually been incurred. 235. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Bottazzi v. Italy [GC], no. 34884/97, § 30, ECHR 1999 ‑ V). 236. It notes that in the present case the second applicant was bound by and complied with her contractual obligations vis-à-vis Mr Lesovoy, who represented her son and herself in the proceedings before the Court. 237. The Court therefore considers that the aforementioned requirements have been met in this case and awards this claim in full. 2. Postal expenses 238. The second applicant also claimed UAH 262.69 (an equivalent of about EUR 25) for postal expenses. In support of her claim she submitted eight postal receipts in respect of her correspondence with the Court. 239. The Government submitted that the second applicant had failed to support her claim with documents. 240. Regard being had to the documents in its possession, the Court considers it reasonable to grant this claim in full and to award the second applicant EUR 25 under this heading. C. Default interest 241. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | In this case, the Court indicated to the Ukrainian Government, under Rule 39 of the Rules of Court, to immediately transfer the first applicant to hospital for appropriate treatment. |
510 | From the ReesChristine Goodwin | ii. Relevant domestic law and practice A. Names 26. Under English law, a person is entitled to adopt such first names or surname as he or she wishes. Such names are valid for purposes of identification and may be used in passports, driving licences, medical and insurance cards, etc. The new names are also entered on the electoral roll. B. Marriage and definition of gender in domestic law 27. Under English law, marriage is defined as the voluntary union between a man and a woman. In the case of Corbett v. Corbett ([1971] Probate Reports 83), Mr Justice Ormrod ruled that sex for that purpose is to be determined by the application of chromosomal, gonadal and genital tests where these are congruent and without regard to any surgical intervention. This use of biological criteria to determine sex was approved by the Court of Appeal in R. v. Tan ([1983] Queen’s Bench Reports 1053) and given more general application, the court holding that a person born male had been correctly convicted under a statute penalising men who live on the earnings of prostitution, notwithstanding the fact that the accused had undergone gender reassignment therapy. Under section 11(b) of the Matrimonial Causes Act 1973 any marriage where the parties are not respectively male and female is void. The test applied as to the sex of the partners to a marriage is that laid down in the above-mentioned case of Corbett v. Corbett. According to that same decision a marriage between a male-to-female transsexual and a man might also be avoided on the basis that the transsexual was incapable of consummating the marriage in the context of ordinary and complete sexual intercourse ( obiter per Mr Justice Ormrod). C. Birth certificates 28. Registration of births is governed by the Births and Deaths Registration Act 1953 (“the 1953 Act”). Section 1(1) of that Act requires that the birth of every child be registered by the Registrar of Births and Deaths for the area in which the child is born. An entry is regarded as a record of the facts at the time of birth. A birth certificate accordingly constitutes a document revealing not current identity but historical facts. 29. The sex of the child must be entered on the birth certificate. The criteria for determining the sex of a child at birth are not defined in the Act. The practice of the Registrar is to use exclusively the biological criteria (chromosomal, gonadal and genital) as laid down by Mr Justice Ormrod in the above-mentioned case of Corbett v. Corbett. 30. The 1953 Act provides for the correction by the Registrar of clerical errors or factual errors. The official position is that an amendment may only be made if the error occurred when the birth was registered. The fact that it may become evident later in a person’s life that his or her “psychological” sex is in conflict with the biological criteria is not considered to imply that the initial entry at birth was a factual error. Only in cases where the apparent and genital sex of a child was wrongly identified or where the biological criteria were not congruent can a change in the initial entry be made. It is necessary for that purpose to adduce medical evidence that the initial entry was incorrect. No error is accepted to exist in the birth entry of a person who undergoes medical and surgical treatment to enable that person to assume the role of the opposite sex. 31. The Government point out that the use of a birth certificate for identification purposes is discouraged by the Registrar General, and for a number of years birth certificates have contained a warning that they are not evidence of the identity of the person presenting it. However, it is a matter for individuals whether to follow this recommendation. D. Social security, employment and pensions 32. A transsexual continues to be recorded for social security, national insurance and employment purposes as being of the sex recorded at birth. A male-to-female transsexual will accordingly only be entitled to a State pension at the State retirement age of 65 and not the age of 60 which is applicable to women. E. Other relevant materials 33. In its judgment of 30 April 1996, in the case of P. v. S. and Cornwall County Council, the European Court of Justice (ECJ) held that discrimination arising from gender reassignment constituted discrimination on grounds of sex and accordingly Article 5 § 1 of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions precluded dismissal of a transsexual for a reason related to a gender reassignment. The ECJ held, rejecting the argument of the United Kingdom Government that the employer would also have dismissed P. if P. had previously been a woman and had undergone an operation to become a man, that “... Where a person is dismissed on the ground that he or she intends to undergo or has undergone gender reassignment, he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment. To tolerate such discrimination would be tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled and which the Court has a duty to safeguard.” (paragraphs 21–22) 34. The ruling of the ECJ was applied by the Employment Appeal Tribunal in a decision handed down on 27 June 1997 ( Chessington World of Adventures Ltd v. Reed [1997] 1 Industrial Law Reports). Liberty’s observations 35. In their written observations on the legal recognition of transsexuals in comparative law (see paragraph 6 above), Liberty suggested that over the last decade there has been an unmistakably clear trend in the member States of the Council of Europe towards giving full legal recognition to gender reassignment. According to the study carried out by Liberty, the majority of member States now make provision for such recognition. For example, out of thirty-seven countries analysed, only four (including the United Kingdom) do not permit a change to be made to a person’s birth certificate in one form or another to reflect the re-assigned sex of that person. PROCEEDINGS BEFORE THE COMMISSION 36. Miss Sheffield applied to the Commission on 4 August 1993. She alleged that the refusal of the respondent State to give legal recognition to her status as a woman following gender reassignment surgery gave rise to violations of Articles 8, 12 and 14 of the Convention and that she had no effective remedy in respect of her complaints, in breach of Article 13. She also complained that she was coerced by underhand methods into divorcing and is prevented from having contact with her daughter. The Commission declared the application (no. 22985/93) admissible on 19 January 1996 with the exception of her complaint regarding her divorce and contact with her daughter which had been declared inadmissible on 4 September 1995 for failure to comply with the six-month time-limit under the Convention. In its report of 21 January 1997 (Article 31), it expressed the opinion that there had been a violation of Article 8 of the Convention (fifteen votes to one); that the applicant’s complaint under Article 12 of the Convention did not give rise to any separate issue (nine votes to seven); that the applicant’s complaint under Article 14 of the Convention did not give rise to any separate issue (unanimously); and that there had been no violation of Article 13 of the Convention (unanimously). 37. In her application to the Commission lodged on 4 August 1993, Miss Horsham alleged that the refusal of the respondent State to give legal recognition to her status as a woman following gender reassignment surgery gave rise to violations of Articles 3, 8, 12, 13 and 14 of the Convention as well as of Article 3 of Protocol No. 4 in relation to alleged constructive expulsion from the respondent State. The Commission declared the application (no. 23390/94) admissible on 19 January 1996 with the exception of her complaints under Article 3 of the Convention and Article 3 of Protocol No. 4 which had been declared inadmissible on 4 September 1995. In its report of 21 January 1997 (Article 31), it expressed the opinion that there had been a violation of Article 8 of the Convention (fifteen votes to one); that her complaint under Article 12 of the Convention did not give rise to any separate issue (ten votes to six); that the applicant’s complaint under Article 14 of the Convention did not give rise to any separate issue (unanimously); and that there had been no violation of Article 13 of the Convention (unanimously). 38. The full text of the Commission’s opinions in the two cases and of the dissenting opinions contained in the reports is reproduced as an annex to this judgment [3]. FINAL SUBMISSIONS TO THE COURT 39. The applicants in their joint memorial requested the Court to decide and declare that the facts of the case disclose a breach of their rights under Article 8 of the Convention and/or Article 14 in conjunction with Article 8, and to award them just satisfaction under Article 50. The Government requested the Court in their memorial to decide and declare that the facts disclose no breach of the applicants’ rights. AS TO THE LAW I. Alleged violation of Article 8 of the Convention 40. The applicants complained that the failure of the respondent State to recognise in law that they were of the female sex constituted an interference with their rights to respect for their private lives guaranteed under Article 8 of the Convention, which provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 41. The Commission accepted the applicants’ submissions. The Government contended that there had been no violation of Article 8 in the circumstances of the case. 1. Arguments of those appearing before the Court (a) The applicants 42. The applicants stated that under English law they continue to be regarded as being of the male sex and to suffer prejudice on that account. The failure to give legal recognition to their new gender has serious consequences for the way in which they conducted their lives, compelling them to identify themselves frequently in public contexts in a gender which they had renounced. This was a matter of profound hurt and distress and an affront to their dignity. Miss Sheffield’s experiences (see paragraphs 16–20 above) provided a convincing account of the extreme disadvantages which beset post-operative transsexuals and of how the current legal situation operated to the detriment of their privacy and even exposed them to the risk of penalties for the offence of perjury. For her part, Miss Horsham claimed that she had had to abandon her residence in the United Kingdom in order to avoid the difficulties which she encountered there as a transsexual. 43. They contended that the law of the respondent State continued to be based on a restrictive and purely biological approach to the determination of an individual’s gender (see paragraphs 27 and 29 above). In their view, the conclusive nature of that approach should now be reviewed in light of recent medical research findings which demonstrated convincingly that the sex of a person’s brain is also to be considered one of the decisive indices of his or her gender. According to Professor L.J.G. Gooren, a distinguished and recognised authority on this subject, the brain’s ability to differentiate between the male and female sex occurs when an individual is between 3 and 4 years old. A problem arises if the brain differentiates sex in a manner which is contradictory to the nature of the external genitalia. This dysfunction explains the feelings which transsexuals like the applicants have about their bodies. 44. The continued insistence in English law on the use of purely biological criteria for the determination of gender meant that they were unable to have the register of births amended to record their post-operative gender. The applicants challenged the official view that it was impossible to amend or update the facts contained in the register save for cases of clerical or factual error. They pointed to instances where the register had been amended to take account of a person’s change of sex and reasoned that if it were possible to update the register in cases of adoption it should also be feasible to do so in respect of gender reassignment. 45. The applicants recalled that the Court in its Rees v. the United Kingdom judgment of 17 October 1986 (Series A no. 106, pp. 18–19, § 47) had stated that the respondent State should keep the need for appropriate legal measures in the area of transsexualism under review having regard in particular to scientific and societal developments. The Court reiterated that view in its Cossey v. the United Kingdom judgment of 27 September 1990 (Series A no. 184, p. 17, § 41). Notwithstanding new medical findings on the cause of transsexualism (see paragraph 43 above) and the increased legal recognition of a transsexual’s post-operative gender at the level of the European Union and in the member States of the Council of Europe (see paragraphs 33–35 above), the respondent State has still not reviewed its domestic law in this area. (b) The Government 46. The Government replied that Article 8 of the Convention does not require a Contracting State to recognise generally for legal purposes the new sexual identity of an individual who has undergone gender reassignment surgery. With reference to the above-mentioned Rees and Cossey judgments, they pleaded that a Contracting State properly enjoys a wide margin of appreciation in respect of its positive obligations under Article 8, especially so in the area of transsexualism where there is no sufficiently broad consensus within the member States on how to address the complexity of the legal, ethical, scientific and social issues which arise. They argued that Professor Gooren’s research findings on the notion of a person’s psychological sex (see paragraph 43 above) cannot be considered conclusive of the issue and required further verification (see, for example, S.M. Breedlove’s article in Nature, vol. 378, p. 15, 2 November 1995); nor was the applicants’ reliance on the European Court of Justice’s ruling in P. v. S. and Cornwall County Council of support to their case that a European-wide consensus existed on the need to give legal recognition to the situation of transsexuals. That case was not concerned with the legal status of transsexuals. Moreover, much of the comparative material submitted by Liberty had already been considered by the Court at the time of its judgment in the Rees case. 47. The Government further submitted that the applicants had not adduced any evidence of having suffered any substantial practical detriment on a day-to-day basis which would suggest that the authorities had exceeded their margin of appreciation. The applicants are only obliged to reveal their pre-operative gender on rare occasions and only when it is justified to do so. Further, to allow the applicants’ birth certificates to be altered so as to provide them with official proof of their new sexual status would undermine the function of the register of births as a historical record of fact; nor could the civil liberties implications of allowing a change of sex to be entered on the register be discounted. 48. In view of these considerations, the Government maintained that any inconvenience which the applicants may suffer is not such as to upset the fair balance which must be struck between the general interests of the community and their individual interests. (c) The Commission 49. The Commission considered that the applicants, even if they do not suffer daily humiliation and embarrassment, are nevertheless subject to a real and continuous risk of intrusive and distressing enquiries and to an obligation to make embarrassing disclosures. Miss Sheffield’s case showed that this risk was not theoretical. 50. The Commission had regard in particular to the clear trend in European legal systems towards legal acknowledgment of gender reassignment. It also found it significant that the medical profession has reached a consensus that transsexualism is an identifiable medical condition, gender dysphoria, in respect of which gender reassignment treatment is ethically permissible and can be recommended for improving the quality of life and, moreover, is State-funded in certain member States. In view of these developments, the Government’s concerns about the difficulties in assimilating the phenomenon of transsexualism readily into existing legal frameworks cannot be of decisive weight. In the view of the Commission, appropriate ways could be found to provide for transsexuals to be given prospective legal recognition of their gender reassignment without destroying the historical nature of the register of births. The Commission considered that the concerns put forward by the Government, even having regard to their margin of appreciation in this area, were not sufficient to outweigh the interests of the applicants and for that reason there had been a violation of Article 8 of the Convention. 2. The Court’s assessment 51. The Court observes that it is common ground that the applicants’ complaints fall to be considered from the standpoint of whether or not the respondent State has failed to comply with a positive obligation to ensure respect for their rights to respect for their private lives. It has not been contended that the failure of the authorities to afford them recognition for legal purposes, in particular by altering the register of births to reflect their new gender status or issuing them with birth certificates whose contents and nature differ from the entries made at the time of their birth, constitutes an “interference”. Accordingly, as in the above-mentioned Rees and Cossey cases, the issue raised by the applicants before the Court is not that the respondent State should abstain from acting to their detriment but that it has failed to take positive steps to modify a system which they claim operates to their prejudice. The Court will therefore proceed on that basis. 52. The Court reiterates that the notion of “respect” is not clear-cut, especially as far as the positive obligations inherent in that concept are concerned: having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion’s requirements will vary considerably from case to case. In determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which balance is inherent in the whole of the Convention (see the above-mentioned Rees judgment, p. 15, § 37; and the above-mentioned Cossey judgment, p. 15, § 37). 53. It is to be noted that in applying the above principle in both the Rees and Cossey cases, the Court concluded that the same respondent State was under no positive obligation to modify its system of birth registration in order to allow those applicants the right to have the register of births updated or annotated to record their new sexual identities or to provide them with a copy birth certificate or a short-form certificate excluding any reference to sex at all or sex at the time of birth. Although the applicants in the instant case have formulated their complaints in terms which are wider than those invoked by Mr Rees and Miss Cossey since they contend that their rights under Article 8 of the Convention have been violated on account of the failure of the respondent State to recognise for legal purposes generally their post-operative gender, it is nonetheless the case that the essence of their complaints concerns the continuing insistence by the authorities on the determination of gender according to biological criteria alone and the immutability of the gender information once it is entered on the register of births. 54. The Government have relied in continuing defence of the current system of births registration on the general interest grounds which were accepted by the Court in its Rees and Cossey judgments as justification for preserving the register of births as a historical record of facts subject neither to alteration so as to record an entrant’s change of sex nor to abridgement in the form of an extract containing no indication of the bearer’s registered gender (see, in particular, the Cossey judgment, pp. 15–16, §§ 38 and 39), as well as to the wide margin of appreciation which they claim in respect of the treatment to be accorded in law to post-operative transsexuals. It is the applicants’ contention that that defence is no longer tenable having regard to significant scientific and legal developments and to the clear detriment which the maintenance in force of the current system has on their personal situation, factors which, in their view, tilt the balance away from public-interest considerations in favour of the need to take action to safeguard their own individual interests. 55. The Court notes that in its Cossey judgment it considered that there had been no noteworthy scientific developments in the area of transsexualism in the period since the date of adoption of its Rees judgment which would compel it to depart from the decision reached in the latter case. This view was confirmed subsequently in the Court’s B. v. France judgment of 25 March 1992 (Series A no. 232-C) in which it observed that there still remained uncertainty as to the essential nature of transsexualism and that the legitimacy of surgical intervention in such cases is sometimes questioned (p. 49, § 48). As to legal developments occurring since the date of the Cossey judgment, the Court in the B. case stated that there was, as yet, no sufficiently broad consensus among the member States on how to deal with a range of complex legal matters resulting from a change of sex. 56. In the view of the Court, the applicants have not shown that since the date of adoption of its Cossey judgment in 1990 there have been any findings in the area of medical science which settle conclusively the doubts concerning the causes of the condition of transsexualism. While Professor Gooren’s research into the role of the brain in conditioning transsexualism may be seen as an important contribution to the debate in this area (see paragraph 43 above), it cannot be said that his views enjoy the universal support of the medico-scientific profession. Accordingly, the non-acceptance by the authorities of the respondent State for the time being of the sex of the brain as a crucial determinant of gender cannot be criticised as being unreasonable. The Court would add that, as at the time of adoption of the Cossey judgment, it still remains established that gender reassignment surgery does not result in the acquisition of all the biological characteristics of the other sex despite the increased scientific advances in the handling of gender reassignment procedures. 57. As to legal developments in this area, the Court has examined the comparative study which has been submitted by Liberty (see paragraph 35 above). However, the Court is not fully satisfied that the legislative trends outlined by amicus suffice to establish the existence of any common European approach to the problems created by the recognition in law of post-operative gender status. In particular, the survey does not indicate that there is as yet any common approach as to how to address the repercussions which the legal recognition of a change of sex may entail for other areas of law such as marriage, filiation, privacy or data protection, or the circumstances in which a transsexual may be compelled by law to reveal his or her pre-operative gender. 58. The Court is accordingly not persuaded that it should depart from its Rees and Cossey decisions and conclude that on the basis of scientific and legal developments alone the respondent State can no longer rely on a margin of appreciation to defend its continuing refusal to recognise in law a transsexual’s post-operative gender. For the Court, it continues to be the case that transsexualism raises complex scientific, legal, moral and social issues, in respect of which there is no generally shared approach among the Contracting States (see the X, Y and Z v. the United Kingdom judgment of 22 April 1997, Reports of Judgments and Decisions 1997-II, p. 635, § 52). 59. Nor is the Court persuaded that the applicants’ case histories demonstrate that the failure of the authorities to recognise their new gender gives rise to detriment of sufficient seriousness as to override the respondent State’s margin of appreciation in this area (cf. the above-mentioned B. v. France judgment). It cannot be denied that the incidents alluded to by Miss Sheffield were a source of embarrassment and distress to her and that Miss Horsham, if she were to return to the United Kingdom, would equally run the risk of having on occasion to identify herself in her pre-operative gender. At the same time, it must be acknowledged that an individual may with justification be required on occasion to provide proof of gender as well as medical history. This is certainly the case of life assurance contracts which are uberrimae fidei. It may possibly be true of motor insurance where the insurer may need to have regard to the sex of the driver in order to make an actuarial assessment of the risk. Furthermore, it would appear appropriate for a court to run a check on whether a person has a criminal record, either under his or her present name or former name, before accepting that person as a surety for a defendant in criminal proceedings. However, quite apart from these considerations the situations in which the applicants may be required to disclose their pre-operative gender do not occur with a degree of frequency which could be said to impinge to a disproportionate extent on their right to respect for their private lives. The Court observes also that the respondent State has endeavoured to some extent to minimise intrusive enquiries as to their gender status by allowing transsexuals to be issued with driving licences, passports and other types of official documents in their new name and gender, and that the use of birth certificates as a means of identification is officially discouraged (see paragraphs 26 and 31 above). 60. Having reached those conclusions, the Court cannot but note that despite its statements in the Rees and Cossey cases on the importance of keeping the need for appropriate legal measures in this area under review having regard in particular to scientific and societal developments (see, respectively, pp. 18–19, § 47, and p. 41, § 42), it would appear that the respondent State has not taken any steps to do so. The fact that a transsexual is able to record his or her new sexual identity on a driving licence or passport or to change a first name are not innovative facilities. They obtained even at the time of the Rees case. Even if there have been no significant scientific developments since the date of the Cossey judgment which make it possible to reach a firm conclusion on the aetiology of transsexualism, it is nevertheless the case that there is an increased social acceptance of transsexualism and an increased recognition of the problems which post-operative transsexuals encounter. Even if it finds no breach of Article 8 in this case, the Court reiterates that this area needs to be kept under review by Contracting States. 61. For the above reasons, the Court considers that the applicants have not established that the respondent State has a positive obligation under Article 8 of the Convention to recognise in law their post-operative gender. Accordingly, there is no breach of that provision in the instant case. II. Alleged violation of Article 12 of the ConventiON 62. The applicants submitted that any marriage which a male-to-female post-operative transsexual contracted with a man would be void under English law having regard to the fact that a male-to-female transsexual is still considered for legal purposes as male. While they addressed the prejudice which they suffered in respect of their right to marry in the context of their more general complaint under Article 8 of the Convention, before the Commission they relied on Article 12 of the Convention, which provides: “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.” 63. Miss Horsham stated in particular that she intended to marry her male partner in the Netherlands, where the validity of her marriage would be recognised. However, she feared that she would be unable to settle subsequently in the United Kingdom since it was doubtful whether the English courts would recognise the validity of the marriage. This situation meant that she would have to live her married life in forced exile outside the United Kingdom. 64. The Government contended that there was no breach of the applicants’ rights under Article 12 of the Convention and requested the Court to endorse this view on the basis of the reasoning which led it to conclude in the above-mentioned Rees and Cossey cases that there had been no breach of that provision. As to Miss Horsham’s situation, the Government further submitted that she had never sought to test the validity of her proposed marriage, which might well be recognised by the English courts in application of the rules of private international law. She must be considered to have failed to exhaust domestic remedies in respect of this complaint. 65. The Commission found that the applicants’ allegations gave rise to no separate issue having regard to the substance of their complaints under Article 8 of the Convention. 66. The Court recalls that the right to marry guaranteed by Article 12 refers to the traditional marriage between persons of opposite biological sex. This appears also from the wording of the Article which makes it clear that Article 12 is mainly concerned to protect marriage as the basis of the family. Furthermore, Article 12 lays down that the exercise of this right shall be subject to the national laws of the Contracting States. The limitations thereby introduced must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired. However, the legal impediment in the United Kingdom on the marriage of persons who are not of the opposite biological sex cannot be said to have an effect of this kind (see the above-mentioned Rees judgment, p. 19, §§ 49 and 50). 67. The Court recalls further that in its Cossey judgment it found that the attachment to the traditional concept of marriage which underpins Article 12 of the Convention provides sufficient reason for the continued adoption by the respondent State of biological criteria for determining a person’s sex for the purposes of marriage, this being a matter encompassed within the power of the Contracting States to regulate by national law the exercise of the right to marry (p. 18, § 46). 68. In light of the above considerations, the Court finds that the inability of either applicant to contract a valid marriage under the domestic law of the respondent State having regard to the conditions imposed by the Matrimonial Causes Act 1973 (see paragraph 27 above) cannot be said to constitute a violation of Article 12 of the Convention. 69. The Court is not persuaded that Miss Horsham’s complaint raises an issue under Article 12 which engages the responsibility of the respondent State since it relates to the recognition by that State of a post-operative transsexual’s foreign marriage rather than the law governing the right to marry of individuals within its jurisdiction. In any event, this applicant has not provided any evidence that she intends to set up her matrimonial home in the United Kingdom and to enjoy married life there. Furthermore, it cannot be said with certainty what the outcome would be were the validity of her marriage to be tested in the English courts. 70. The Court concludes that there has been no violation of Article 12. III. Alleged violation of Article 14 of the Convention in conjunction with Article 8 71. The applicants maintained that they were victims of a breach of Article 14 of the Convention in conjunction with Article 8. Article 14 provides: “ The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status .” 72. The applicants contended that transsexuals alone are compelled to describe themselves frequently and in public by a gender which does not accord with their external appearances. The discrimination which they suffer compared with either other members of society or with other women who have not undergone gender reassignment surgery is intrusive and a cause of profound embarrassment and distress. Given that the law continues to treat them as being of the male sex, they argued that they are victims of sex discrimination having regard to the detriment which they, unlike men, suffer through having to disclose their pre-operative gender. They maintained that their disadvantaged position in law impinges on intimate aspects of their private lives and in a disproportionate manner which cannot be justified by an appeal to the respondent State’s margin of appreciation under Article 14 of the Convention. 73. The Government submitted that the applicants received the same treatment in law as any other person who has undergone gender reassignment surgery. In any event, any difference in treatment which the applicants may experience as compared to other members of the public could be justified on the basis of the reasons which they had advanced by way of defence to the applicants’ complaints under Article 8 of the Convention. 74. The Commission found that the applicants’ complaints did not give rise to any separate issue having regard to the conclusions which it reached in respect of their allegations under Articles 8 and 12 of the Convention. 75. The Court reiterates that Article 14 affords protection against discrimination in the enjoyment of the rights and freedoms safeguarded by the other substantive provisions of the Convention. However, not every difference in treatment will amount to a violation of this Article. Instead, it must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment, and that there is no reasonable or objective justification for this distinction. Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law (see the Stubbings and Others v. the United Kingdom judgment of 22 October 1996, Reports 1996-IV, p. 1507, § 72). 76. The Court notes that it has already concluded that the respondent State has not overstepped its margin of appreciation in not according legal recognition to a transsexual’s post-operative gender. In reaching that conclusion, it was satisfied that a fair balance continues to be struck between the need to safeguard the interests of transsexuals such as the applicants and the interests of the community in general and that the situations in which the applicants may be required to disclose their pre-operative gender do not occur with a degree of frequency which could be said to impinge to a disproportionate extent on their right to respect for their private lives. Those considerations, which are equally encompassed in the notion of “reasonable and objective justification” for the purposes of Article 14 of the Convention (see the above-mentioned Cossey judgment, p. 17, § 41), must also be seen as justifying the difference in treatment which the applicants experience irrespective of the reference group relied on. 77. The Court concludes therefore that no violation has been established under this head of complaint. IV. Alleged violation of Article 13 of the Convention 78. The applicants stated in their memorial and at the hearing that they did not wish to pursue their complaints under Article 13. 79. The Commission concluded that there was no violation of this provision and the Government endorsed this conclusion in their memorial. Neither the Government nor the Delegate of the Commission addressed the complaints at the hearing. 80. Having regard to the above considerations, the Court does not consider it necessary to examine this head of complaint. | The Court held that there had been no violation of Articles 8 (right to respect of private and family life), 12 (right to marry and found a family) and 14 (prohibition of discrimination) of the Convention. However, it reaffirmed “that the area need[ed] to be kept under permanent review by the Contracting States”, in the context of “increased social acceptance of the phenomenon and increased recognition of the problems which post-operative transsexuals encounter[ed]” (§ 60 of the judgment). |
451 | Treatment of disabled prisoners | THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 109. The applicant complained that, contrary to Article 3 of the Convention, the care and conditions of his detention from 7 January 2001 to 28 February 2001, from 1 September 2003 to 26 May 2004 and from 2 September 2005 to 18 June 2008 had been incompatible with his special needs, in view of his paraplegia. That provision reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 1. Government ’ s preliminary objections 110. The Government raised two preliminary objections, arguing that the applicant had not exhausted the domestic remedies available to him and that the part of his application which concerned his detention before September 2005 was inadmissible for non-compliance with the six-month rule within the meaning of Article 35 § 1 of the Convention. (a) Exhaustion of domestic remedies (i ) The Government 111. The Government acknowledged that before lodging an application with the Court, the applicant had lodged a number of complaints with various State authorities about the quality of medical care provided to him in prison. They argued, however, that the applicant should also have brought a related civil action seeking compensation for the infringement of his personal rights, namely his dignity and health, under Articles 23 and 24 of the Civil Code, read in conjunction with Article 448 of that Code. 112. Referring to the Court ’ s inadmissibility decisions in the cases of Łatak v. Poland (dec., no. 52070/08, 12 October 2010 ), and Nocha v. Poland (dec., no. 21116/09, 27 September 2011 ), the Government noted that after the applicant ’ s release from prison on 18 June 2008 – when the situation giving rise to the alleged breach of Article 3 of the Convention had no longer existed – the above - mentioned civil action would have constituted an effective remedy so long as it had been lodged within the three -year statute of limitation. 113. Consequently, the Government invited the Court to reject the application for non ‑ exhaustion of domestic remedies, pursuant to Article 35 § 1 of the Convention. (ii ) The applicant 114. The applicant did not comment on the Government ’ s preliminary objection. ( iii ) The Court 115. The rule of exhaustion of domestic remedies contained in Article 35 § 1 of the Convention requires that normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness. In the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non ‑ exhaustion to satisfy the Court that the remedy was an effective one available in theory and practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success. However, once this burden has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement. In addition, Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (see, among other authorities, Akdivar and Others v. Turkey, cited above, §§ 66-69; Orchowski, cited above, §§ 105-106; and Norbert Sikorski, cited above, § 110). 116. The Court observes that, in principle, the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court (see Orchowski, cited above, § 109, and Demopoulos and Others v. Turkey [GC], (dec.) no. 46113/99, ECHR 2010-..., § 87). However, as the Court has held on many occasions, that rule is subject to exceptions which may be justified by the particular circumstances of each case (see Demopoulos and Others, ibid., with further references). Among such exceptions there are certainly situations where, following a pilot judgment on the merits in which the Court has found a systemic violation of the Convention, the respondent State makes available a remedy to redress at domestic level grievances of similarly situated persons (see Demopoulos and Others, cited above, §§ 87-88; Broniowski v. Poland (merits) [GC], no. 31443/96, §§ 191 ‑ 93, ECHR 2004-V; and Nagovitsyn and Nalgiyev v. Russia (dec.), nos. 27451/09 and 60650/09, §§ 25 ‑ 26 and 33 ‑ 44, 23 September 2010). 117. Two pilot judgments on the merits concerning the issue of the living conditions in Polish detention facilities were adopted on 13 October 2009 in the cases of Orchowski (cited above) and Norbert Sikorski ( Norbert Sikorski v. Poland, no. 17599/05, 2 2 October 2009 ). The Court held in these judgments that overcrowding in Polish detention facilities had been, at the relevant time, of a structural nature what undermined the effectiveness of any domestic remedies available, making them theoretical and illusory and incapable of providing redress in respect of the applicant ’ s complaint ( ibid. § 111). The Court, nevertheless, indicated that where the alleged violation no longer continued and could not, therefore, be eliminated with retrospective effect, the only means of redress was pecuniary compensation. In such situations, regard being had to the principle of subsidiarity, it could not be excluded that applicants who complained of degrading treatment because of the conditions of their detention, might be required to first avail themselves of the civil action relied on by the Government (ibid. § 109 ). 118. More recently, in its inadmissibility decisions in the cases of Łatak (cited above) and Nocha (cited above), which were relied on by the Government, the Court has expressly confirmed that in the subsequent applications concerning conditions of detention filed with the Court which have not yet been declared admissible it is appropriate to assess the adequacy of the remedy relied on by the Government in the light of the current situation, namely at the time of the Court ’ s examination of the case. In so doing, the Court had regard to the fact that, on the date of the adoption of its decision in the Łatak case, there were 271 cases pending before it where the applicants had raised complaints that were similar in substance, alleging a violation of Article 3 because at various times and for various periods they had been adversely affected by the same structural problem, having been detained in overcrowded, insanitary cells ( see Łatak, cited above, § 84 ). 119. Having found that a civil action under Article 24 taken in conjunction with Article 448 of the Civil Code could be considered an “effective remedy” for the purposes of Article 35 § 1 of the Convention as from 17 March 2010, and having regard to the three ‑ year limitation period for bringing such an action, the Court held that essentially in all cases in which, in June 2008, the alleged violation had either been remedied by placing the applicant in Convention-compliant conditions or had ended ipso facto because the applicant had been released, the applicants concerned were required to bring a civil action for the infringement of their personal rights and for compensation (ibid. § 85 ). 120. The Court affirms that in the specific context of applications following the Orchowski pilot judgment and arising from the problem of overcrowding in Polish prisons and remand centres, considered by the Court to have been of a structural nature from 2000 until at least mid-2008 (see Orchowski, cited above, § 147), an applicant who lodged his application with the Court at the time when a civil action under Article 24 taken in conjunction with Article 448 of the Civil Code could not be considered an “effective remedy” for the purpose of Article 35 of the Convention, that is prior to 17 March 2010 (see Łatak, cited above, § 85 and paragraph 118 above), cannot, in principle, be required to avail himself of this remedy if, at the time when the Court was deciding his case, the civil action in question is time ‑ barred (see Grzywaczewski v. Poland, no. 18364/06, § 66, 31 May 2012; Musiałek and Baczyński v. Poland, no. 32798/02, §§ 113 -14, 2 6 July 2011; and Mirosław Zieliński v. Poland, no. 3390/05, § 46, 20 September 2011; and, conversely, Nocha inadmissibility decision, cited above and Pustelnik v. Poland (dec.), no. 37775/09, 23 October 2012 ). 121. In addition, the Court has also ruled on the merits in two cases against Poland in which the applicants were prisoners diagnosed with serious health disorders who, like the applicant in the instant case, complained that the inadequate medical care combined with prison overcrowding and poor living conditions had caused them pain and suffering during their detention (see Grzywaczewski, cited above, and Musiałek, cited above, § 111 ‑ 12). It was held in those judgments that only a remedy capable of redressing the applicant ’ s complaint in its entirety, and not merely its selected aspects, could realistically redress his situation (see Grzywaczewski, cited above, § § 63-69, and Musiałek, cited above, § 111 ‑ 12; compare with Sławomir Musiał v. Poland, no. 28300/06, § 80, 20 January 2009 ). 122. Against this background, the Court will address the preliminary objection in the present case as formulated by the Government and will examine whether the applicant, in addition to the remedies he had used, should have also availed himself of the civil remedy in question before lodging his application with the Court, or at a later stage. 123. It must be observed at the outset that the Article 3 complaint in the present case is twofold. The applicant, who is a paraplegic confined to a wheelchair and suffering from serious malfunctions of the urethral and annals sphincters, complained that the medical and nursing care which had been provided to him during his detention had been inadequate. In parallel, he complained about overcrowding and the resultant poor living and sanitary conditions in prison, which failed in particular to meet the standard required for persons in his state of health. The applicant claimed that this situation had caused him pain and suffering during his detention. 124. The applicant was deprived of liberty on three separate occasions, namely from 7 January to 28 February 2001, 1 September 2003 to 26 May 2004 and from 2 September 2005 to 18 June 2008 (see paragraphs 8-11, 15 ‑ 29 and 33-68 above). He lodged his application with the Court on 20 September 2007, having already spent two years serving the third period of his detention, and nearly a year before he was eventually released. 125. It follows that the facts of his case differ in two important details from the facts of the application which was relied on by the Government in support of their non-exhaustion objection (see Nocha, cited above). In the Nocha case, the applicant, an epileptic detainee, based his Article 3 complaint not only on the allegation that the overall detention conditions and the inadequate treatment of his illness had caused him suffering during his detention, but also on his assertion that those factors had resulted in material and long-lasting damage to his health. The Court considered that it was neither mandated nor in a position to obtain and examine evidence necessary to rule on the existence of a causal link between the applicant ’ s treatment in prison and his state of health after his release. In addition, it was also significant that the applicant had lodged his application with the Court in early 2009, seven months after his detention had begun and less than three months after it ended. Most importantly, at the time when the case was being decided by the Court, the applicant had still had time to bring a civil action under Article 23, taken in conjunction with Article 417 or Article 448 of the Civil Code, in order to seek compensation for the alleged violation. In those particular circumstances, the Court considered that the civil-law remedies indeed appeared suitable in the applicant ’ s case (see Nocha, cited above). 126. Conversely, the Court considers that the conclusion which it reached in its pilot judgments in the cases of Orchowski and Norbert Sikorski (see paragraph 117 above) that the structural nature of overcrowding undermined the effectiveness of any domestic remedy available at that time, equally applies to the present case in so far as it concerns the applicant ’ s detention, which lasted intermittently from January 2001 until June 2008, especially given that the Government and the prison authorities explicitly acknowledged the existence and systemic nature of the problem of overcrowding in Polish detention facilities at the relevant time ( see, Orchowski, cited above, § 146 and Norbert Sikorski, cited above, § 148). 127. It must be stressed that the applicant in the present case lodged a number of complaints with the prison authorities, the Ombudsman and the prosecutor in connection with the conditions of his imprisonment and the medical care provided. He also applied many times to be released from prison on health grounds (see paragraphs 32, 35, 42, 43, 44, 47, 49, 52, 56, 61 and 83 ‑ 88 above). The Court considers that by taking those actions, the applicant had sufficiently drawn the attention of the prison authorities to the question of the compatibility of his living conditions and medical care in prison with the state of his health. 128. Lastly, in the present case, the situation giving rise to the alleged violation of Article 3 ended on 18 June 2008 when the applicant was released from Siedlce Prison. The Court considers that, since the relevant civil action under Articles 24 and 448 of the Civil Code by which, as the Government claimed, the applicant could seek compensation for the infringement of his personal rights, including his dignity and health, is barred by a three-year statute of limitation, the applicant cannot presently be required to avail himself of that remedy ( see paragraph 120 above with further references ). 129. Accordingly, the Court dismisses the Government ’ s preliminary objection of non-exhaustion of domestic remedies. (b) Non- compliance with the six-month rule (i) The Government 130. The Government also submitted that the applicant had been detained on three separate occasions, with long periods in between which he had spent at liberty (from 7 January to 28 February 2001, 1 September 2003 to 26 May 2004, and 2 September 2005 to 18 June 2008). The conditions of his detention should not, therefore, be treated as a continuous situation. 131. Consequently, the Government asked the Court to consider as inadmissible the part of the application relating to the first and second periods of the applicant ’ s detention (from 7 January to 28 February 2001 and 1 September 2003 to 26 May 2004) as it was lodged out of time, and to reject it in accordance with Article 35 §§ 1 and 4 of the Convention. (ii ) The applicant 132. The applicant did not comment on the Government ’ s preliminary objection. (iii ) The Court 133. The Court reiterates that the object of the six ‑ month time-limit under Article 35 is to promote legal certainty by ensuring that cases raising issues under the Convention are dealt with within a reasonable time and that past decisions are not continually open to challenge. In cases where there is a continuing situation, the six-month period runs from the cessation of the situation. The concept of a “ continuing situation ” refers to a state of affairs which operates by continuous activities or omissions by or on the part of the State to render the applicant a victim. Normally, the six-month period runs from the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of (see I.D. v. Moldova, no. 47203/06, § 27, 30 November 2010, and Koval v. Ukraine, no. 65550/01, (dec.) 30 March 2004, with further references). 134. The present case concerns the detention which was imposed on the applicant on identifiable dates : from 7 January to 28 February 2001, 1 September 2003 to 26 May 2004 and 2 September 2005 to 18 June 2008. It follows that the applicant ’ s detention cannot be construed as a “continuing situation” (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § § 71-79, 10 January 2012 and G.R. v. the United Kingdom (dec.), no. 24860/94, 30 November 1994). Having regard to the date on which the present application was lodged, namely 20 September 2007, the complaint in so far as it refers to the events during the first and the second periods of the applicant ’ s detention was lodged more than six months after the alleged breach took place and must be declared inadmissible under Article 35 §§ 1 and 4 of the Convention, and can be taken into consideration only as factual background to the case (see Kulikowski v. Poland (no. 2), no. 16831/07, § 55, 9 October 2012 ). 2. Conclusion on admissibility 135. The Court notes that the complaint, in so far as it relates to the third period of the applicant ’ s detention (from 2 September 2005 to 18 June 2008) is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 136. The applicant complained that the care and conditions which had been afforded to him during the three terms of his detention had been incompatible with his special needs, in view of his paraplegia, serious malfunctions of the urethral and anal sphincters, and other ailments. In connection with his detention from 2 September 2005 to 18 June 2008, the applicant submitted that: the prison facilities had not been adapted to the use of a wheelchair, which had resulted in constant problems with accessing and using the toilet annex in his cell; he had not received a sufficient supply of incontinence pads and catheters, nor any worthwhile and regular physiotherapy adapted to his disability; and he had developed serious health problems, such as bedsores, repeated inflammations of the urethra, acute bacterial infections, and bladder stones. He also alleged that those problems had not met with an adequate medical response and that he had been detained in generally deplorable material conditions. In particular, his cells had been overcrowded and dirty and he had had to share them with smokers. Lastly, the applicant complained that, despite his disability and frail health, he had been regularly transported between prisons and hospitals by prison bus, without being properly fastened to his seat, and only rarely by ambulance. (b) The Government 137. The Government refrained from taking a position in respect of the merits of the application. (c) The third -party interveners 138. The written comments submitted on 2 July 2012 jointly by the Helsinki Foundation for Human Rights ( Helsińska Fundacja Praw Człowieka ) (“the Foundation”), the European Disability Forum and the International Disability Alliance contain an extensive overview of the domestic law and practice concerning the detention of persons with disabilities and of the international standards for the protection of the rights of the disabled, in particular the standards of “accessibility” and “reasonable accommodation”. 139. The third -party interveners argued that in Poland, prisoners with disabilities were notoriously subjected to greater distress and hardship than those which arose in the natural course of imprisonment. It was common that prisoners with disabilities had serious difficulties in accessing basic facilities, such as toilets and showers. They were also unable to move around the premises of their detention facilities without the aid of third persons. Lastly, the medical care within the prison system, in particular, physiotherapy, if provided to disabled prisoners at all, was of such a low standard that it often failed to prevent the further deterioration of prisoners ’ health or to relieve their pain and mental suffering. 140. It was concluded that in Poland, the treatment of prisoners with disabilities failed to meet the basic international standards and raised a serious issue under Article 3 of the Convention. In the view of the third -party interveners, the source of the problem did not lie so much in inadequate legal regulations as in the lack of budgetary resources and political will to implement the law, as well as in the general constraints of the prison infrastructure. 2. The Court ’ s assessment 141. A summary of the general principles concerning the examination of medical care and conditions of detention under Article 3 may be found in the Court ’ s recent judgments in Sławomir Musiał v. Poland (no. 28300/06, §§ 85 ‑ 88, ECHR 2009-...(extracts)) and Orchowski (cited above, §§ 119 ‑ 229). 142. The present case raises the issue of the compatibility of the applicant ’ s state of health with the conditions of his detention in Siedlce and Łódź Prisons and in the Warsaw -Mokotów Remand Centre between 2 September 2005 and 18 June 2008, and the adequacy of the medical care provided to him during that period. The Court must also decide whether the applicant ’ s situation attained the required minimum level of severity to fall within the ambit of Article 3 of the Convention. 143. The applicant ’ s medical condition is undisputed. He is a paraplegic who is confined to a wheelchair and suffers from serious malfunctions of the urethral and anal sphincters (see paragraph 6 above). 144. It is also clear that for a total of over eighteen months, the applicant was detained in Siedlce Prison, which is a regular detention facility not adapted for persons in wheelchairs (see paragraphs 35 and 98 above). The only time when it could not be disputed that the material conditions of the applicant ’ s detention complied with his special needs was during his three months ’ detention in Łódź Prison (see paragraph 64 above). 145. The Court observes that a variety of conditions in Siedlce Prison interfered with the applicant ’ s ability to be independent, at least in some of his daily routines, placing him in a position of absolute dependence on his fellow inmates and causing him both mental and physical suffering. 146. It is clear that no special arrangements were made to alleviate the hardships of the applicant ’ s detention in that facility. His complaints included the inappropriate sanitary conditions, especially for a person in his state of health, the inaccessibility of the toilet and shower room, the hazardous access to his bunk bed, and his periodic exposure to cigarette smoke (see paragraphs 42-47 above). 147. For an unspecified period after his placement in Siedlce Prison, the applicant, who suffers from incontinence, was not authorised to have daily baths or showers (see paragraphs 44 and 4 5 above), although some time later an authorisation to that effect was issued. That adjustment, however, had adverse consequences because the shower room was situated on a different floor from the applicant ’ s cell and he could access it only if carried up and down the stairs by his fellow inmates (see paragraph 45 above). Whether because of their personal characteristics, as described by the applicant (see paragraph 4 5 above) or simply, because they were not trained to care for people with disabilities, the applicant ’ s cellmates did not provide him with suitable and sufficient assistance. The Court has already criticised schemes whereby a prisoner with a physical disability is provided routine assistance by his fellow inmates, and considered that that must have given rise to considerable anxiety on the applicant ’ s part and placed him in a position of inferiority vis-à-vis the other prisoners (see, among many other authorities, Farbtuhs v. Latvia, no. 4672/02, § 60, 2 December 2004). 148. The Court also takes note of the fact that the shower cabin was not equipped with any hand rails which the applicant could hold on to in order to lift himself up or make other necessary movements (see paragraph 45 above). 149. Moreover, the cells in which the applicant was placed during his entire detention in Siedlce Prison had not been adapted for special - needs prisoners (see paragraphs 35, 47 and 91 above). 150. As the passageway was too narrow for his wheelchair, the applicant, who needed to change his incontinence pads and catheters regularly, could not access the toilet annex to his cell without asking for help from his cellmates (see paragraphs 43, 4 7 and 82 above). 151. The applicant also had to undertake a dangerous manoeuvre in order to access his bunk, heaving himself up from his wheelchair. On one such occasion in November 2 005, he fell painfully and an ambulance had to be called (see paragraphs 47 and 49 above). 152. It is even more striking, that the applicant was detained in these conditions contrary to the doctors ’ explicit recommendations that he be placed in a single-occupancy cell, have unrestricted access to a shower, the opportunity to do a range of rehabilitation exercises on his own, and the ability to move around in his wheelchair and lie on his stomach for long periods ( see paragraph 55 above ). As to the former requirement, the Court notes that the applicant was detained in multi-occupancy cells, although it is not clear whether the cells were overcrowded, as claimed by the applicant in general terms. It is not contested, however, that the cells (with the exception of Łódź Prison) were too small or cramped for a detainee in a wheelchair (see paragraphs 35, 43, 47, 49, 82 and 91 above) or that the applicant did not have unrestricted access to a shower (see paragraphs 44 and 45 above). 153. Moreover, it is clear, in the light of the facts described above, that the existence of ordinary architectural or technical barriers in Siedlce Prison greatly affected the applicant and caused him physical and psychological pain and suffering (see Arutyunyan v. Russia, no. 48977/09, § § 77 and 81, 10 January 2012, and Cara-Damiani v. Italy, no. 2447/05, § 70, 7 February 2012 ). 154. Lastly, it cannot be overlooked that during the first and a part of the third period of his detention in Siedlce Prison, the applicant had to share cells with smokers (see paragraphs 42, 46 and 91 above). 155. The Court has already held that detaining persons suffering from a serious physical disability in conditions inappropriate to their state of health, or leaving such persons in the hands of their cellmates for help with relieving themselves, bathing and getting dressed or undressed, amounted to degrading treatment (see Price v. the United Kingdom, no. 33394/96, § 30, ECHR 2001 ‑ VII; Engel v. Hungary, no. 46857/06, §§ 27-30, 20 May 2010; and Vincent v. France, no. 6253/03, §§ 94-103, 24 October 2006). 156. The applicant also submitted in the wider context of his living conditions that he had not received a sufficient supply of incontinence pads and catheters (or drainage bags), which had resulted in a further deterioration of his health and new ailments, such as bedsores, repeated inflammations of the urethra and acute bacterial infections. 157. The Court observes that the facts of the case reveal that out of the two years and ten months of his detention, the applicant was placed in a special infirmary or hospital cell, or was otherwise under the supervision and care of a nurse, for only an unspecified but very short period of time in Siedlce Prison (see paragraph 36 and 41 above) and for a total of three months during both of his stays in Łódź Prison (see paragraphs 64, 65, 77 and 78 above). 158. It is most important in the Court ’ s view, however, that throughout his detention, the applicant was supplied with a limited number of incontinence pads (either two or four every twenty-four hours) and catheters or drainage bags (see paragraphs 37, 39 and 75 above), and that at times he was not supplied with those items at all. It is obvious that the applicant, who is completely incontinent, was heavily reliant on those articles and achieved nothing by complaining to the medical staff and the authorities. 159. It was not established that the health problems which the applicant had started developing some months into his detention were a direct result of poor hygiene and the infrequent changing of his catheters. However, the Court finds it significant that the applicant who regularly complained of an insufficient supply of pads and catheters and a rash in the genitals area, had to receive emergency treatment on 15 January 2006 for a massive infection of the urethra and the presence of faecal bacteria (see paragraphs 53 above). 160. Moreover, the Court notes that the applicant ’ s statements about the conditions of his transport by prison bus were not refuted by the Government (see paragraphs 64 and 73 above). The Court finds particularly regrettable the practice of leaving the applicant unfastened in a moving vehicle, even if his wheelchair was immobilised, as happened on 28 August 2006 (see Engel v. Hungary, no. 46857/06, § 28, 20 May 2010 ). 161. Lastly, in so far as the present Article 3 complaint concerns the applicant ’ s general fitness for detention and the adequacy of the medical care offered to him between 2 September 2005 and 18 June 2008 the Court makes the following observations. 162. The applicant submitted that he had not been offered worthwhile and regular physiotherapy adapted to his disability and adequate medical treatment of his bladder stones and other, successively developing, ailments. 163. The case file reveals that at the relevant time, the applicant was examined by various medical specialists on many occasions, either in relation to his requests for release or when he was taken to hospital with urgent health problems (see paragraphs 38, 49, 50, 52, 53, 55, 59, 61, 62, 63, 66, 67, 69, 72, 74, 86, 87 and 96 above). 164. During his previous term of detention – in 2003 – the applicant developed a bedsore measuring 2 by 3 cm (see paragraphs 20 and 30 above), which was causing increased problems in the period which is the subject of the Court ’ s examination (see paragraph 62 above). This medical condition had been considered incurable and therefore, the treatment offered to the applicant in Siedlce and later, in Łódź Prison, was only of a supportive nature and providing only for superficial relief ( see paragraphs 40 and 66 above). In March 2007, however, the applicant had an opportunity to undergo reconstructive surgery for his bedsore at the hospital of Warszawa-Mokotów Remand Centre but he did not agree for the procedure. In view of the lack of the applicant ’ s consent the authorities continued with supportive treatment to the wound ( see paragraph 73 above). It appears from the case file that the dressing was changed every day and the wound was kept clean (see paragraph 98 above). 165. Eventually, on 24 April 2007 a laser procedure was performed on the bedsore at the hospital of Łódź Prison (see paragraph 77 above). 166. In the meantime, for the whole month of January 2006 the applicant received an intravenous antibiotic treatment for his urinary infection (see paragraph 53 and 54 above). 167. On 15 May 2006 he was diagnosed for the first time with blockage of the urethra and gallbladder stones (see paragraph 59 above). On 2 June 2006 he was prescribed surgery to remove the bladder stones and further urgent urological treatment (see paragraph 61 above). It was indicated, however, that surgery could not be performed before the bedsore had healed (see the report of 5 October 2006, paragraph 66 above). The actual surgery took place on 30 April 2007, that is, as late as eleven months after it had been prescribed but only six days after the applicant became eventually fit for it because of his bedsore condition (see paragraph 77 above). 168. Lastly, in October 2007 the applicant was diagnosed for the first time with an unspecified spinal disorder, for which surgery was prescribed in January 2008 (see paragraphs 83, 85, 86 and 87 above). 169. It was in relation to this medical condition that, on 18 June 2008 the domestic court decided that the applicant should be granted a licence for temporary release in order to undergo surgery and subsequent rehabilitation, as well as further urological treatment (see paragraph 92 above). 170. It is true that prior to that date, the domestic courts had repeatedly rejected the applicant ’ s requests for release on health grounds, holding that he had been fit for detention because adequate care and treatment could and indeed had been offered to him within the prison system (decisions of 8 and 23 February 2006, 10 May 2006 and 27 June 2007 (see paragraphs 55 ‑ 57 and 83 above)). 171. The Court, however, cannot on the basis of the case materials, contest these conclusions of the domestic courts because it is clear that in reaching their initial decisions, they had regard to the opinions of the medical experts that the applicant had not been fit to be detained as long as his urological infection and bedsore had not been cured (see paragraph 56 above) but preferred the reports of other medical experts and the remaining evidence (see paragraphs 56, 57, 83 above). 172. When, in June 2006, it became clear that the applicant ’ s general health had been deteriorating, that his bedsore had reached a diameter of 3 cm and that he had been unable to obtain advanced physiotherapy in prison (see paragraphs 62 and 63 above), the authorities took measures to transfer the applicant to Łódź Prison, which was equipped for prisoners with disabilities. The applicant received round-the-clock care from nurses and paramedics, and some treatment for his bedsore and some basic physiotherapy in that establishment (see paragraphs 65 and 66 above). 173. On 23 October 2006 the Łódź Regional Court rejected a request for the applicant ’ s release, which had been made four months earlier by the governor of Siedlce Prison, on the ground that adequate treatment was being provided to the applicant in Łódź Prison (see paragraph 67 above). 174. It is true that, when, on 20 December 2006, the Łódź Court of Appeal upheld the above decision, the applicant ’ s treatment had already ceased because he had been transferred back to Siedlce Prison (see paragraph 68 above). The available medical reports, however, do not imply that at that point the applicant faced major health risks. Moreover, it cannot be overlooked that, in the meantime, the authorities went to some lengths to provide the applicant with treatment for his developing ailments. On 28 November 2006 he even had a short medical check-up in the hospital in Konstancin (see paragraph 69). 175. In view of the above, the Court does not consider that it is in a position to establish whether or not the development of the applicant ’ s multiple ailments could have been arrested or slowed down had he been at liberty and free to seek medical care with the professionals of his choice. It is apparent in this case, however, that the applicant ’ s condition was regularly monitored by various specialists and that the authorities followed up the doctors ’ recommendations about the medical treatment of the applicant ’ s successively developing disorders to the greatest extent possible. In the absence of any medical certificates in support of the applicant ’ s claim that medical care secured to him in prison, had been inadequate or insufficient, the Court cannot reach the conclusion that in this context the authorities had acted in a way contrary to the requirements of the Convention. 176. Mindful of all the above considerations, the Court finds that while keeping the detention measure in place was not, in itself, incompatible with the applicant ’ s state of health, detaining him for eighteen months in a prison that was unsuitable for the incarceration of persons with physical disabilities and not making sufficient efforts to reasonably accommodate his special needs raises a serious issue under the Convention. 177. There is no evidence in this case of any positive intention to humiliate or debase the applicant. The Court holds, nevertheless, that to detain a person who is confined to a wheelchair and suffering from paraplegia and serious malfunctions of the urethral and anal sphincters in conditions where he does not have an unlimited and continuous supply of incontinence pads and catheters and unrestricted access to a shower, where he is left in the hands of his cellmates for the necessary assistance, and where he is unable to keep clean without the greatest of difficulty, reaches the threshold of severity required under Article 3 of the Convention and constitutes degrading and inhuman treatment contrary to that provision. The Court therefore finds a violation of this provision in the present case. II. ALLEDGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF ILL-TREATMENT BY A PRISON GUARD 178. The applicant also complained under Article 3 of the Convention that, on an unspecified date, he had been beaten up by a prison guard in Siedlce Prison. 179. However, pursuant to Article 35 of the Convention: “ ... 3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that: (a) the application is ... manifestly ill-founded ... 4. The Court shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings.” 180. The applicant failed to provide any details or any prima facie evidence to substantiate the above complaint. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 181. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 182. The applicant claimed 2 3, 6 00 euros (EUR) in respect of pecuniary damage on account of overdue child support fees, lost income, unpaid rent and medical expenses. He also claimed 50,000 EUR in respect of non ‑ pecuniary damage. 183. The Government submitted that the above claim in respect of pecuniary damage should be rejected as entirely irrelevant to the circumstances of the case. They also contested the applicant ’ s claim in respect of non-pecuniary damage as exorbitant. 184. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court considers that the applicant suffered damage of a non-pecuniary nature as a result of his detention in inhuman and degrading conditions, inappropriate to his state of health (see paragraphs 173 and 174 above), which is not sufficiently redressed by the finding of a violation of his rights under the Convention. 185. For the above-mentioned reasons, having regard to the specific circumstances of the present case and its case-law in similar cases (see, mutatis mutandis, Kupczak v. Poland, no. 2627/09, § 83, 25 January 2011, and Sławomir Musiał v. Poland, no. 28300/06, § § 111-12, 20 January 2009 ) and deciding on an equitable basis, the Court awards EUR 8 ,000 under this head, plus any tax that may be chargeable on that amount. B. Costs and expenses 186. The applicant claimed no costs and expenses, either for the Convention proceedings or for the proceedings before the domestic courts. C. Default interest 187. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention in respect of the material conditions of the applicant’s detention in view of his special needs. |
256 | (Suspected) terrorists | THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON GROUNDS OF CONDITIONS OF DETENTION 79. The applicant submitted that his conditions of detention on İmralı Island were inhuman and exceeded the severity threshold deriving from Article 3 of the Convention. He also alleged a violation of Articles 5, 6, 8, 13 and 14 of the Convention, on the grounds of the social isolation imposed on him during his detention in İmralı Prison. The Court considers these complaints primarily under Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” ... B. Merits 1. The parties ’ submissions ( a ) The applicant 81. The applicant pointed out that he had been the only inmate of İmralı Prison for ten years ten months, up until 17 November 2009, when five other prisoners had been transferred. Following this transfer his situation had not greatly improved : the time granted to prisoners for collective activities was extremely limited, especially as compared with the regime normally applied in the other high- security prisons. The applicant added that his social isolation had been further exacerbated by several prohibitions which were not applied to other convicted persons in Turkey, namely deprivation of a television set and any kind of telephone communication, strict censorship of his correspondence with the outside, and restrictions on access to outdoor exercise. Furthermore, the failure to improve the marine transport conditions was a physical obstacle to visits by his lawyers and family members, and to his access to daily newspapers and books. 82. The applicant also submitted that his state of health was rapidly deteriorating (breathing problems, permanent difficulties in the upper respiratory tracts, unidentified skin allergy, and so on), and asserted that he felt humiliated and degraded by all the said conditions of detention. 83. The applicant took the view that the Government had rejected most of the proposals presented by the CPT and the Human Rights Commission of the Turkish National Assembly geared to reducing the negative effects of his social isolation. ( b ) The Government 84. The Government contested that argument. They first of all observed that the applicant had made no allegation of ill- treatment by prison staff. 85. The Government referred to the conclusions presented by the CPT following its January 2010 visit to the effect that the material conditions in the cell and the building in which the applicant was detained were in conformity with the highest international standards in matters of detention. They explained that following the comments from the CPT on the quantity of daylight entering the applicant ’ s cell, a team made up of architects and an ophthalmologist had visited the premises and noted that the cell had sufficient exposure to daylight, making it possible to read and work without any problem during the daytime, without the use of artificial light. 86. Moreover, the Government submitted that when the applicant was not subject to a disciplinary sanction, he had thirty-six and a half hours per week of activities outside his cell, including eight and a half in the company of the other prisoners. When he was subject to a disciplinary sanction – consisting of confinement to his cell – the applicant was allowed two hours per day of out-of-cell activities. 87. The Government also observed that the system of healthcare for the applicant had been completely reorganised in accordance with the CPT ’ s recommendations. 88. The Government asserted that the refusal to allow the applicant to have a television set in his cell or to make telephone calls was due to the recurrent disciplinary offences which he had committed and the resultant sanctions, as well as the danger which he posed; they referred in this regard to section 4 of Law no. 5275 on the enforcement of sentences and preventive measures. 89. The Government drew attention to the fact that neither the applicant nor his lawyers had appealed against the disciplinary sanctions imposed. They submitted that the national authorities had welcomed the CPT ’ s suggestions and had taken all the necessary steps to apply the optimum international standards of detention to the applicant. They quoted the examples of the transfer of five more prisoners to İmralı, the possibility of engaging in collective activities, the introduction of “around the table” visits, the replacement of visits cancelled owing to poor weather conditions, and the twice-weekly deliveries of newspapers arriving every day. 90. The Government affirmed that the law enabled prison authorities to prevent prisoners from sending or receiving mail which jeopardised law and order and prison security or which facilitated communication with other members of a terrorist organisation. 91. They reiterated in this connection that the applicant had been sentenced to life imprisonment for running an organisation whose attacks had killed and maimed thousands of people and jeopardised the peace and safety of the population. Following the applicant ’ s incarceration, the PKK had continued its armed attacks and terrorist activities. There was reliable evidence that the applicant had been transmitting instructions to members of his organisation, who in fact still considered him as their leader, through the intermediary of the lawyers who visited him every week for the needs of his applications to the Court. The Government pointed out that because of such acts the applicant had been the subject of disciplinary proceedings, leading to disciplinary sanctions preventing him from having a television set and using the telephone; however, those sanctions had apparently not had the required deterrent effect and the applicant had persisted in this behaviour. They asserted that when some of the lawyers had been banned from visiting the applicant because of the transmission of messages to the PKK, some of the new lawyers replacing them had continued to act as messengers between the applicant and his armed organisation. The Government submitted that if the applicant complied with the prison regulations, no further disciplinary sanctions would be imposed on him and he would benefit from the facilities of communication with the outside world as authorised by law. 92. The Government affirmed that telephone calls had been technically possible for İmralı inmates since 20 March 2010 and that the applicant could telephone for ten minutes every fortnight. 2. The Court ’ s assessment ( a) Period of detention to be taken into consideration 93. The Court must first of all determine the period of detention to be taken into consideration in assessing the conformity of the conditions of detention with the requirements of Article 3. 94. It firstly reiterates that within the compass delimited by the decision on the admissibility of the application, the Court may deal with any issue of fact or law that arises during the proceedings before it ( see, among many other authorities, Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998-I; Chahal v. the United Kingdom, 15 November 1996, § 86, Reports 1996-V; and Ahmed v. Austria, 17 December 1996, § 43, Reports 1996-VI). 95. The Court secondly reiterates that it considered the conformity with Article 3 of the applicant ’ s conditions of detention from the outset until 12 May 2005 in its judgment of the same date ( see Öcalan, cited above, §§ 192 ‑ 196), when it reached the following conclusion: “While concurring with the CPT ’ s recommendations that the long- term effects of the applicant ’ s relative social isolation should be attenuated by giving him access to the same facilities as other high security prisoners in Turkey, such as television and telephone contact with his family, the Grand Chamber agrees with the Chamber that the general conditions in which he is being detained at İmralı Prison have not thus far reached the minimum level of severity required to constitute inhuman or degrading treatment within the meaning of Article 3 of the Convention. Consequently, there has been no violation of that provision on that account. ” 96. In the present judgment, the Court can only hear and determine the facts which have occurred since its judgment of 12 May 2005 ( application no. 46221/99), up to 8 March 2012 ( the date of the latest observations received ). It will, however, take into account the applicant ’ s situation on 12 May 2005, particularly with regard to the long- term effects of his particular conditions of detention. ( b) General principles 97. The Court reiterates that Article 3 of the Convention enshrines one of the fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned ( see El Masri v. “ the Former Yugoslav Republic of Macedonia ” [GC], no. 39630/09, § 195, ECHR 2012; Ramirez Sanchez v. France [GC], no. 59450/00, § 115, ECHR 2006 ‑ IX; and Chahal, cited above, § 79). 98. In the modern world, States face very real difficulties in protecting their populations from terrorist violence. However, unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation ( see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000 ‑ IV; Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V; and Assenov and Others v. Bulgaria, 28 October 1998, § 93, Reports 1998-VIII). The nature of the offence with which the applicant is charged is therefore irrelevant to the assessment under Article 3 ( see Ramirez Sanchez, cited above, § 116, and Indelicato v. Italy, no. 31143/96, § 30, 18 October 2001). 99. In order to fall within the scope of Article 3, ill-treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case, including the duration of the treatment and its physical or mental effects, and also, in some cases, on the sex, age and state of health of the victim, and so on (see, for example, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25). Moreover, to assess the evidence before it in establishing cases of treatment contrary to Article 3, the Court adopts the standard of proof “beyond reasonable doubt”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the Parties when evidence is being obtained has to be taken into account (ibid, § 161). 100. The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering. It has also deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them ( see, for example, Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI). In considering whether a punishment or treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 ( see, for example, Raninen v. Finland, 16 December 1997, § 55, Reports 1997 ‑ VIII). However, the absence of any such object or purpose cannot conclusively rule out a finding of a violation of Article 3 ( see V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX, and Van der Ven v. the Netherlands, no. 50901/99, § 48, ECHR 2003 ‑ II). 101. In order for a punishment or the treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment ( see, for example, V. v. the United Kingdom, cited above, § 71; Indelicato, cited above, § 32; Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 428, ECHR 2004-VII; and Lorsé and Others v. the Netherlands, no. 52750/99, § 62, 4 February 2003). 102. In this regard, it should be pointed out that measures depriving a person of his liberty are usually accompanied by such suffering and humiliation. Nevertheless, Article 3 requires the State to ensure that all prisoners are detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured ( see Kudła, cited above, §§ 92-94, and Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002-VI). The Court adds that the measures taken must also be necessary to attain the legitimate aim pursued ( see Ramirez Sanchez, cited above, § 119). 103. Furthermore, when assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant ( see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001 ‑ II). 104. One of the main elements of the applicant ’ s allegations in the present case is the length of time he spent in relative social isolation. On that specific point the Court reiterates that a prisoner ’ s segregation from the prison community does not in itself amount to inhuman treatment. In many States Parties to the Convention more stringent security measures exist for dangerous prisoners. These arrangements, which are intended to prevent the risk of escape, attack, disturbance of the prison community or contact with those involved in organised crime, are based on separation of the prison community together with tighter controls ( see Ramirez Sanchez, cited above, § 138). 105. However, in order to avoid any risk of arbitrariness, substantive reasons must be given when a protracted period of solitary confinement is further extended. The decision should thus make it possible to establish that the authorities have carried out a reassessment that takes into account any changes in the prisoner ’ s circumstances, situation or behaviour. The statement of reasons will need to be increasingly detailed and compelling as time passes. 106. Furthermore, such measures, which are a form of “imprisonment within the prison”, should be resorted to only exceptionally and after every precaution has been taken, as specified in paragraph 53.1 of the Prison Rules adopted by the Committee of Ministers on 11 January 2006. A system of regular monitoring of the prisoner ’ s physical and mental condition should also be established in order to ensure that his condition is compatible with continued solitary confinement ( ibid., § 139). 107. The Court has already established the conditions under which solitary confinement of a prisoner – even if he is considered dangerous – constitutes inhuman or degrading treatment ( or indeed, under some circumstances, torture ), as follows : “ Complete sensory isolation coupled with total social isolation can destroy the personality and constitutes a form of inhuman treatment that cannot be justified by the requirements of security or any other reason. On the other hand, the prohibition of contact with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment .” ( see, among other authorities, Messina v. Italy (no. 2) (dec.), no. 25498/94, ECHR 1999 ‑ V, and Öcalan, cited above, § 191, the two cases in which the Court concluded that there had been no treatment contrary to Article 3). Similarly, the Court found a violation of Article 3 of the Convention in the following conditions of detention : “ As regards the applicant ’ s conditions of detention while on death row, the Court notes that Mr Ilaşcu was detained for eight years, from 1993 until his release in May 2001, in very strict isolation: he had no contact with other prisoners, no news from the outside – since he was not permitted to send or receive mail – and no right to contact his lawyer or receive regular visits from his family. His cell was unheated, even in severe winter conditions, and had no natural light source or ventilation. The evidence shows that Mr Ilaşcu was also deprived of food as a punishment and that in any event, given the restrictions on receiving parcels, even the food he received from outside was often unfit for consumption. The applicant could take showers only very rarely, often having to wait several months between one and the next. On this subject the Court refers to the conclusions in the report produced by the CPT following its visit to Transdniestria in 2000 (see paragraph 289 above), in which it described isolation for so many years as indefensible. The applicant ’ s conditions of detention had deleterious effects on his health, which deteriorated in the course of the many years he spent in prison. Thus, he did not receive proper care, having been deprived of regular medical examinations and treatment (see paragraphs 253, 258-60, 262-63 and 265 above) and dietetically appropriate meals. In addition, owing to the restrictions on receiving parcels, he could not be sent medicines and food to improve his health. ” ( see Ilaşcu and Others, cited above, § 438; see also, for a finding of no violation of Article 3 in the case of different conditions of detention, Rohde v. Denmark, no. 69332/01, § 97, 21 July 2005 ). ( c) Application of these principles to the present case i. Specific nature of the case 108. As regards the present case, the Court observes that in its judgment of 12 May 2005 it found that the applicant ’ s detention posed exceptional difficulties for the Turkish authorities. As the head of a large armed separatist movement the applicant was considered by a large section of the Turkish population as the most dangerous terrorist in the country. This was compounded by all the differences of opinion that had come to light within his own movement, showing that his life was genuinely at risk. It was also a reasonable presumption that his supporters would seek to help him escape from prison. 109. The Court observes that those conditions have not radically changed since May 2005: the applicant has remained actively involved in the political debate in Turley regarding the PKK armed separatist movement, and his instructions as transmitted by his lawyers ( see § 43 above ) have been closely monitored by the general public, prompting a variety of reactions, some of which have been very extreme ( see § 45 above ). The Court therefore understands why the Turkish authorities found it necessary to take extraordinary security measures to detain the applicant. ii. Physical conditions of detention 110. The physical conditions of the applicant ’ s detention must be taken into account in assessing the nature and duration of his solitary confinement. 111. The Court observes that before 17 November 2009 the cell occupied alone by the applicant had an area of approximately 13 sq. m and contained a bed, a table, a chair and a bookshelf. It was air-conditioned and had a sanitary annex. It had a window overlooking an exercise yard and sufficient natural and artificial light. In February 2004 the walls had been reinforced with chipboard panels to protect them against the damp. 112. The Court also observes that since 17 November 2009 the applicant has been the sole occupant of a cell in the new İmralı Prison building, which was designed also to accommodate other prisoners. His new cell has an area of 9. 8 sq. m ( living space), with an additional 2 sq. m ( bathroom and toilets ), and comprises a bed, a small table, two chairs, a metal cupboard and a kitchenette with a wash basin. The building comprising the cells is properly damp-proofed. The applicant ’ s cell has a window measuring 1 m x 0. 5 m and a partly glazed door, both of which open on to an exercise yard. The Government, drawing on an expert report indicating that the cell receives enough natural light and on concerns about the applicant ’ s safety, would appear not to have accepted the CPT ’ s proposal to lower the wall. 113. The new building provides the applicant and the other inmates with a sports room equipped with a ping-pong table and two further rooms furnished with chairs and tables, all three of which rooms receive plentiful daylight. In the new building, up until the end of 2009 /beginning of 2010, the applicant enjoyed two hours of outdoor activities per day, remaining alone in the exercise yard adjacent to his cell. Furthermore, he was able to spend one hour per week alone in the recreation room (where no specific activities were on offer) and two hours per month alone in the prison library ( see paragraph 26 above ). 114. In response to the CPT ’ s observations after its January 2010 visit, the authorities responsible for İmralı Prison relaxed the relevant regulations. The applicant was accordingly authorised to engage alone in out-of-cell activities four hours per day. 115. The Court notes that the physical conditions of the applicant ’ s detention are in conformity with the European Prison Rules adopted by the Committee of Ministers on 11 January 2006. Furthermore, the CPT has also described them as “ broadly acceptable ”. Therefore, no infringement of Article 3 can be found on this account. iii. The nature of the applicant ’ s isolation – Access to information 116. Before 17 November 2009 the applicant ’ s cell contained books and a radio which only received State broadcasts. He was not allowed to have a television set in his cell on the ground that he was a dangerous prisoner and a member of an illegal organisation. For the same reasons he had no access to telephones. These restrictions increased the applicant ’ s relative social isolation. 117. Over the same period the applicant was subject to restrictions in his access to the daily and weekly press. In fact, he received newspapers once a week, provided by his family or lawyers. Sometimes, when there were no visits from his relatives or lawyers, he went for weeks on end without any access to the press. The newspapers delivered to the applicant were extensively censored. 118. After 17 November 2009 a number of improvements were made to these conditions. From 2010 onwards the applicant, like the other İmralı Prison inmates, received newspapers twice instead of once a week. Since March 2010 he has also been allowed ten minutes of telephone calls to the outside per fortnight. 119. All in all, the Court observes that the applicant has benefited from moderate access to information, and not all the means of communication have been available at the same time. Censorship of the daily papers delivered to the applicant would appear to be offset by uncensored access to books. Given that access to television is a means of mitigating the harmful effects of social isolation and since the inmates of the other high-security prisons benefit from such facilities without any major restrictions, the Court holds that the restriction imposed on the applicant until recently in this regard, without any convincing justification, was such as to increase his relative social isolation in the long term. – Communication with prison staff 120. In the light of the reports prepared by the CPT after its visits in 2007 and 2010 ( see links in paragraph 72 above, (CPT/Inf (2008)13 for the May 2007 visit, §§ 25-30, and CPT/Inf (2010) 20 for the January 2010 visit, §§ 30-35), the Court observes that for practically the whole duration of his first eleven years of detention the applicant received daily visits from GPs. A different doctor attended him each time, which the CPT says ruled out any constructive doctor/patient relationship. 121. From May 2010 onwards, following the CPT recommendations, the applicant received doctor ’ s visits either regularly once a month or at his request or as needed. A specific physician was charged with collating all medical data on the applicant ’ s health, assessing the data and ensuring respect for their medical secrecy. 122. The Court also notes that none of the medical certificates issued by the medical officers of the Ministry of Health and none of the CPT visit reports mentioned that the applicant ’ s relative social isolation could have major and permanent negative effects on the applicant ’ s health. It is true that after their visit in 2007 the CPT delegates reported a deterioration in the applicant ’ s mental state as compared with 2001 and 2003. According to the CPT delegates, this deterioration was the result of a state of chronic stress and social and affective isolation, combined with a feeling of abandonment and disillusionment, not forgetting a longstanding ENT problem. Following their visit to İmralı in 2010 after the construction of a new building and the transfer of other prisoners to İmralı Prison, the CPT delegates noted that the applicant ’ s mental state had considerably improved, although he was still slightly vulnerable, a condition which had to be monitored. 123. The Court further observes that the prison staff were authorised to communicate with the applicant, but that they had to restrict conversations to the strict minimum required for their work. Such contact is not in itself capable of lessening a prisoner ’ s social isolation. – Communication with the other inmates 124. Before 17 November 2009 the only contact which the applicant, as the only inmate of İmralı Prison, could have was with the staff working there, within the strict limits of their official duties. 125. After 17 November 2009, when the applicant and five other prisoners transferred to İmralı from different prisons were moved to the new building, the applicant was authorised to spend one hour per week conversing with the other inmates. 126. In response to the observations made by the CPT following its visit in January 2010, the authorities responsible for İmralı Prison relaxed the rules on communication between the applicant and the other prisoners. Since then the applicant has been allowed to spend three hours, rather than just one, per week with the other inmates for conversation. Moreover, like all the İmralı inmates, he can engage, on request, in the following five collective activities, at a rate of one hour per week for each of the five : painting and handicraft activities, table tennis, chess, volleyball and basketball. He can therefore engage in a total of five hours ’ collective activities per week. According to the prison registers, the applicant in fact only plays volleyball and basketball. In 2010 the prison authorities considered giving the applicant and the other prisoners two extra hours per week to engage in other collective activities. – Communication with family members 127. The Court observes that the applicant was visited by members of his family, particularly his sisters and his brother. 128. Even though the prison rules authorise a one-hour visit by close relatives ( brothers and sisters in the applicant ’ s case ) every fortnight, the visits did not take place as frequently as the applicant and his family would have wished. The fact that the applicant was incarcerated in a prison located on a remote island inevitably caused major problems of access for the family members as compared with high- security prisons on the mainland. The main reasons advanced by the governmental authorities to explain the frequent interruptions in the shuttle-boat services between the prison and the nearest coast highlight the difficulties: “ 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 ”. 129. Perusal of the dates and frequency of visits actually conducted by relatives and visits refused shows that in 2006 and early 2007 more visits were refused than actually effected. On the other hand, visits increased in frequency in late 2007 and in 2008, 2009 and 2010. In 2011 and 2012, however, the applicant received very few visits from his relatives. In this connection the Court notes with concern that very many visits were blocked by poor weather conditions and technical breakdowns in the shuttle boats, which sometimes necessitated several week ’ s work, despite the fact that the Government had informed the Court, in the case of Öcalan v. Turkey which led up to the Grand Chamber judgment of 12 May 2005, that such difficulties would be eliminated by the use of more suitable means of transport ( see Öcalan, cited above, § 194). 130. As to the conditions under which these visits are conducted, the Court observes that prior to 2010 the applicant could only communicate with his sisters and brother in visiting rooms equipped with a barrier ( consisting of glass panels and telephones ), because under the prison rules visiting rooms without barriers were reserved for first- degree relatives. This section of the prison rules having been deleted by the administrative courts in December 2009, the applicant and the members of his family who have visited him since 2010 have sat around a table. – Communication with lawyers and other persons 131. The Court observes that the applicant has been visited by his lawyers, sometimes at regular intervals and sometimes sporadically. While the applicant was entitled to see his lawyers once a week ( every Wednesday ), he was in fact deprived of most of these visits. The prison authorities adduced poor weather conditions or ferry breakdowns to explain refusals of visit requests. 132. The Court notes that the periods when the applicant was refused lawyer ’ s visits preceded the commencement of proceedings against some of the applicant ’ s lawyers, who had been accused of having acted as messengers between him and the PKK. It notes that the interruptions in visits were more due to the national authorities ’ concern to prevent communication between the applicant and his former armed organisation that to weather conditions or boat breakdowns. 133. The Court further observes that the applicant was entitled to correspond with the outside world under the supervision of the prison authorities, and that the mail which he received was inspected and censored. 134. It also notes that the applicant was not permitted to have confidential conversations with his lawyers. The records of these conversations were subject to supervision by the post-sentencing judge. 135. The Court concludes that, as a person incarcerated for terrorist activities, the communication between the applicant and his lawyers and his correspondence were subject to greater restrictions than those of persons held in other prisons. Nevertheless, while persons deprived of their liberty for terrorist activities cannot be excluded from the scope of the provisions of the Convention and the essence of their rights and freedoms recognised by the latter must not be infringed, the national authorities can impose “ legitimate restrictions ” on them inasmuch as those restrictions are strictly necessary to protect society against violence. – Conclusion on the nature of the solitary confinement imposed on the applicant 136. The Court concludes that for the period up to 17 November 2009, the applicant cannot be said to have been detained in total sensory or social isolation. His social isolation at that time was partial and relative. Since 17 November 2009 ( for the remainder of the period under consideration, see § 96 above ), the applicant also cannot be deemed to have been maintained in strict social isolation, despite the major de facto restrictions to his communication with his lawyers. iv. Duration of the applicant ’ s social isolation 137. The Court finds that the applicant was kept in relative social isolation from 12 May 2005 to 17 November 2009, that is to say for approximately four years and six months. It should be remembered that on 12 May 2005, when the Court gave its judgment on the previous application lodged by the applicant, the latter, who had been arrested on 15 February 1999, had already been detained in relative social isolation for approximately six years and three months. The total duration of the detention in relative social isolation was therefore nineteen years and nine months. 138. In view of the length of that period, a rigorous examination is called for by the Court in order to determine whether it was justified, whether the measures taken were necessary and proportionate in the light of the available alternatives, what safeguards were afforded the applicant and what measures were taken by the authorities to ensure that the applicant ’ s physical and mental condition was compatible with his continued solitary confinement ( see Ramirez Sanchez, cited above, § 136). 139. For the period preceding 17 November 2009, the restrictions placed on the applicant were comparable to those imposed on Mr Ramirez Sanchez, whose application was the subject of a Grand Chamber judgment finding no violation of Article 3 of the Convention ( ibid., particularly §§ 125-150). While Mr Ramirez Sanchez had been placed for a certain length of time in an area of the prison where inmates had no possibility of meeting one another or of being in the same room together, the applicant was the only inmate of the prison and therefore could only meet physicians and staff members on a day-to- day basis. He was visited by members of his family and his lawyers when marine transport conditions so permitted. 140. The Court accepts that the placement and maintenance of the applicant in such conditions of detention were motivated by the risk of escape from a high-security prison, the concern to protect the applicant ’ s life against those who hold him responsible for the deaths of a large number of people and the desire to prevent him from transmitting instructions to his armed organisation, the PKK, which still considered him as its leader. 141. Nevertheless, the Court already held in Ramirez Sanchez that it would be desirable for alternative solutions to solitary confinement to be sought for persons considered dangerous and for whom detention in an ordinary prison under the ordinary regime is considered inappropriate ( ibid., § 146). 142. The Court observes that the CPT, in its report on its visit from 19 to 22 May 2007, expressed similar concerns about the negative effects of prolonging conditions which were tantamount to relative social isolation. Finally, in March 2008, in the absence of any real progress on this matter by the Government, the CPT initiated the procedure of issuing a public statement, as provided for in Article 10 § 2 of the European Convention for the Prevention of Torture and Inhuman or Degrading Punishment or Treatment. 143. The Court notes the Government ’ s positive reaction with interest. In June 2008 they decided to construct a new building inside İmralı Prison in order to comply with the standards required by the CPT in relation to the applicant ’ s detention, and in October 2008 they held high-level negotiations on this matter with CPT representatives. The building work was completed in summer 2009, and in November 2009 the applicant and other prisoners transferred from other prisons were moved to the new building. 144. The Court finds that the regime applied to the applicant from November 2009 onwards gradually moved away from social isolation. His communication with the other inmates, which was initially very limited, progressed as the Government accepted most of the CPT ’ s relevant suggestions. In March 2010, in the light of these developments, the CPT discontinued the procedure which it had decided to initiate two years previously under Article 10 § 2 of the Convention for the Prevention of Torture. 145. The Court notes the CPT ’ s concern about the possible long - term effects of the prolonged lack of a television set in the applicant ’ s cell ( until 12 January 2012) and of the frequent interruptions in his communication with his lawyers and relatives. All these facilities help prevent prisoners ’, and therefore the applicant ’ s, social isolation. Prolonged absence of such facilities, combined with the “ time ” factor, that is to say over thirteen years ’ incarceration in the applicant ’ s case if the beginning of his detention is taken as the starting point, is liable to cause him a justified feeling of social isolation. In particular, the Court holds that although the choice of a remote island as the applicant ’ s place of detention was a matter for the Government, they are duty-bound, in such cases, to ensure that the prison in question has appropriate means of transport in order to facilitate the normal operation of the regulations on visits to prisoners. v. Conclusions - Prior to 17 November 2009 146. The Court reiterates that in its judgment of 12 May 2005 it took note of the CPT ’ s recommendations that the applicant ’ s relative social isolation should not be allowed to continue for too long and that its effects should be attenuated by giving him access to a television and to telephone communications with his lawyers and close relatives ( see Öcalan, cited above, § 195). It also reiterates that in the same judgment it pointed out that the general conditions in which the applicant is being detained at İmralı Prison had not reached the minimum level of severity required to constitute inhuman or degrading treatment within the meaning of Article 3 of the Convention ( see Öcalan, cited above, § 196). However, the Court now notes that the applicant ’ s social isolation continued until 17 November 2009 under more or less the same conditions as those observed in its 12 May 2005 judgment. In its assessment of the applicant ’ s conditions of detention prior to 17 November 2009, the Court takes account of the conclusions set out by the CPT in its report on its May 2007 visit ( see § 72 above ) and its own findings, particularly the extension to nineteen years and nine months of the period during which the applicant was the prison ’ s only inmate (see paragraph 137 above ), the lack of communication media to prevent the applicant ’ s social isolation ( protracted absence of a television set in the cell and of telephone calls – see paragraphs 116 and 119 above ), excessive restrictions on access to news information ( see paragraphs 116, 117 and 119 above ), the persistent major problems with access by visitors to the prison ( for family members and lawyers ) and the insufficiency of the means of marine transport in coping with weather conditions ( see paragraph 129 above ), the restriction of staff communication with the applicant to the bare minimum required for their work ( see paragraphs 123 and 124 above ), the lack of any constructive doctor/patient relationship with the applicant ( see paragraph 120 above ), the deterioration in the applicant ’ s mental state in 2007 resulting from a state of chronic stress and social and affective isolation combined with a feeling of abandonment and disillusionment ( see paragraph 122 above ), and the fact that no alternatives were sought to the applicant ’ s solitary confinement until June 2008, despite the fact that the CPT had mentioned in its report on the May 2007 visit the negative effects of prolonging conditions tantamount to social isolation ( see paragraph 122 above ). The Court concludes that the conditions of detention imposed on the applicant during that period attained the severity threshold to constitute inhuman treatment within the meaning of Article 3 of the Convention. 147. There has accordingly been a violation of Article 3 of the Convention in relation to the applicant ’ s conditions of detention up to 17 November 2009. - After 17 November 2009 148. In its assessment of the period subsequent to 17 November 2009, the Court takes into account, in particular, the physical conditions of the applicant ’ s detention, the Government ’ s positive reaction in the light of the procedure initiated by the CPT under Article 10 § 2 of the Convention for the Prevention of Torture, which resulted in the transfer of other prisoners to İmralı Prison ( see paragraph 143 above ), the improvement in the applicant ’ s access to news and information during this period ( see paragraph 118 above ), the substantial reinforcement of communication and collective activities between the applicant and the other inmates in response to the CPT ’ s observations following its visit in January 2010 ( see paragraph 126 above ), the increased frequency of visits authorised and the quality of the applicant ’ s conversations with his family, without any glass barrier ( see paragraphs 129 and 130), and the provision of facilities mitigating the effects of the relative social isolation ( telephone contact since March 2010, television in his cell since January 2012). The Court concludes that the conditions of detention imposed on the applicant during this period did not attain the severity threshold to constitute inhuman treatment within the meaning of Article 3 of the Convention. 149. There has accordingly been no violation of Article 3 of the Convention on the ground of the conditions of detention imposed on the applicant during the period after 17 November 2009. The Court stresses that the finding of no violation of Article 3 of the Convention cannot be interpreted as an excuse for the national authorities not to provide the applicant with more facilities for communicating with the outside world or to relax his conditions of detention, because as the length of time he has spent in detention increases, it may become necessary to grant him such facilities in order to ensure that his conditions of detention remain in conformity with the requirements of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ON ACCOUNT OF THE RESTRICTIONS PLACED ON VISITS BY AND COMMUNICATION WITH FAMILY MEMBERS 1 50. The applicant complained of a violation of his right to respect for his family life on the basis of some of the facts which he presented under Article 3 of the Convention, that is to say the restrictions imposed on his contact with members of his family, telephone calls, correspondence and visits. 151. Article 8 of the Convention provides : “ 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. ” 152. The Government contested that argument and broadly reiterated the observations presented under Article 3 of the Convention concerning communication between the applicant and the members of his family. They pointed out that the applicant could communicate with his relatives subject to the restrictions imposed by legislation concerning high-security prisons and the execution of sentences (that is to say, in the present case, life imprisonment. They add that where a disciplinary sanction was imposed on the applicant for failing to comply with the prohibition on transmitting messages to his former armed organisation, this had an impact on the exercise of the right to receive visits. ... B. Merits 154. The Court reiterates that any detention which is lawful for the purposes of Article 5 of the Convention entails by its nature a limitation on private and family life. However, it is an essential part of a prisoner ’ s right to respect for family life that the prison authorities assist him in maintaining contact with his close family ( see Messina v. Italy (no. 2), cited above, § 61). 155. In the present case, the Court stresses that the applicant, who was sentenced to life imprisonment in a high- security prison, is subject to a special detention regime which involved restricting the number of family visits ( once a week, on request ) and, up until 2010, imposed measures to monitor the visits ( the prisoner was separated from his visitors by a glass panel ). 156. The Court considers that these restrictions undoubtedly constitute an interference with the applicant ’ s exercise of his right to respect for his family life as secured by Article 8 § 1 of the Convention ( see X v. the United Kingdom, no. 8065/77, Commission decision of 3 May 1978, Decisions and Reports 14, p. 246). 157. Such interference is not in breach of the Convention if it is “in accordance with the law”, pursues one or more legitimate aims under paragraph 2 of Article 8 and may be regarded as a measure which is “necessary in a democratic society”. 158. The Court notes that the security measures were imposed on the applicant in accordance with the provisions of the legislation on the regime for prisoners considered dangerous, particularly Law no. 5275 on the execution of sentences and preventive measures, and that they were therefore “ in accordance with the law”. It also considers that the measures in question pursued aims which were legitimate for the purposes of Article 8 § 2 of the Convention, namely the protection of public safety and the prevention of disorder and crime. 159. As regards the necessity of the interference, the Court reiterates that in order to be necessary “in a democratic society ”, interference must correspond to a pressing social need and, in particular, must be proportionate to the legitimate aim pursued ( see, among other authorities, McLeod v. the United Kingdom, 23 September 1998, § 52, Reports 1998-VII). 160. The Court notes that the regulations on contacts with families for life prisoners in high- security prisons tend to limit the existing relations between the persons concerned and their original criminal environment in order to minimise the risk of their maintaining personal contacts with the criminal organisations. The Court reiterates that in its judgment of 12 May 2005 ( see Öcalan, cited above, § 192) and in paragraph 132 above, it considered the Government ’ s concerns justified, as they feared that the applicant might use his communications with the outside to resume contact with members of the armed separatist movement of which he was the leader. The Court is not in a position to assess whether the circumstances of the applicant ’ s detention had radically changed between 2005 and the date of the said restrictions on communication. 161. The Court also reiterates that many of the States parties to the Convention have stricter security regimes for dangerous prisoners. These regimes are based on stepping up surveillance of communications with the outside in respect of prisoners posing a particular threat to internal order in the prison and law and order outside. 162. In the light of these arguments, the Court cannot doubt the need for the special detention regime as applied to the applicant. 163. As regards striking a balance between the applicant ’ s individual interest in communicating with his family and the general interest of limiting his contact with the outside, the Court notes that the prison authorities attempted to help the applicant as far as possible to remain in contact with his immediate family, authorising visits once a week without any limit on the number of visitors. Furthermore, from 2010 onwards the prison authorities, further to the CPT ’ s recommendations, allowed the applicant to receive his visitors seated at a table ( see, conversely, Trosin v. Ukraine, no. 39758/05, §§ 43-47, 23 February 2012). The case file also shows that ten minutes of telephone calls are authorised per fortnight. Correspondence between the applicant and his family is functioning normally, apart from the inspections and censorship carried out in order to prevent exchanges relating to PKK activities. 164. In the light of these considerations, the Court considers that the restrictions on the applicant ’ s right to respect for his family life did not exceed those which are necessary in a democratic society for the protection of public safety and the prevention of disorder and crime, within the meaning of Article 8 § 2 of the Convention. There has therefore been no violation of Article 8 of the Convention on this account. III. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION 16 5. The applicant further complained of a violation of Article 7 of the Convention, which provides: “ 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations. ” A. The parties 166. The applicant submitted that the commutation of the death penalty into life imprisonment without parole infringed Article 7 of the Convention, such commutation having resulted from a legislative amendment made subsequently to his conviction ( under Law no. 4771, which came into force on 9 August 2002). Prior to this amendment, persons sentenced to the death penalty whose execution had not been approved by the National Assembly had remained in prison for a maximum term of thirty-six years. In particular, the applicant would appear to have put forward two separate arguments: firstly he submitted that when he had been sentenced to the death penalty, the latter had, from the outset, been equivalent to a maximum prison term of thirty-six years, because in 1984 Turkey had declared a moratorium on the enforcement of the death penalty; secondly, the applicant would seem to be saying that after the abolition of capital punishment, the death penalty to which he had been sentenced was commuted first of all into an ordinary life sentence (with a possibility of release on parole after a specific minimum term) and then, much later on, into aggravated life imprisonment ( with no possibility of parole until the end of his life). 167. The applicant also contended that the social isolation to which he had been subjected had not been set out in any legislation and amounted to an infringement of his rights under Articles 6 and 7 of the Convention. 168. The Government contested that argument. They first of all affirmed that under the legislation in force before the applicant ’ s conviction, persons sentenced to the death penalty, where execution of the penalty had been formally rejected by Parliament, had been eligible for parole after a period of thirty -six years. However, Parliament had never taken a decision rejecting the execution of the death penalty imposed on the applicant. Under Law no. 4771 of 9 August 2002, Parliament had abolished the death penalty and replaced it with a “ reinforced life sentence ” that is to say a life sentence to last for the remainder of the person ’ s life without any possibility of parole. This principle had been followed in all the subsequent legislation on sentencing for crimes of terrorism ( including Law no. 5218, which had abolished the death penalty and amended a number of laws, the new Law no. 5275 on the execution of sentences and preventive measures, and Law no. 5532 amending specific provisions of the Anti - Terrorism Law ). The Government submitted that it had been clear to the applicant, at all stages in proceedings, that his conviction under Article 125 of the Criminal Code initially involved the death penalty and later on, following the abolition of this penalty, a life sentence without parole. B. The Court ’ s assessment ... 2. Merits ( a) General principles 171. The guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 in time of war or other public emergency. It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 92, 17 September 2009; S.W. v. the United Kingdom, 22 November 1995, § 34, Series A no. 335 ‑ B; and C.R. v. the United Kingdom, 22 November 1995, § 32, Series A no. 335 ‑ C). 172. Article 7 § 1 of the Convention does not confine itself to prohibiting the retrospective application of criminal law to the detriment of the defendant. It also embodies in general terms the principle that only the law can define a crime and prescribe a penalty ( nullum crimen, nulla poena sine lege ). While it prohibits in particular extending the scope of existing offences to acts which previously were not criminal offences, it also lays down the principle that the criminal law must not be extensively construed to an accused ’ s detriment, for instance by analogy ( see, among other authorities, Kafkaris v. Cyprus [GC], no. 21906/04, § 138, ECHR 2008, and Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 145, ECHR 2000 ‑ VII). 173. It follows that offences and the relevant penalties must be clearly defined by law. The Court must therefore verify that at the time when an accused person performed the act which led to his being prosecuted and convicted there was in force a legal provision which made that act punishable, and that the punishment imposed did not exceed the limits fixed by that provision ( see Scoppola (no. 2), cited above, § 95; Coëme and Others, cited above, § 145; and Achour v. France [GC], no. 67335/01, § 43, ECHR 2006 ‑ IV). 174. The term “law” implies qualitative requirements, including those of accessibility and foreseeability ( see Kafkaris, cited above, § 140, and E.K. v. Turkey, no. 28496/95, § 51, 7 February 2002). These qualitative requirements must be satisfied as regards both the definition of an offence and the penalty the offence carries ( see Achour, cited above, § 41). The individual must be able to know from the wording of the relevant provision and, if need be, with the assistance of the courts ’ interpretation of it, what acts and omissions will make him criminally liable ( see, among other authorities, Scoppola (no. 2), cited above, § 94; Kokkinakis v. Greece, 25 May 1993, § 52, Series A no. 260-A; and Cantoni v. France, 15 November 1996, § 29, Reports 1996 ‑ V). Furthermore, a law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail ( see, among other authorities, Cantoni, cited above, § 35, and Achour, cited above, § 54). 175. The Court notes that the principle of retrospectiveness of the more lenient criminal law, considered by the Court in Scoppola (no. 2), as guaranteed by Article 7, is embodied in the rule that where there are differences between the criminal law in force at the time of the commission of the offence and subsequent criminal laws enacted before a final judgment is rendered, the courts must apply the law whose provisions are most favourable to the defendant ( see Scoppola (no. 2), cited above, § 109). 176. In its decision in the case of Hummatov v. Azerbaijan ( ( dec. ), nos. 9852/03 and 13413/04, 18 May 2006), the Court approved the parties ’ shared opinion that a life sentence was not a harsher penalty than the death penalty. ( b) Application of these principles to the present case 177. The Court notes that the parties agree that on the date of their commission, the crimes of which the applicant was accused were subject to the death penalty under Article 125 of the Criminal Code, to which penalty the applicant was in fact sentenced. The legal basis for the applicant ’ s conviction and sentence was therefore the criminal law applicable at the material time, and his sentence corresponded to that prescribed in the relevant provisions of the Criminal Code ( see, to the same effect, Kafkaris, cited above, § 143). The Court also notes that the parties agree that life imprisonment is a more lenient penalty than the death penalty ( see, to the same effect, Hummatov, cited above ). 178. The parties ’ submissions primarily concern, first of all, the mode of execution of the death penalty before it was abolished, and secondly, the events following the commutation of the applicant ’ s death penalty to “ life imprisonment ”, and the interpretation of the latter sentence. 179. The Court will first of all examine whether the death penalty imposed on the applicant was equivalent from the outset to a prison sentence of a maximum of thirty -six years, owing to the moratorium on the enforcement of the death penalty in Turkey since 1984. 180. The Court reiterates that it has previously found that, since the applicant had been convicted of the most serious crimes contained in the Turkish Criminal Code, and given the general political controversy in Turkey – prior to the decision to abolish the death penalty – surrounding the question of whether he should be executed, it was not possible to rule out the possibility that the risk of the sentence being implemented was a real one. In fact, the risk remained until the Ankara National Security Court ’ s judgment of 3 October 2002 commuting the death penalty to which the applicant had been sentenced to life imprisonment ( see Öcalan, cited above, § 172). 181. Furthermore, the Court observes that, as the Government pointed out, under the legislation in force before the abolition of the death penalty in Turkey, persons sentenced to this penalty could be released on parole after a period of thirty -six years only where the enforcement of the said penalty had been formally rejected by Parliament. The fact is that the applicant ’ s death penalty was never submitted to Parliament for approval and was never the subject of a formal parliamentary decision rejecting it. It follows that the Court cannot accept the applicant ’ s contention that the penalty imposed on him had amounted, from the outset, to a thirty -six year prison sentence. 182. Secondly, the Court will consider the argument that the death penalty imposed on the applicant was commuted following the abolition of that penalty, first of all into an “ ordinary ” life sentence and then, much later and in breach of Article 7 of the Convention, into “ aggravated ” life imprisonment, without any possibility of parole. 183. On this matter, the Court notes first of all that the Turkish Criminal Code clearly prohibits retrospective application of a provision laying down a “ more severe penalty ” and the principle of retrospective enforcement of the “ more lenient penalty ”. 184. The Court will then consider whether the successive reforms of Turkish criminal legislation during the process of abolishing the death penalty cleared the way for allowing the applicant to be released after a specified period of imprisonment. 185. It notes that Law no. 4771 of 9 August 2002, which for the first time provided for the abolition of the death penalty and replaced it with life imprisonment, clearly states that this latter penalty must consist of actual incarceration of the sentenced persons for the remainder of his life, without any possibility of release on parole. The Court also notes that Law no. 5218 of 21 July 2004 on the abolition of the death penalty confirms the provisions of Law no. 4771, while also stipulating that the possibility of parole as provided for in the legislation on the enforcement of sentences does not apply to life sentences passed on persons who were initially sentenced to the death penalty for terrorist offences, and that such persons must serve their prison sentence until the end of their lives. The laws amending the Criminal Code and the Law on sentence enforcement only confirmed this principle. 186. It follows that, at the time of the abolition of the death penalty, no law or statute provided the applicant with the possibility of release on parole after a minimum period of incarceration. The fact that different terms ( reinforced life imprisonment, aggravated life imprisonment ) were used in the various laws on the matter does not alter this finding. 187. The Court will also consider the applicant ’ s complaint regarding the lack of legislation against the social isolation imposed on him up to 2009. It reiterates that the social isolation in question was not imposed under any decision taken by the authorities to confine the applicant in a cell in an ordinary prison, but rather resulted from a concrete situation, namely the fact that the applicant was the only inmate in the prison. This highly exceptional measure, which consisted in earmarking an entire prison for a single prisoner, did not form part of a detention regime geared to punishing the applicant more severely. It was motivated solely by the concern to protect the applicant ’ s life and to prevent the risk of escape linked to the conditions prevailing in ordinary prisons, including high- security establishments. The Court takes the view that this was such an extraordinary measure that a State could not be reasonably expected to provide details in its legislation on the regime to be applied in such cases. 188. Moreover, the applicant, who had been wanted for serious offences carrying the death penalty, did not contend before the Court that he could not have foreseen that he would be incarcerated under exceptional conditions should he be arrested. 189. In conclusion, the Court finds that there has been no violation of Article 7 of the Convention in the present case. IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE LIFE SENTENCE PASSED ON THE APPLICANT WITHOUT POSSIBILITY OF RELEASE ON PAROLE 190. The applicant submitted that his life sentence without parole, in conjunction with the social isolation imposed on him, constituted a violation of Article 3 or Article 8 of the Convention. He also stated that a life sentence which took no account of the prisoner ’ s possible good conduct or rehabilitation, associated with a strict prison regime, attained the level of severity required by Article 3 of the Convention to constitute inhuman punishment. 191. The Government contested that argument. They referred to the nature of the crimes of which the applicant had been convicted and stressed the applicant ’ s overriding responsibility for the campaign of violence which his former organisation had conducted and which had claimed the lives of thousands of individuals, including many innocent civilian victims. The Government reiterated that the applicant had been sentenced to the death penalty, which the Turkish legislature had subsequently commuted into life imprisonment without parole. As regards the allegation concerning social isolation, the Government affirmed that the applicant was receiving visits and engaging in collective activities with the other prisoners within the limits permitted by the legislation applicable to this category of prisoner ( the fact that he had initially been the only inmate of İmralı Prison had not been the result of any decision to isolate him but had been geared solely to protecting his life ). According to the Government, the applicant had been subjected to disciplinary sanctions – for transmitting messages to a terrorist organisation or for any other disciplinary offence – in exactly the same way as all the other prisoners. ... B. Merits 193. The Court reiterates that the imposition of a life sentence on an adult offender is not in itself prohibited by or incompatible with Article 3 or any other Article of the Convention ( see Vinter and Others v. the United Kingdom [GC], nos. 66069/09, 130/10 and 3896/10, § 106, ECHR 2013 ( extracts ), and Kafkaris, cited above, § 97). 194. At the same time, the imposition of an irreducible life sentence on an adult may raise an issue under Article 3 (see Vinter and Others [GC], cited above, § 107; Nivette v. France (dec.), no. 44190/98, ECHR 2001 ‑ VII; Stanford v. the United Kingdom (dec.), no. 73299/01, 12 December 2002; and Wynne v. the United Kingdom (dec.), no. 67385/01, 22 May 2003). 195. However, a life sentence does not become irreducible by the mere fact that in practice it may be served in full. As the Court pointed out in its Vinter and Others judgment (§ 108): “ ... no Article 3 issue could arise if, for instance, a life prisoner had the right under domestic law to be considered for release but was refused on the ground that he or she continued to pose a danger to society. This is because States have a duty under the Convention to take measures for the protection of the public from violent crime and the Convention does not prohibit States from subjecting a person convicted of a serious crime to an indeterminate sentence allowing for the offender ’ s continued detention where necessary for the protection of the public (see, mutatis mutandis, T. v. the United Kingdom, § 97, and V. v. the United Kingdom, § 98, both cited above). Indeed, preventing a criminal from re-offending is one of the ‘ essential functions ’ of a prison sentence (see Mastromatteo v. Italy [GC], no. 37703/97, § 72, ECHR 2002 ‑ VIII; Maiorano and Others v. Italy, no. 28634/06, § 108, 15 December 2009; and, mutatis mutandis, Choreftakis and Choreftaki v. Greece, no. 46846/08, § 45, 17 January 2012). This is particularly so for those convicted of murder or other serious offences against the person. The mere fact that such prisoners may have already served a long period of imprisonment does not weaken the State ’ s positive obligation to protect the public; States may fulfil that obligation by continuing to detain such life sentenced prisoners for as long as they remain dangerous (see, for instance, Maiorano and Others, cited above). ” 196. In fact, in determining whether a life sentence in a given case can be regarded as irreducible, the Court has sought to ascertain whether a life prisoner can be said to have any prospect of release. Analysis of Court case-law on this point shows that where national law affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, this will be sufficient to satisfy Article 3 ( see Vinter and Others [GC], cited above, § § 108 and 109). 197. In its Grand Chamber judgment in the case of Vinter and Others, the Court set out the main reasons why, in order to remain compatible with Article 3, a life sentence must provide both a prospect of release and a possibility of review : “ 111. It is axiomatic that a prisoner cannot be detained unless there are legitimate penological grounds for that detention. As was recognised by the Court of Appeal in Bieber and the Chamber in its judgment in the present case, these grounds will include punishment, deterrence, public protection and rehabilitation. Many of these grounds will be present at the time when a life sentence is imposed. However, the balance between these justifications for detention is not necessarily static and may shift in the course of the sentence. What may be the primary justification for detention at the start of the sentence may not be so after a lengthy period into the service of the sentence. It is only by carrying out a review of the justification for continued detention at an appropriate point in the sentence that these factors or shifts can be properly evaluated. 112. Moreover, if such a prisoner is incarcerated without any prospect of release and without the possibility of having his life sentence reviewed, there is the risk that he can never atone for his offence: whatever the prisoner does in prison, however exceptional his progress towards rehabilitation, his punishment remains fixed and unreviewable. If anything, the punishment becomes greater with time: the longer the prisoner lives, the longer his sentence. Thus, even when a whole life sentence is condign punishment at the time of its imposition, with the passage of time it becomes – to paraphrase Lord Justice Laws in Wellington – a poor guarantee of just and proportionate punishment ... 113. Furthermore, as the German Federal Constitutional Court recognised in the Life Imprisonment case ..., it would be incompatible with the provision on human dignity in the Basic Law for the State forcefully to deprive a person of his freedom without at least providing him with the chance to someday regain that freedom. It was that conclusion which led the Constitutional Court to find that the prison authorities had the duty to strive towards a life sentenced prisoner ’ s rehabilitation and that rehabilitation was constitutionally required in any community that established human dignity as its centrepiece. Indeed, the Constitutional Court went on to make clear in the subsequent War Criminal case that this applied to all life prisoners, whatever the nature of their crimes, and that release only for those who were infirm or close to death was not sufficient ... Similar considerations must apply under the Convention system, the very essence of which, as the Court has often stated, is respect for human dignity (see, inter alia, Pretty v. the United Kingdom, no. 2346/02, § 65, ECHR 2002 ‑ III, and V.C. v. Slovakia, no. 18968/07, § 105, ECHR 2011 ) .” 198. In the same judgment ( Vinter and Others ), the Court, having considered the relevant European and international material which currently confirms the principle that all prisoners, including those serving life sentences, must have a possibility of reforming and rehabilitating and the prospect of release if such rehabilitation is achieved, drew a number of specific conclusions on life sentencing in the light of Article 3: “ 119. ... the Court considers that, in the context of a life sentence, Article 3 must be interpreted as requiring reducibility of the sentence, in the sense of a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds. 120. However, the Court would emphasise that, having regard to the margin of appreciation which must be accorded to Contracting States in the matters of criminal justice and sentencing ..., it is not its task to prescribe the form (executive or judicial) which that review should take. For the same reason, it is not for the Court to determine when that review should take place. This being said, the Court would also observe that the comparative and international law materials before it show clear support for the institution of a dedicated mechanism guaranteeing a review no later than twenty-five years after the imposition of a life sentence, with further periodic reviews thereafter ... 121. It follows from this conclusion that, where domestic law does not provide for the possibility of such a review, a whole life sentence will not measure up to the standards of Article 3 of the Convention. 122. Although the requisite review is a prospective event necessarily subsequent to the passing of the sentence, a whole life prisoner should not be obliged to wait and serve an indeterminate number of years of his sentence before he can raise the complaint that the legal conditions attaching to his sentence fail to comply with the requirements of Article 3 in this regard. This would be contrary both to legal certainty and to the general principles on victim status within the meaning of that term in Article 34 of the Convention. Furthermore, in cases where the sentence, on imposition, is irreducible under domestic law, it would be capricious to expect the prisoner to work towards his own rehabilitation without knowing whether, at an unspecified, future date, a mechanism might be introduced which would allow him, on the basis of that rehabilitation, to be considered for release. A whole life prisoner is entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought. Consequently, where domestic law does not provide any mechanism or possibility for review of a whole life sentence, the incompatibility with Article 3 on this ground already arises at the moment of the imposition of the whole life sentence and not at a later stage of incarceration. ” 199. In the instant case, the Court first of all reiterates its above- mentioned finding that since 17 November 2009, the applicant ’ s relative social isolation – which has been gradually reduced thanks to the improvements made by the Government in line with the CPT ’ s recommendations – has not attained the level of severity required to constitute a violation of Article 3 of the Convention. 200. It remains to be determined whether, in the light of the foregoing observations, the life sentence without parole imposed on the applicant can be regarded as irreducible for the purposes of Article 3 of the Convention. 201. The Court reiterates that the applicant was initially sentenced to capital punishment, for particularly serious crimes, namely having organised and conducted an unlawful armed campaign which caused a great many deaths. Following the promulgation of a law abolishing the death penalty and replacing death sentences which had already been imposed with sentences to aggravated life imprisonment, the applicant ’ s sentence was commuted by decision of the Assize Court, applying the new legal provisions, to aggravated life imprisonment. Such a sentence means that the applicant will remain in prison for the rest of his life, regardless of any consideration relating to his dangerousness and without any possibility of parole, even after a specific period of incarceration ( see paragraph 182 above regarding the Court ’ s findings on the complaints under Article 7 of the Convention). 202. The Court notes in that connection that section 107 of Law no. 5275 on the enforcement of sentences and security measures clearly excludes the applicant ’ s case from the scope of release on parole, as he was convicted of crimes against the State under a provision of the Criminal Code ( Book 2, Chapter 4, sub -chapter 4 ). It also notes that under Article 68 of the Criminal Code the sentence imposed on the applicant is one of the exceptions which are not subject to the statute of limitations. As a result, current legislation in Turkey clearly prohibits the applicant, in his capacity as a person sentenced to aggravated life imprisonment for a crime against the security of the State, from applying, at any time while serving his sentence, for release on legitimate penological grounds. 203. Furthermore, it is true that under Turkish law, in the event of the illness or old age of a life prisoner, the President of the Republic may order his immediate or deferred release. Nevertheless, the Court considers that release on humanitarian grounds does not correspond to the concept of “ prospect of release ” on legitimate penological grounds ( see, to similar effect, Vinter and Others, § 129). 204. It is also true that the Turkish legislature has, at fairly regular intervals, adopted general or partial amnesty laws ( the latter type of law grants release on parole after a minimum term ) in order to help resolve major social problems. However, there is no evidence before the Court that such a plan is being prepared by the Government to provide the applicant with a prospect of release. The Court must concern itself with the law as applied in practice to prisoners sentenced to aggravated life imprisonment. That legislation is characterised by a lack of any mechanism for reviewing, after a specified minimum term of incarceration, life sentences imposed for crimes such as those committed by the applicant with a view to verifying the persistence of legitimate reasons for continuing his incarceration. 205. As regards the argument that the applicant was sentenced to life imprisonment without parole because he had committed particularly serious terrorist crimes, the Court reiterates that the provisions of Article 3 of the Convention allow for no derogation and prohibit inhuman or degrading punishment in absolute terms (see paragraphs 97-98 above). 206. In the light of these findings, the Court considers that the life sentence imposed on the applicant cannot be deemed reducible for the purposes of Article 3 of the Convention. It concludes that in this context the requirements of this provision were not fulfilled in respect of the applicant. 207. There has accordingly been a violation of Article 3 of the Convention on this point. Nevertheless, the Court considers that this finding of a violation cannot be understood as giving the applicant the prospect of imminent release. The national authorities must review, under a procedure to be established by adopting legislative instruments and in line with the principles laid down by the Court in paragraphs 111 ‑ 113 of its Grand Chamber judgment in the case of Vinter and Others ( quoted in paragraph 194 of this judgment ), whether the applicant ’ s continued incarceration is still justified after a minimum term of detention, either because the requirements of punishment and deterrence have not yet been entirely fulfilled or because the applicant ’ s continued detention is justified by reason of his dangerousness. ... | The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention as to the conditions of the applicant’s detention up to 17 November 2009 and that there had been no violation of Article 3 as regards the conditions of his detention during the period subsequent to that date. On the one hand, in view of a certain number of aspects, such as the lack of communication facilities that would have overcome the applicant’s social isolation, together with the persisting major difficulties for his visitors to gain access to the prison, the Court found that the conditions of detention imposed on the applicant up to 17 November 2009 had constituted inhuman treatment. On the other hand, having regard in particular to the arrival of other detainees at the İmralı prison and to the increased frequency of visits, it came to the opposite conclusion as regards his detention subsequent to that date. The Court also held that there had been a violation of Article 3 as regards the applicant’s sentence to life imprisonment without any possibility of conditional release, finding that, in the absence of any review mechanism, the life prison sentence imposed on the applicant constituted an “irreducible” sentence that amounted to inhuman treatment. The Court further held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention, considering that in view of the Turkish Government’s legitimate fear that the applicant might use communications with the outside world to contact members of the PKK, the restrictions on his right to respect for private and family life had not exceeded what was necessary for the prevention of disorder or crime. |
574 | Cases in which the Court found no violation of Article 4 of Protocol No. 4 | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Police Corps Act 1993 (Law no. 171/1993 Coll., as amended) 19. Section 17(1) authorises the police to seek explanations, where required, from anyone who can contribute to the clarification of facts that are of importance in uncovering a misdemeanour or administrative offence and the perpetrator thereof, or facts of importance in tracking down missing or wanted persons or items. 20. Under sections 18(3) and (4), the police can take a person to a police station for the purposes of verifying his or her identity if that person is unable to credibly prove his or her name and surname, date of birth and place of residence. B. Asylum Act (Law no. 480/2002 Coll., as amended) 21. Under section 3(1), asylum proceedings are launched by means of a declaration by the individual concerned to the relevant police department that he or she is applying for asylum or subsidiary protection on the territory of the Slovak Republic. Section 3(2)(b) provides that if a foreigner requests asylum after entering the territory of the Slovak Republic, the authority authorised to receive the asylum request is the police office established within the asylum facility. Under section 3(8), if a foreigner applies for asylum at a police office that does not have authority to receive an asylum request, that police office is obliged to inform the applicant of the relevant police office and provide him or her with a travel document valid for twenty-four hours; alternatively, it may decide that he or she should be detained. C. Aliens Act (Law no. 404/2011 Coll., as amended) 22. Under section 77 § 2, the collective expulsion of foreigners on the basis of one single decision is inadmissible. 23. Section 81 enumerates the obstacles to administrative expulsion. Under section 81(1), it is not possible to expel an alien to a country where his life would be at risk on the grounds of race, nationality, religion, or association with a social group or political conviction, or where he would be at risk of torture or of cruel, inhuman or degrading treatment or punishment. It is also not possible to expel an alien to a country that has imposed on him the death penalty or where he can be expected to receive such a sentence in pending criminal proceedings. Under section 81(2), an alien cannot be expelled to a country where his liberty would be at risk on the grounds of race, nationality, religion, or association with a social group or political conviction; this does not apply if, by his behaviour, the alien puts national security at risk or if he has been convicted of a criminal offence and represents a danger to Slovakia. Under section 81(4), an alien cannot be expelled to a country where he would be at risk of a forced return to [his or her country of origin], as described in section 81(1) and (2). 24. Section 82(1 )( a) provides that the border police can authorise the administrative expulsion of a third-country national if he or she has irregularly crossed the external border, or if he or she intentionally avoids or refuses to undergo border control checks when crossing the external border. 25. Under section 83(1) and (2), a third-country national in respect of whom an administrative expulsion decision has been rendered is obliged to leave the territory within the period allowed for voluntary departure set out in the expulsion decision (which should fall between seven and thirty days of that decision gaining force). If it is deemed likely that the person in question might escape or otherwise obstruct or hinder the exercise of the administrative expulsion – and in particular if the person ’ s identity cannot be verified, or if the third-country national threatens the State ’ s security, public order, public health or the rights and freedoms of others – the police need not stipulate any deadline in respect of voluntary departure. D. Administrative Proceedings Act (Law no. 71/1967 Coll., as amended) 26. An appeal can be lodged against an administrative expulsion decision within fifteen days of the person concerned being notified thereof (sections 53 and 54(2)). 27. Under section 55(2), an appeal lodged against an administrative decision before the expiry of the relevant time-limit has suspensive effect, unless provided otherwise. The administrative authority may exclude the suspensive effect only if the urgent public interest so requires, or if there is a risk that by suspending the enforcement of a decision a party to the proceedings or a third person might suffer irreparable damage. III. Relevant international documents 28. The relevant international documents are listed in Sharifi and Others v. Italy and Greece (no. 16643/09, §§ 51-82, 21 October 2014) and in N.D. and N.T. v. Spain ( [GC], nos. 8675/15 and 8697/15, §§ 41-67). 29. In a 124-page report published in December 2010 entitled “ Buffeted in the Borderland. The Treatment of Asylum Seekers and Migrants in Ukraine ”, the NGO Human Rights Watch described the findings of its research into the experience of migrants and asylum seekers who had been returned to Ukraine from Hungary and Slovakia. The report states that “according to the bilateral agreements, migrants caught entering Poland, Slovakia and Hungary without permission can be summarily returned if caught within 48 hours of a crossing. The launching of an appeal in Slovakia and Hungary does not suspend the return and returnees do not have access to minimal information on arrest and return. In practice, Human Rights Watch found that migrants were often tricked into believing they would not be returned, were asked to sign papers they did not understand, and were not always given an opportunity to contact a lawyer, NGOs or UNHCR.” Specifically with regard to Slovakia, Human Rights Watch stated that “the most common complaint heard from migrants who had been returned from Slovakia was that their asylum claims were ignored and that they were treated in summary fashion [and] quickly sent back within hours of apprehension in Slovakia, with little opportunity to make any claim to remain. THE LAW I. PRELIMINARY ISSUES RAISED BY THE GOVERNMENT A. The applicants ’ whereabouts and loss of contact with their legal representative 1. Parties ’ arguments 30. The Government maintained that from the very beginning the applicants ’ legal representative had been able to communicate with them only through staff of the NGO in Ukraine, and that the Slovak branch of the Human Rights League had exerted extreme pressure on the applicants in order to secure their consent for it to lodge the application with the Court. While it was true that the applicants had authorised a lawyer from that NGO to represent them before the Court, they had not contacted her thereafter to inform her of their whereabouts or to provide her with a means of contacting them, which indicated that they had lost interest in the case. In additional observations, the Government maintained that the applicants ’ representative was not able to contact them in a standard manner, that the elements produced by the applicants ’ representative were of no probative value and that messages sent within their Facebook group could not be accepted in the proceedings before the Court; moreover, the whereabouts of applicants nos. 3, 9, 11, 15 and 16 still remained unknown (see paragraph 18 above). 31. In such circumstances, given that the fact that the relevant authorisation forms have been correctly completed does not in itself justify pursuing the examination of the case (see Ramzy v. the Netherlands, no. 25424/05, § 64, 20 July 2010), the Government considered that the application should be struck out of the Court ’ s list of cases, in accordance with Article 37 § 1 of the Convention. 32. In reply, the applicants ’ representative submitted information regarding the applicants ’ current whereabouts (including, in respect of some of them, copies of their identity documents and links to their respective Facebook accounts) and their claims for just satisfaction (see paragraph 18 above). She noted that she was in contact with most of them via Facebook, within a dedicated group that she had created. She also pointed to the applicants ’ vulnerable situation, their limited access to means of communication and – in some cases – their poor command of English, which may have resulted in delays to their replies to her messages or in a need to rely on others to facilitate communication. 33. Furthermore, the applicants ’ representative informed the Court that the thirteenth and fourteenth applicants, Mr Salman Faqiri and his brother, Mr Sohrab Faqiri, were no longer interested in pursuing the proceedings and wished their applications to be struck out of the Court ’ s list of cases. 2. The Court ’ s assessment 34. The Court considers it necessary first to examine the criteria set forth in Article 37 of the Convention, which reads as follows: “1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that (a) the applicant does not intend to pursue his application; or (b) the matter has been resolved; or (c) for any other reason established by the Court, it is no longer justified to continue the examination of the application. However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires. 2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.” 35. On the one hand, the Court reiterates that an applicant ’ s representative must not only supply a power of attorney or written authority (Rule 45 § 3 of the Rules of Court) but that it is also important that contact between the applicant and his or her representative be maintained throughout the proceedings. Such contact is essential both in order to learn more about the applicant ’ s particular circumstances and to confirm the applicant ’ s continuing interest in pursuing the examination of his or her application (see V.M. and Others v. Belgium ([GC], no. 60125/11, § 35, 17 November 2016, with further references; N.D. and N.T. v. Spain [GC], cited above, § 72 ). 36. On the other hand, in cases concerning a context similar to that of the instant, the Court has held that it cannot ignore the generally precarious conditions of asylum seekers and other events that may temporarily prevent communication between a legal representative and applicants (see Sharifi and Others v. Italy and Greece (no. 16643/09, § 131, 21 October 2014 ). Thus, the Court has accepted contact between a legal representative and applicants that took place via third persons if such contact was regular and substantiated by relevant documents (ibid. , § 130). However, the Court has struck out applications for lack of contact between the applicants and their legal representative where information about the applicants ’ whereabouts or the circumstances of the contact appeared insufficient, contradictory or unsubstantiated ( ibid. , §§ 129, 133). By way of example, the Court has considered proof of contact to be unsubstantiated when applicants or their legal representative have failed to provide any document proving their legal status, or when they have provided only a link to the Facebook account of the applicant without any further explanation (ibid. , § 129). 37. Turning to the facts of the present case, the Court observes that the applicants ’ legal representative has never met the applicants in person and that contact between the applicants and their representative was initially facilitated by lawyers visiting the detention centre in Ukraine at which they were being held. The latter secured the applicants ’ signatures on the authorisation forms and forwarded them to the legal representative in Slovakia, who then lodged the application with the Court. The Court notes that the authenticity of those authorisation forms has not been challenged by the Government and that nothing in the file raises any concerns about their validity. 38. While it is true that the applicants ’ representative thus has power to represent them throughout the entire proceedings before the Court, the Court must nevertheless examine whether the subsequent contacts between the applicants and their representatives justify pursuing the examination of the case. In exercising such an examination, the Court does not lose sight of the complicated situation both of those applicants who seek asylum in Europe and those applicants who have returned to Afghanistan. It is therefore ready to accept that they may not be able to communicate with their legal representative regularly and via traditional means ( ibid., mutatis mutandis, § 131,). 39. In this context, the Court observes, firstly, that the thirteenth and fourteenth applicants expressly stated that they no longer wished to pursue the proceedings. In so far as it concerns these two applicants, the application is to be struck out of the list of cases, pursuant to Article 37 § 1 (a) of the Convention. 40. The Court notes, secondly, that applicants nos. 3, 9, 11, 15 and 16, whose whereabouts are unknown, have not attempted to contact their legal representative or the Court, and neither have they demonstrated in any way their interest in continuing the case. With regard to applicants nos. 1, 2, 17, 18 and 19, the legal representative provided the Court only with the name of their country of residence and a link to their respective Facebook accounts; with regard to applicants nos. 1 and 19, the representative explained that they were members of the above-mentioned dedicated Facebook group and that they had been in indirect contact with her via third persons (see paragraph 18 above). The Court observes, however, that the sole fact that a Facebook account exists under the applicant ’ s name or a similar name does not necessarily prove that there has been any real contact between the applicant and his or her representative through the means provided by that account, especially if no extract of any such conversation has been submitted. In the Court ’ s view, such information is insufficient to establish that the above applicants did indeed maintain contact with their legal representative ( ibid., §§ 129 and 133) and to conclude that the latter could meaningfully continue the proceedings before the Court in respect of those applicants. Having regard to the foregoing and in accordance with Article 37 § 1 (c) of the Convention, the Court considers that it is no longer justified to continue the examination of the application as regards applicants nos. 1, 2, 3, 9, 11, 15, 16, 17, 18 and 19. It points out that the complaints initially lodged by those applicants are identical to those submitted by the remaining applicants, in respect of which it will express its opinion below. Given the circumstances, the Court sees no grounds relating to respect for human rights secured by the Convention and its Protocols that, under Article 37 § 1 in fine, would require the continuation of the examination of the applications of the above-mentioned ten applicants. 41. Lastly, with regard to applicants nos. 4, 5, 6, 7, 8, 10 and 12, the legal representative informed the Court of their respective current places of residence and their residency status; most of them also provided copies of their personal documents. It furthermore appears from the extracts from the Facebook messages exchanged between them and their representative submitted by the legal representative that they have specified just satisfaction claims; applicant no. 10 also provided his bank account details. The Court accepts that such information is sufficient to establish that the above applicants have maintained contact with their legal representative and that they have an interest in pursuing the case before the Court. The Court therefore rejects the Government ’ s objection as to those seven applicants. 42. In conclusion, the Court decides to strike the case out of the list in so far as it concerns applicants nos. 1, 2, 3, 9, 11, 13, 14, 15, 16, 17, 18 and 19, and to pursue the examination of the remainder of the application. B. Exhaustion of domestic remedies 43. The Government pointed out that only the first four applicants had lodged appeals against the decisions on administrative expulsion. None of the other applicants had used this remedy, despite having been detained in the same centre at the time that applicants nos. 1-4 had signed the authorisation forms for the purpose of the appeal proceedings, and despite having authorised Ms Z. Števulová to represent them before the Court. 44. The applicants replied that, as can be seen from her email communication with the lawyers in Ukraine, their Slovak legal representative was prepared to lodge appeals on behalf of all of them. However, the Ukrainian lawyers were able to meet only four of them in the Chop detention centre before the expiration of the fifteen-day time-limit set for lodging an appeal (the deadline being 2 December 2014), and they had not themselves been in a position to contact a Slovak lawyer. They had all been able to meet a lawyer only in the detention centre in Zhuravychi between 12 December 2014 and 5 January 2015, when it was no longer possible to lodge an appeal; thus, they could then sign only the authorisation forms for the proceedings before the Court. In any event, the applicants contested the effectiveness and accessibility of the impugned remedy since, firstly, they had received neither a copy of the decision in question nor a translation thereof and, secondly, any ex post remedy would have had no practical effect on their expulsion, and nor would it have offered them a possibility to re-enter the country. 45. The Court notes that the applicants nos. 5, 6, 7, 8, 10 and 12 did not lodge an appeal against the decisions on their expulsion. However, having regard to the contents of the police directorate ’ s decisions of 7 January 2015 dismissing the appeals of the applicants nos. 1 to 4, there is nothing to suggest that, had the former applicants also filed an appeal, the decisions in their cases would have been any different from those in the cases of the latter applicants. In these circumstances, and taking into account the difficulties faced by the applicants to access a lawyer after their removal to Ukraine, the Court is of the view that those applicants were not required to exhaust the remedy referred to by the Government. The Government ’ s preliminary objection must therefore be dismissed. II. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 4 TO THE CONVENTION 46. The applicants 4, 5, 6, 7, 8, 10 and 12 submitted that they had been victims of a collective expulsion. They relied on Article 4 of Protocol No. 4 to the Convention, which reads as follows: “Collective expulsion of aliens is prohibited.” A. Admissibility 47. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicants 48. The applicants complained that their expulsion to Ukraine had been collective in nature and, in particular, that the State authorities had not carried out an individual assessment and examination of their cases, since all the expulsion decisions had had the same wording. They had had no access to information, proper interpretation, legal aid or the assistance of UNHCR. In addition, they claimed that either their asylum claims had been ignored or the interpreter had not translated them, and that they had thus been denied access to the asylum procedure. 49. The applicants were of the view that they had been dealt with as a group, not as individuals, and that the transcripts of their interviews indeed showed that they had not been interviewed separately since the official times of the respective interviews had overlapped in several cases, even though only one interpreter had been present. Moreover, the fact that the interpreter had been there for only a few hours meant that it had not been possible to properly examine each individual case. Furthermore, the applicants pointed out that they must have been interviewed under extreme time constraints, since within ten minutes they were supposed to have been briefed about the procedure and their rights and then interviewed – all allowing extra time for interpretation. In their view, the police had been in a position to invest more time and effort into examining each individual case – specifically, the police officers should have asked open questions (that is to say questions not requiring simple “yes” or “no” answers) about the reasons for the applicants leaving their home country and the factors preventing their return, and they should have made more effort to encourage the applicants to enlarge upon their answers. 50. As to the Government ’ s argument concerning possible errors in noting the starting and ending times of the interviews and the length of their duration, the applicants asserted that they should be given the benefit of the doubt because they were in a vulnerable position and unable to collect evidence regarding the exact course of events. It was indeed the police who had been in control of the recording of their interviews and the documentation thereof, and it had been the police ’ s obligation to make precise recordings of those interviews; therefore, the transcriptions of those interviews should be relied on. 51. Thus the applicants claimed that they had not been allowed to actively participate in the procedure and had not been offered an individual and effective opportunity to put forward individualised details and arguments against their expulsion, as required by the Court ’ s case-law (see Sultani v. France, no. 45223/05, § 81, ECHR 2007 ‑ IV (extracts), and Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, §§ 177 and 184, ECHR 2012). 52. Concerning the Government ’ s argument regarding the police ’ s “longstanding experience” of interviewing illegal migrants, the applicants considered that this was a further indication of collective treatment. The statements of the police only confirmed the tendency to generalise as regards the behaviour of migrants apprehended at the Slovak-Ukrainian border, regardless of their individual circumstances. The applicants also emphasised in that regard that they had been complaining about their collective expulsion ever since their first meeting with the Ukrainian lawyers. 53. Lastly, the applicants argued that the cases (referred to by the Government) of Sultani (cited above) and M.A. v. Cyprus (no. 41872/10, ECHR 2013 (extracts) – see paragraph 56 below) substantially differed from the present case. In M.A, the asylum claims of all the applicants had been dealt with on an individual basis over a period of more than five years and their appeals had been individually examined. By contrast, in the present case the applicants had been physically expelled from Slovak territory within twenty-four hours of their arrival, their asylum applications had been ignored and their arguments against expulsion had not been addressed. The fact that twelve other persons had been channelled into the asylum procedure did not prove, in the applicants ’ view, that their cases had been examined individually or that they had not been denied access to the asylum procedure. (b) The Government 54. The Government referred to the transcripts of the interviews and submitted that the applicants had been interviewed separately and with the help of an interpreter, which was attested to by their signatures on those transcripts. The applicants had each been individually familiarised with their respective case files and the reasons for their expulsion and the ban on their re-entering Slovakia, and each of them had been handed a copy of the expulsion decision, their receipt of which they had confirmed by signing it in the presence of the interpreter. In that regard, the Government submitted a fee invoice from the interpreter, according to which he had been present at the police station from 9 a.m. on 17 November 2014 until 9 a.m. on 18 November 2014. 55. The Government conceded that written errors could have occurred in the “course of recording the interviews” because those interviews had been conducted during the night and early morning hours. As to the identical wording of the transcripts, they submitted that in the longstanding experience of the police, irregular migrants – especially those arriving in Slovakia in an organised fashion with the help of smugglers – tended during interviews to cite identical facts and motives in respect of their irregular border-crossing, and they sometimes changed their statements when meeting a non-governmental organisation after readmission to Ukraine. In the present case, the identical wording of the applicants ’ statements would have been a consequence of them having travelled as a group; it did not constitute proof of a collective approach on the part of the police, but was rather the reason for the similar wording of the expulsion decisions. Indeed, the fact that the transcripts differed in respect of the amounts of money cited as being possessed by the applicants showed that the police had treated them individually. 56. According to the Government, the applicants had been duly instructed regarding the possibility to request legal aid and had had the opportunity to claim asylum during their stay at the police station. They pointed out that twelve Afghan members from the group who had requested asylum had been transported to a refugee camp, rather than being returned to Ukraine. That proved that the applicants had not been prevented from accessing the asylum procedure (see, mutatis mutandis, M. A. v. Cyprus, cited above, §§ 252-255). Lastly, the Government emphasised that, after being asked clear and comprehensible questions by the police officers, none of the applicants had mentioned having been subjected to any form of persecution in their home country, so there had been no need to put further questions to them. Neither had the appeals lodged by four of the applicants contained any allegation of persecution. 2. The Court ’ s assessment (a) Principles established in the Court ’ s case-law 57. The Court points to its case-law concerning Article 4 of Protocol No. 4, as set out, with regard to migrants and asylum-seekers, in the judgments in Hirsi Jamaa and Others, Sharifi and Others, and Khlaifia and Others (all cited above). According to that case-law, an expulsion is deemed to be “collective” for the purposes of Article 4 of Protocol No. 4 if it compels aliens, as a group, to leave a country, “except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group” (see Khlaifia and Others, cited above, §§ 237 et seq.; Georgia v. Russia (I), cited above, § 167; Andric v. Sweden ( dec. ), no. 45917/99, 23 February 1999; Davydov v. Estonia ( dec. ), no. 16387/03, 31 May 2005; Sultani v. France, no. 45223/05, § 81, ECHR 2007-IV (extracts); and Ghulami v. France ( dec. ), no. 45302/05, 7 April 2009). The fact that a number of aliens are subject to similar decisions does not in itself lead to the conclusion that there is a collective expulsion, if each person concerned has been given the opportunity to put arguments against his or her expulsion to the competent authorities on an individual basis (see Khlaifia and Others, cited above, § 239; see also M.A. v. Cyprus, no. 41872/10, §§ 246 and 254, ECHR 2013 (extracts); Sultani, cited above, § 81; Hirsi Jamaa and Others, cited above, § 184; and Georgia v. Russia (I), cited above, § 167). However, Article 4 of Protocol No. 4 does not guarantee the right to an individual interview in all circumstances, as the requirements of this provision may be satisfied where each alien has a genuine and effective possibility of submitting arguments against his or her expulsion, and where those arguments are examined in an appropriate manner by the authorities of the respondent State (see Khlaifia and Others, cited above, § 248; N.D. and N.T. v. Spain, cited above, §§ 193 and 199). 58. Article 4 of Protocol No. 4 is aimed at maintaining the possibility, for each of the aliens concerned, to assert a risk of treatment which is incompatible with the Convention – and in particular with Article 3 – in the event of his or her return and, for the authorities, to avoid exposing anyone who may have an arguable claim to that effect to such a risk (see N.D. and N.T. v. Spain, cited above, § 198). The purpose of Article 4 of Protocol No. 4 is thus to prevent States from removing a number of aliens without examining their personal circumstances and therefore without enabling those aliens to put forward their arguments against the measure taken by the relevant authority in question (see Hirsi Jamaa and Others, cited above, § 177, and Sharifi and Others, cited above, § 210). In order to determine whether there has been a sufficiently individualised examination, it is necessary to consider the circumstances of the case and to verify whether the removal decisions took into consideration the specific situation of the individuals concerned (see Hirsi Jamaa and Others, cited above, § 183; N.D. and N.T. v. Spain, cited above, § 197). 59. It should be stressed at the outset that as a matter of well-established international law, and subject to their treaty obligations, including those arising from the Convention, Contracting States have the right to control the entry, residence and removal of aliens (see, among many other authorities, Paposhvili, cited above, § 172; Hirsi Jamaa and Others, cited above, § 113; Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94; Boujlifa v. France, 21 October 1997, § 42, Reports 1997-VI; and N. v. the United Kingdom [GC], no. 26565/05, § 30, ECHR 2008). The Court also reiterates the right of States to establish their own immigration policies, potentially in the context of bilateral cooperation or in accordance with their obligations stemming from membership of the European Union (see Georgia v. Russia (I), cited above, § 177; Sharifi and Others, cited above, § 224; and Khlaifia and Others, cited above, § 241). Furthermore, the Court has previously emphasised the challenges facing European States in terms of immigration control as a result of the economic crisis and recent social and political changes which have had a particular impact on certain regions of Africa and the Middle East (see M.S.S. v. Belgium and Greece, cited above, § 223; Hirsi Jamaa and Others, cited above, §§ 122 and 176; and Khlaifia and Others, cited above, § 241). Nevertheless, the Court has also stressed that the problems which States may encounter in managing migratory flows or in the reception of asylum-seekers cannot justify recourse to practices which are not compatible with the Convention or the Protocols thereto (see Hirsi Jamaa and Others, cited above, § 179; N.D. and N.T. v. Spain, cited above, § 170). (b) Application of those principles in the present case 60. In the present case, it is not disputed that the applicants were expelled after they had irregularly entered Slovak territory and that they were returned to Ukraine; this clearly amounts to an “expulsion” within the meaning of Article 4 of Protocol No. 4 as interpreted by the Court (see, most recently, N.D. and N.T. v. Spain, cited above, §§ 166-191). The Court is thus called to ascertain whether the applicants ’ expulsion was “collective” in nature. 61. The Court observes that the applicants have not disputed the fact that, after being brought to the police station for the purposes of their identification, they underwent interviews, following which a separate administrative decision was made in respect of each of them. It is true, as the applicants pointed out, that the expulsion decisions were drafted in almost identical terms. However, according to the case-law cited in paragraph 57, this fact cannot in itself be decisive. In the Court ’ s view, the relatively simple and standardised nature of the expulsion orders can be explained by the fact that the transcripts of the applicants ’ interviews do not contain any statement regarding any possible ill-treatment in the event of their readmission to Ukraine or regarding the existence of any other legal obstacles to their expulsion. It is therefore not unreasonable for those orders to have been justified merely by the fact that the applicants were third-country nationals who had committed an administrative offence by unlawfully crossing the Slovak border, and by the absence of any of the situations provided in section 81 of the Aliens Act (see paragraph 10 above). 62. The Court notes that, although the applicants had crossed the Slovak border in an unauthorised manner, they were intercepted in the territory of Slovakia and the State provided them access to means of legal entry through the appropriate border procedure (see, conversely, N.D. and N.T. v. Spain, cited above). It thus remains to be established whether the applicants were afforded, prior to the adoption of the impugned expulsion orders, an effective possibility of submitting arguments against their removal and whether there were sufficient guarantees demonstrating that their personal circumstances had been genuinely and individually taken into account. 63. In this regard, the Court observes that the parties are not in agreement as to the conditions of the interviews conducted in the present case; they also disagree as to whether the applicants actually declared their intention to request asylum. The Government submitted that genuine individualised interviews had been carried out in the presence of an interpreter; the contents of those interviews had then been recorded in the transcripts thereof, which had been signed by the applicants. The applicants alleged, by contrast, that they had not been interviewed separately, that the interviews had been carried out under extreme time pressure and that several of those interviews had overlapped, and that they had been made to sign documents whose contents had been unknown to them. 64. The Court notes that the file contains transcripts of oral explanations provided by the applicants concerning their irregular border-crossing, as well as transcripts of individual interviews conducted with them in their capacity as parties to the expulsion proceedings; those documents were signed by the applicants and the interpreter (see paragraph 7 above). According to these transcripts, all the interviews were carried out on 17 November 2014 between 9.10 and 12.30, lasted exactly ten minutes and were conducted by two police officers in the presence of the interpreter (see paragraph 8 above). It is true that the official times of some interviews overlapped, which the Government explained by the fact that there could have been some errors in the recording of those interviews owing to the fact that the interviews had taken place in the night and early morning hours. Even if, in the Court ’ s view, such an explanation does not appear entirely plausible, given that the interviews took place between 9.10 and 12.30, it is not in itself sufficient to justify the applicants ’ view that the interviews were not conducted on an individual basis. Moreover, the Court has already held that Article 4 of Protocol No. 4 does not guarantee the right to an individual interview in all circumstances (see paragraph 57 in fine above). 65. Indeed, what matters is whether the applicants had a genuine and effective opportunity to submit arguments against their expulsion (see, among other authorities, Sultani, cited above, § 81, and Hirsi Jamaa and Others, cited above, § 184). 66. In this connection, the Court is ready to accept the fact that the applicants were asked standardised questions, in so far as those questions were aimed at establishing the factors that had led the applicants to leave their country of origin and the circumstances of their entry onto Slovak territory. While the applicants ’ answers were very similar, it may be presumed that the details of their journey might have been similar as well, since they had been travelling as a group; the recordings also differ in the amount of money that the applicants declared as being in their possession, which rather points to an individualised approach. Moreover, the fact that the interviews were rather short may be a consequence of the applicants not stating anything that would require a more thorough examination. 67. Furthermore, the applicants have not put forward any arguments to refute their statements, as recorded in the transcripts of their interviews. According to those statements, they had not suffered any persecution in their country of origin, and nor had the death penalty been imposed on them there; rather, they had left Afghanistan for economic reasons and wished to go on to Germany and thus did not wish to seek asylum in Slovakia (see paragraph 7 above). They have thus not asserted any risk of being subjected to a treatment which is incompatible with the Convention (see paragraph 58 above). It is to be noted that the existence of any possible obstacles (under Articles 3 and 8 of the Convention) to the administrative expulsion of the applicants was nevertheless subject to examination by the police authority, and that regard was paid to the fact that the applicants did not risk any forced return to their country (see paragraph 10 above). 68. Moreover, the Court does not have any proof that the transcripts of the applicants ’ interviews did not correspond to the applicants ’ actual statements, or that those statements were wrongly translated (as alleged by the applicants), nor does it have any reason to believe that the applicants ’ requests for asylum were ignored by the police. It is to be noted, on the other hand, that no personal reasons supporting the applicants ’ requests for asylum were mentioned either in their conversations with the Ukrainian lawyer (see paragraph 13 above) or in their appeals against the expulsion orders (see paragraph 14 above). 69. It is significant that – as stated and documented by the Government (see paragraph 6 in fine above) and not disputed by the applicants – twelve migrants arrested together with the applicants expressed their wish to apply for asylum, thus halting their return and resulting in their transfer to a reception centre for asylum seekers. There is thus no reason to assume that the Slovak authorities, which heeded the wishes of those other migrants to seek asylum, would have remained unreceptive to similar requests on the part of the applicants 70. Lastly, it is not disputed by the applicants that the interpreter was present at the police station at least during the time of their interviews – that is to say between 9.10 and 12.30. Neither does the Court have reason to doubt that, as affirmed by the relevant documents signed by the applicants and the interpreter, the applicants were informed of their right to legal aid and of the possibility to comment on the case file and to adduce evidence; none of them chose to avail themselves of that right and possibility (see paragraph 7 above). 71. In view of the above, the Court does not find that the applicants were deprived of the possibility to draw the attention of the national authorities to any circumstance that might affect their status and entitle them to remain in Slovakia, or that their removal to Ukraine was carried out without any form of examination of their individual situation. In conclusion, there has been no violation of Article 4 of Protocol No. 4 to the Convention. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 4 OF PROTOCOL No. 4 72. The applicants complained that they had had no effective remedy through which to prevent their expulsion – which they deemed “collective” – to Ukraine since the decisions on their expulsion had excluded the otherwise automatic suspensive effect of the appeal; thus their removal to Ukraine had been immediately enforced. They relied on Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 73. The Government contested the applicants ’ argument and considered that there existed no arguable claim under Article 13. 74. The Court reiterates that Article 13 guarantees the availability of a remedy at national level to enforce – and hence to allege non-compliance with – the substance of the Convention rights in whatever form they may happen to be secured under domestic law. However, that Article cannot reasonably be interpreted as requiring such a remedy in respect of any supposed grievance under the Convention that a person may have, no matter how unmeritorious; the grievance must be an arguable one in terms of the Convention (see Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131). As a rule, the fact that a complaint has been declared admissible is a strong indication that it can be regarded as arguable for the purposes of Article 13, even if the Court ultimately finds no breach of the substantive provision in issue (see, for example, Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 137, ECHR 2003 ‑ VIII). However, determining whether a claim is arguable does not depend so much on the case ’ s procedural posture as on the particular facts and the nature of the legal issues raised. 75. In the present case the Court, having regard to the particular circumstances and the available evidence, was not persuaded that the applicants ’ expulsion was “collective” within the meaning of Article 4 of Protocol No. 4 or that the applicants were effectively prevented from applying for asylum. The position here is therefore akin to that in cases such as Halford v. the United Kingdom (25 June 1997, § 70, Reports 1997 ‑ III), Russian Conservative Party of Entrepreneurs and Others v. Russia (nos. 55066/00 and 55638/00, § 90, ECHR 2007 ‑ I), and Ivan Atanasov v. Bulgaria (no. 12853/ 03, § 101, 2 December 2010), in which the Court, having regard to the particular circumstances, departed from its usual approach and found that complaints that had been declared admissible were nonetheless not arguable in terms of Article 13. 76. Bearing in mind its case-law stemming from similar cases (see Khlaifia and Others, cited above, §§ 279 and 281), the Court also observes that the applicants did not raise any separate complaints under Articles 2 and 3, and nor did they substantiate their fear of being persecuted in Afghanistan. 77. Accordingly, however the applicants ’ grievance is construed, the applicants have no arguable claim for the purposes of Article 13 of the Convention. 78. It follows that this part of the application is manifestly ill-founded, and must be rejected, in accordance with Article 35 §§ 3 and 4 of the Convention. | The Court examined the complaints of only seven of the 19 applicants, striking the case out of its list in respect of the others. It held that there had been no violation of Article 4 of Protocol No. 4 to the Convention in respect of the seven applicants, finding that the Slovakian police had not subjected them to collective expulsion when they had returned them to Ukraine. The Court considered in particular that despite short interviews at the police station, they had been given a genuine possibility to draw the authorities’ attention to any issue which could have affected their status and entitled them to remain in Slovakia. Their removal had not been carried out without any examination of their individual circumstances. |
318 | Prevention of terrorism | Relevant legal framework and practice DOMESTIC LAW AND PRACTICEDomestic lawThe Constitution Domestic lawThe Constitution The Constitution Domestic lawThe Constitution The Constitution The Constitution 47. The relevant provisions of the Constitution read as follows: Article 18 Foreign nationals and stateless persons “(1) Foreign nationals and stateless persons who live in Romania enjoy the general protection of individuals and property, as secured by the Constitution and other laws.” Article 21 Free access to the courts “(3) Parties have the right to a fair hearing and to the settlement of their disputes within a reasonable time ...” Article 24 Defence rights “(1) Defence rights are guaranteed. (2) Throughout the proceedings, the parties have the right to be assisted by counsel, whether of their own choosing or officially assigned.” Article 31 The right to information “(3) The right to information shall not compromise measures for protection ... of national security.” Code of Civil Procedure 48. The relevant provisions of the Code of Civil Procedure, as in force at the material time, read as follows: Article 129 “(2) The court informs the parties of their rights and obligations depending on their capacity in the proceedings ...” Article 167 “(1) Evidence can only be admitted if the court [ instanța ] is of the view that it is capable of contributing to the manifestation of the truth [ că ele pot să aducă dezlegarea pricinii ] ... (2) It will be added to the file before the opening of the proceedings on the merits. (3) Evidence for and against will be gathered, as far as possible, at the same time. ...” Article 305 “No new evidence may be presented for the purposes of an appeal [ recurs ], except for the written documents which may be adduced until the close of the proceedings.” Law no. 51/1991 on national security 49. The relevant provisions of Law no. 51/1991 on national security read as follows: Section 3 “The following shall constitute threats to the national security of Romania: (a) plans and activities seeking to abolish or undermine the sovereignty, unity, independence or indivisibility of the Romanian State; (b) activities whose direct or indirect aim is to trigger a war against the State or a civil war, to facilitate foreign military occupation or servitude towards a foreign power or to help a foreign power or organisation achieve such aims; (c) treason committed by aiding enemies; (d) armed or violent acts which seek to weaken the power of the State; (e) espionage, the transmission of State secrets to a foreign power or organisation or to their agents, the illegal possession of State secrets with a view to their transmission to a foreign power or organisation or to the agents thereof ...; (f) the acts of undermining, sabotaging or any other act which seeks to destroy by force the democratic institutions of the State or which seriously breaches the fundamental rights and freedoms of Romanian citizens or which may interfere with the defence capacity or other similar interests of the State, and any destruction or damage ... of the infrastructures necessary for the proper functioning of social and economic life or for national defence purposes; (g) acts through which harm is caused to life, to physical integrity or to the health of individuals who perform significant State duties ...; (h) the conception, organisation or commission of radical or extremist acts, of a communist, fascist ... racist, anti-Semitic, negationist or separatist nature, which may endanger, in any manner, the territorial unity and integrity of Romania, or incitement to commit acts which may undermine the rule of law; (i) terrorist acts, and any planning or support related thereto, by any means whatsoever; (j) attacks against an authority perpetrated by any means whatsoever; (k) the theft of weapons, munitions, explosives, or radioactive, toxic or biological substances from the units authorised to hold them, the smuggling of such material, or the fabrication, possession, disposal, transport or use thereof in conditions other than those prescribed by law, and the unlawful possession of weapons or munitions endangering national security; (l) the creation or constitution of an organisation or group, or the fact of belonging to one or supporting one by any means, in pursuit of any of the activities listed in points (a) to (k) above, and the covert pursuit of such activities by lawfully established organisations or groups.” Section 8 “Intelligence activities, aimed at the preservation of national security, shall be carried out by the Romanian intelligence service, ...” Section 10 “Intelligence activities for the protection of national security shall be classified as a State secret [ secret de stat ].” Section 11(1) “Information relating to national security may be transmitted: ... (d) to the organs of public prosecution, where the information concerns the commission of an offence. The disclosure of [such] information must be approved by the heads of the bodies responsible for national security.” Law no. 535/2004 on the prevention and combating of terrorism 50. The relevant part of section 44 of Law no. 535/2004 on the prevention and combating of terrorism, as in force at the material time, was drafted as follows: “1. In the case of foreign nationals or stateless persons concerning whom there is data or strong indications [ indicii temeinice ] [showing] that they intend to carry out terrorist acts or to aid and abet terrorism, they shall be declared as undesirable persons in Romania and may have their leave to remain withdrawn, unless they have been prohibited from leaving the country ...” Law no. 182/2002 on the protection of secret information 51. The relevant provisions of Law no. 182/2002 on the protection of secret information read as follows: Section 15 “The following terms shall be defined as follows, within the meaning hereof: ... (b) classified information: any information, data, documents having a national security interest, which, in view of their level of importance and any consequences they may have on account of their unauthorised disclosure and dissemination, must be protected; (c) the categories of classified documents are: State secrets [ secret de stat ] and service secrets; (d) information [constituting] State secrets: information related to national security, the disclosure of which may harm national security and the defence of the nation; ... (f) the following levels of classification [ de secretizare ] are attributed to classified information within the category of State secret: – top secret [ strict secret de importanță deosebită ]: information of which unauthorised disclosure is capable of causing harm of exceptional seriousness to national security; – secret [ strict secrete ]: information of which unauthorised disclosure is capable of causing serious harm to national security; – confidential [ secrete ]: information of which unauthorised disclosure is capable of causing harm to national security; ...” Section 17 “(1) Information classified as a State secret [ secret de stat ] shall include information concerning: ... (f) the intelligence gathering activity of the public authorities established by law for the defence of the nation and national security; (g) any resources, methods, techniques or working equipment, or specific sources of information used by public authorities engaging in intelligence activities; ...” Section 21 “(1) The Office of the national register of State secret information shall be a subordinate body [ în subordinea ] directly reporting to the Government. (2) The Office of the national register of State secret information shall keep a record of the lists and information belonging to this category, of the time-frame within which a certain level of classification is maintained, of the staff vetted and approved to work with State secret information, and of the authorisation registers ...” Section 24 “(4) Classified information under section 15 (f) hereof may be declassified by order of the Government upon a reasoned request of the competent [body]. ... (10) Declassification or relegation to a lower level of classification shall be carried out by individuals or public authorities with power to approve the classification and level of classification of the information at issue.” Section 28 “(1) Access to State secret classified information shall be possible only by written authorisation of the director of the legal entity which holds the information, after giving prior notice to the Office of the national register of State secret information. (2) Authorisation shall be given depending on the levels of classification provided for in section 15 (f), after vetting of the person concerned, with his or prior written consent. Legal persons, ... shall inform the Office of the national register of State secret information of the issuance of access authorisation. ... (4) The validity of the authorisation shall last for four years; during that period, vetting may be resumed at any time. ...”. Section 36 “(1) Persons to whom classified information is entrusted shall ensure its protection in accordance with the law and shall comply with the provisions of schemes for the prevention of leaks of classified information. ...” Section 37 “(1) Public authorities, together with other legal entities which are holders of information with the State secret or service secret classification or to which such information has been entrusted, shall provide the funds necessary to fulfil their obligations and shall take the necessary measures to protect the said information. (2) Responsibility for the protection of classified information lies with the head of the authority or public institution or of the legal entity which holds the information, as the case may be.” Section 39 “(1) Any breach of the rules concerning the protection of classified information shall engage disciplinary, administrative, civil or criminal liability, as the case may be. (2) Any individuals working in the sector of intelligence, in the security services or in the army, or for the department of foreign relations, or those persons who have been specially entrusted with the protection of State secret information, who are found guilty of wilful disclosure or acts of negligence giving rise to the disclosure or leaking of classified information, shall irrevocably be dismissed from their posts [ calitatea ].” Government Ordinance no. 194/2002 on immigration status in Romania 52. The provisions relevant to the present case in OUG no. 194/2002 on immigration status in Romania, as in force at the material time, read as follows: Article 85 Declaration of an alien as an undesirable person “(1) The declaration [that an individual is] an undesirable person is a measure taken against an alien who has carried out or who carries out activities that are capable of endangering national security or public order, or [about whom] there are strong indications [ indicii temeinice ] [that he or she] intends to carry out such activities. (2) The measure provided for in the previous paragraph shall be taken by the Bucharest Court of Appeal, on the proposal of the public prosecutor, .... who submits his application to that court, on the proposal of the competent institutions in the field of public order and national security which are in possession of such indications ... (3) Any data or intelligence which form the basis of the proposal to declare an alien undesirable for national security reasons must be made available to the [Court of Appeal] under conditions that have been laid down by the normative instruments governing activities related to national security and the protection of classified information. (4) The application provided for in the second paragraph shall be examined at a private hearing to which the parties are summoned. The Court of Appeal shall notify the alien of the facts underlying the application, in accordance with the provisions of the normative instruments governing activities related to national security and the protection of classified information. (5) The Court of Appeal shall deliver a judgment containing reasons, within a period of ten days from the submission of the application formulated in accordance with paragraph 2 hereof. The court’s decision shall be final. Where an alien is declared undesirable on national security grounds, the data and intelligence on which the decision is based shall not be mentioned in the text of that decision. ... (9) An alien may be declared undesirable for a period of between five and fifteen years ...” Article 86 Appeals against judgments delivered under Article 85 § 5 “The judgment provided for in Article 85 § 5 hereof may be challenged by an appeal before the High Court of Cassation and Justice within ten days from the date of its notification [to the person concerned]. The High Court shall give its decision within five days from the date on which the appeal is deposited.” Government Order no. 585/2002 53. The relevant provisions of the national standards of protection of classified information in Romania, as approved by Government Order no. 585/2002, read as follows: Article 19 “Information [classified] as a State secret may be declassified by order of the Government, upon the reasoned request of the issuing [body].” Article 20 “(1) [Classified] information shall be declassified where: (a) the classification time-limit has expired; (b) the disclosure of the information can no longer cause harm to national security ...; (c) [the classification] had been carried out by a person without legal authorisation [ neîmputernicită ]. (2) Declassification or relegation to a lower level of classification of State secret [classified] information shall be decided by authorised persons or senior civil servants entitled by law to attribute different levels of classification, subject to the prior opinion of the institutions which coordinate activities concerning the protection of classified information and the supervision of related measures ...” Article 26 “Classified information may be transmitted to individuals who hold security clearance certificates or access permits corresponding to the level of classification [of the information in question].” Article 159 “The following situations attributable to an applicant [seeking access to classified information] ... shall represent situations of incompatibility with access to State secret [classified] information: (a) if he or she has committed or intended to commit, acts of espionage, terrorism, treason or other offences against State security; ...” The procedure for obtaining an ORNISS certificate 54. The situation since 2010 is that lawyers may ask to be granted a security clearance certificate or access permit delivered by the ORNISS (“the ORNISS certificate”), in order to gain access to classified documents. For that purpose the lawyer must submit his application to the Chair of the Bar of which he is a member, who forwards it to the National Union of Romanian Bars (“the UNBR”). The lawyer must attach to his application, among other documents, a copy of the authority form given to him by the client in order to represent him in a case and a note from the body that is dealing with his client’s case which attests that classified material has been submitted in evidence and that, in order to have access to that material and prepare his client’s defence, the lawyer needs that certificate. The UNBR then initiates the procedure, which involves the competent authority carrying out preliminary checks on the lawyer’s situation. The duration of the vetting procedure for persons who have requested access to “secret” classified information is 60 working days (Article 148 of Government Order No. 585/2002). Following the checks, the competent vetting authority forwards its conclusions to the ORNISS, which will issue its opinion to be forwarded to the UNBR. The latter will then have five days within which to issue the decision on access to classified documents. 55. Upon receipt of the ORNISS certificate, the lawyer to whom it is issued must sign a confidentiality agreement for the protection of any classified information brought to his knowledge. Once issued, the ORNISS certificate is valid for four years. During the period of validity, vetting of the lawyer may be resumed at any time. 56. On 10 October 2013 the Chair of the UNBR asked the ORNISS for its opinion on the possibility of publishing, on the websites of the various Bar Associations, the names of lawyers issued with documents giving them access to classified information. On 6 November 2013 the ORNISS stated its position that such publication would lead to the introduction of different categories of lawyers within the same system, and therefore to a situation of discrimination against lawyers who did not hold such documents. Under section 2 of Law No. 182/2002, access to classified information was not a right guaranteed by law to all citizens and was only allowed in the cases and under the conditions provided for by law. Therefore it could not be said that all lawyers registered with the Bar could obtain such access. It concluded that the idea of publishing the names of lawyers authorised to have access to classified information on the websites of the various Bar Associations or on that of the UNBR was not justified. 57. In the opinion of the UNBR, as indicated in a letter it sent to the Government in January 2018, the publication of a list of lawyers holding ORNISS certificates might breach Article 24 of the Constitution (right to be represented by a lawyer of one’s choosing). In a letter of 19 April 2019, in reply to a request from the applicants, the UNBR indicated that any lawyer who was chosen or appointed to represent a person concerned by classified material or to provide that person with legal assistance was entitled to apply for an ORNISS certificate, and therefore there was no “list of lawyers holding an ORNISS certificate”; moreover, the compilation and use of such a list would be at odds with Article 24 of the Constitution. 58. The Government indicated, based on information provided to them by the national authorities, that in December 2012 eight lawyers held an ORNISS certificate, and that from 2011 until the date on which they submitted their observations to the Grand Chamber, thirty-three lawyers had been granted access to classified information. Relevant domestic case-law 59. The parties submitted examples of domestic case-law concerning proceedings brought by aliens against decisions declaring them undesirable or challenged refusals by the Romanian Immigration Office (ORI) to grant them permanent leave to remain in Romania. 60. In a series of decisions (28 January 2011, 18 October 2011, 14 March 2012, 9 July 2012, 26 October 2012, 9 November 2012, 20 December 2012, 22 August 2013, 7 November 2013 and 2 April 2015) the Court of Appeal found that the aliens concerned had received sufficient information to enable them to prepare their defence, based on the submissions initiating the proceedings, which had mentioned that they stood accused of activities related to terrorism as defined by section 3 points (i) and (l) of Law no. 51/1991. 61. In other cases, in addition to the reference to section 3 points (i) and (l) of Law No. 51/1991, the Court of Appeal indicated more specific factual details, for example: that the alien was suspected of intent to engage in “subversive activities” in favour of a terrorist organisation (judgments of 24 August 2012, 10 June 2015 and 30 August 2016) or of supporting these organisations financially or through propaganda (judgments of 6 February 2013, 19 July 2017, 2 August 2017, 13 December 2017, 7 March 2019, 26 March 2019 and 3 April 2019); that the alien was accused of spying for foreign organisations, had made contact with terrorist organisations via the Internet, or had shown a willingness to commit acts of violence in the name of a terrorist ideology (for example, judgments of 17 May 2012, 23 April 2013, 31 March 2015, 29 December 2015, 14 June 2016, 1 September 2016, 1 March 2017, 14 November 2017, 4 April 2018 and 20 June 2018). 62. It appears from the examples of case-law adduced by the Government that in two cases, having considered all of the evidence before it and its credibility, the Court of Appeal had only partly accepted the prosecutor’s request to declare the aliens undesirable (judgments of 31 March 2015 and 19 July 2017). 63. In some cases the aliens had challenged refusals by the ORI to grant them permanent leave to remain in Romania, on the ground that it was clear from the classified evidence that the alien was engaging in activities likely to undermine public order or national security. In a number of those cases the competent domestic courts (Court of Appeal and High Court) upheld their appeals on the ground that the ORI’s refusal was not justified by any objective elements or the classified documents in the file (see the final judgments of the High Court of 28 September 2010, 22 February 2011, 24 March 2011, 16 September 2011, 8 March 2012, 29 May 2014 and 25 September 2018). On other occasions, the High Court dismissed the aliens’ appeals, finding that the ORI’s denial of leave to remain was well founded (see the final judgments of the High Court of 16 June 2011, 19 June 2012 and 28 February 2014). 64. According to some examples of case-law adduced by the Government, national courts did not inform those concerned of the possibility of being assisted by a lawyer (Court of Appeal judgments of 24 August 2012, 26 October 2012 and 7 March 2019). In other cases, the Court of Appeal notified the aliens that only persons with special authorisation could have access to the classified documents in the file, without however identifying the lawyers who held such a certificate (judgments of 7 November 2013, 2 April 2015 and 1 September 2016). 65. A number of decisions show that, where the aliens requested the adjournment of the case in order to find a lawyer, the Court of Appeal did not grant their requests, on the grounds that such proceedings were required by law to be expedited and the alien would still be able to appeal (judgments of 9 July 2012, 7 November 2013, 10 June 2015, 14 June 2016 and 30 August 2016; see also the High Court judgment of 8 January 2016 finding that the statutory time-limit for a decision on such an appeal was strict). 66. In other cases the domestic courts granted the alien’s request to adjourn the proceedings in order to find a lawyer, while indicating that the chosen lawyer already had to hold an ORNISS certificate (Court of Appeal case no. 2138/2/2018 and the High Court’s interlocutory judgment of 11 July 2016) as it was impossible for a lawyer to obtain the certificate during the proceedings on account of the statutory time-limit. However, in two immigration cases (one from 2017 the other from 2019) the domestic courts adjourned the proceedings several times, even beyond the statutory time-limit, so that the alien’s lawyer could take the necessary steps to obtain an ORNISS certificate. COUNCIL OF EUROPE DOCUMENTSProtocol No. 7 to the Convention, Explanatory Report Protocol No. 7 to the Convention, Explanatory Report Protocol No. 7 to the Convention, Explanatory Report 67. The Explanatory Report on Protocol No. 7 was drafted by the Steering Committee on Human Rights and submitted to the Council of Europe Committee of Ministers. It explains at the outset that the text of the report itself “does not constitute an instrument providing an authoritative interpretation of the text of the Protocol, although it might be of such a nature as to facilitate the understanding of the provisions contained therein”. 68. The relevant parts of the Explanatory Report read as follows: “ Article 1 6. In line with the general remark made in the introduction (see above, paragraph 4), it is stressed that an alien lawfully in the territory of a member State of the Council of Europe already benefits from certain guarantees when a measure of expulsion is taken against him, notably those which are afforded by Articles 3 (prohibition of inhuman or degrading treatment) and 8 (right to respect for private and family life), in connection with Article 13 (right to an effective remedy before a national authority) of the European Convention on Human Rights, as interpreted by the European Commission and Court of Human Rights and – in those States which are parties – by the European Convention on Establishment of 1955 (Article 3), the European Social Charter of 1961 (Article 19, paragraph 8), the Treaty establishing the European Economic Community of 1957 (Article 48), the Geneva Convention relating to the status of refugees of 1951 (Articles 32 and 33) and the United Nations Covenant on Civil and Political Rights of 1966 (Article 13). 7. Account being taken of the rights which are thus recognised in favour of aliens, the present article has been added to the European Convention on Human Rights in order to afford minimum guarantees to such persons in the event of expulsion from the territory of a Contracting Party. The addition of this article enables protection to be granted in those cases which are not covered by other international instruments and allows such protection to be brought within the purview of the system of control provided for in the European Convention on Human Rights. ... 11. Paragraph 1 of this article provides first that the person concerned may be expelled only ‘in pursuance of a decision reached in accordance with law’. No exceptions may be made to this rule. However, again, ‘law’ refers to the domestic law of the State concerned. The decision must therefore be taken by the competent authority in accordance with the provisions of substantive law and with the relevant procedural rules. 12. Sub-paragraphs a, b and c of this same paragraph go on to set out three guarantees. Unlike the wording of Article 13 of the United Nations Covenant, the three guarantees have been clearly distinguished in three separate sub-paragraphs. 13.1. The first guarantee is the right of the person concerned to submit reasons against his expulsion. The conditions governing the exercise of this right are a matter for domestic legislation. By including this guarantee in a separate sub-paragraph, the intention is to indicate clearly that an alien can exercise it even before being able to have his case reviewed. 13.2. The second guarantee is the right of the person concerned to have his case reviewed. This does not necessarily require a two-stage procedure before different authorities, but only that the competent authority should review the case in the light of the reasons against expulsion submitted by the person concerned. Subject to this and to sub-paragraph c, the form which the review should take is left to domestic law. In some States, an alien has the possibility of introducing an appeal against the decision taken following the review of his case. The present article does not relate to that stage of proceedings and does not therefore require that the person concerned should be permitted to remain in the territory of the State pending the outcome of the appeal introduced against the decision taken following the review of his case. 13.3. Sub-paragraph c requires that the person concerned shall have the right to have his case presented on his behalf to the competent authority or a person or persons designated by that authority. The ‘competent authority’ may be administrative or judicial. Moreover, the ‘competent authority’ for the purpose of reviewing the case need not be the authority with whom the final decision on the question of expulsion rests. Thus, a procedure under which a court, which had reviewed the case in accordance with sub-paragraph b, made a recommendation of expulsion to an administrative authority with whom the final decision lay would satisfy the article. Nor would it be inconsistent with the requirements of this article or of Article 14 of the Convention for the domestic law to establish different procedures and designate different authorities for certain categories of cases, provided that the guarantees contained in the article are otherwise respected. ... 16. The European Commission of Human Rights has held in the case of Application No. 7729/76 that a decision to deport a person does ‘not involve a determination of his civil rights and obligations or of any criminal charge against him’ within the meaning of Article 6 of the Convention. The present article does not affect this interpretation of Article 6. ...” European Convention on the Legal Status of Migrant Workers 69. Article 9 § 5 of the European Convention on the Legal Status of Migrant Workers signed in Strasbourg on 24 November 1977 reads as follows: “The residence permit, issued in accordance with the provisions of paragraphs 1 to 3 of this article, may be withdrawn: a) for reasons of national security, public policy or morals; b) if the holder refuses, after having been duly informed of the consequences of such refusal, to comply with the measures prescribed for him by an official medical authority with a view to the protection of public health; c) if a condition essential to its issue or validity is not fulfilled. Each Contracting Party nevertheless undertakes to grant to migrant workers whose residence permits have been withdrawn, an effective right to appeal, in accordance with the procedure for which provision is made in its legislation, to a judicial or administrative authority.” European Convention on Establishment 70. Article 3 § 2 of the European Convention on Establishment signed in Paris on 13 December 1955 reads as follows: “ Except where imperative considerations of national security otherwise require, a national of any Contracting Party who has been so lawfully residing for more than two years in the territory of any other Party shall not be expelled without first being allowed to submit reasons against his expulsion and to appeal to, and be represented for the purpose before, a competent authority or a person or persons specially designated by the competent authority.” EUROPEAN UNION LAW AND CASE-LAW OF THE COURT OF JUSTICE OF THE EUROPEAN UNION 71. Article 12 (1) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, reads as follows: “Return decisions and, if issued, entry-ban decisions and decisions on removal shall be issued in writing and give reasons in fact and in law as well as information about available legal remedies. The information on reasons in fact may be limited where national law allows for the right to information to be restricted, in particular in order to safeguard national security, defence, public security and for the prevention, investigation, detection and prosecution of criminal offences.” 72. The relevant Articles of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, read as follows: Article 28 Protection against expulsion “1. Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin. 2. The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security. 3. An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member States, if they: (a) have resided in the host Member State for the previous ten years; or (b) are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989.” Article 31 Procedural safeguards “1. The persons concerned shall have access to judicial and, where appropriate, administrative redress procedures in the host Member State to appeal against or seek review of any decision taken against them on the grounds of public policy, public security or public health. 2. Where the application for appeal against or judicial review of the expulsion decision is accompanied by an application for an interim order to suspend enforcement of that decision, actual removal from the territory may not take place until such time as the decision on the interim order has been taken, except: - where the expulsion decision is based on a previous judicial decision; or - where the persons concerned have had previous access to judicial review; or - where the expulsion decision is based on imperative grounds of public security under Article 28(3). 3. The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed measure is based. They shall ensure that the decision is not disproportionate, particularly in view of the requirements laid down in Article 28. 4. Member States may exclude the individual concerned from their territory pending the redress procedure, but they may not prevent the individual from submitting his/her defence in person, except when his/her appearance may cause serious troubles to public policy or public security or when the appeal or judicial review concerns a denial of entry to the territory.” 73. In the decision denying a citizen of the European Union admission to an European Union member State on public security grounds, and thus involving the citizenship and free movement rights of persons under European Union law, the Court of Justice of the European Union (CJEU) has found in the preliminary ruling in ZZ v. the United Kingdom (case C ‑ 300/11, 4 June 2013) as follows: “65. In this connection, first, in the light of the need to comply with Article 47 of the Charter, that procedure must ensure, to the greatest possible extent, that the adversarial principle is complied with, in order to enable the person concerned to contest the grounds on which the decision in question is based and to make submissions on the evidence relating to the decision and, therefore, to put forward an effective defence. In particular, the person concerned must be informed, in any event, of the essence of the grounds on which a decision refusing entry ... is based, as the necessary protection of State security cannot have the effect of denying the person concerned his right to be heard and, therefore, of rendering his right of redress ... ineffective. 66. Second, the weighing up of the right to effective judicial protection against the necessity to protect the security of the Member State concerned – upon which the conclusion set out in the preceding paragraph of the present judgment is founded – is not applicable in the same way to the evidence underlying the grounds that is adduced before the national court with jurisdiction. In certain cases, disclosure of that evidence is liable to compromise State security in a direct and specific manner, in that it may, in particular, endanger the life, health or freedom of persons or reveal the methods of investigation specifically used by the national security authorities and thus seriously impede, or even prevent, future performance of the tasks of those authorities. 67. In that context, the national court with jurisdiction has the task of assessing whether and to what extent the restrictions on the rights of the defence arising in particular from a failure to disclose the evidence and the precise and full grounds on which the decision ... is based are such as to affect the evidential value of the confidential evidence. 68. Accordingly, it is incumbent upon the national court with jurisdiction, first, to ensure that the person concerned is informed of the essence of the grounds which constitute the basis of the decision in question in a manner which takes due account of the necessary confidentiality of the evidence and, second, to draw, pursuant to national law, the appropriate conclusions from any failure to comply with that obligation to inform him.” OTHER INTERNATIONAL MATERIALSInternational Covenant on Civil and Political Rights International Covenant on Civil and Political Rights International Covenant on Civil and Political Rights 74. Article 13 of the International Covenant on Civil and Political Rights (“the Covenant”), to which Romania has been a party since its entry into force on 23 March 1976, reads as follows: “An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.” Declaration on the Human Rights of Individuals who are not Nationals of the Country in which They Live 75. Article 7 of the Declaration on the Human Rights of Individuals who are not Nationals of the Country in which They Live, annexed to General Assembly resolution 40/144 of 13 December 1985, provides that: “An alien lawfully in the territory of a State may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons why he or she should not be expelled and to have the case reviewed by, and be represented for the purpose before, the competent authority or a person or persons specially designated by the competent authority. Individual or collective expulsion of such aliens on grounds of race, colour, religion, culture, descent or national or ethnic origin is prohibited.” The General Recommendation No. 30 (2004) of the Committee on the Elimination of Racial Discrimination 76. In its General Recommendation No. 30 (2004) on discrimination against non-citizens, the Committee on the Elimination of Racial Discrimination recommended that States parties to the International Convention on the Elimination of All Forms of Racial Discrimination should: “25. Ensure that ... non-citizens have equal access to effective remedies, including the right to challenge expulsion orders, and are allowed effectively to pursue such remedies.” International Law Commission’s Draft Articles on the Expulsion of Aliens 77. At its sixty-sixth session, in 2014, the International Law Commission adopted a set of Draft Articles on the Expulsion of Aliens. The text, of which the United Nations General Assembly took note (Resolution A/RES/69/119 of 10 December 2014), includes the following provisions: Article 26 Procedural rights of aliens subject to expulsion “1. An alien subject to expulsion enjoys the following procedural rights: (a) the right to receive notice of the expulsion decision; (b) the right to challenge the expulsion decision, except where compelling reasons of national security otherwise require; (c) the right to be heard by a competent authority; (d) the right of access to effective remedies to challenge the expulsion decision; (e) the right to be represented before the competent authority; and (f) the right to have the free assistance of an interpreter if he or she cannot understand or speak the language used by the competent authority.” Commentary “(1) Draft article 26, paragraph 1, sets out a list of procedural rights from which any alien subject to expulsion must benefit, irrespective of whether that person is lawfully or unlawfully present in the territory of the expelling State. The sole exception — to which reference is made in paragraph 4 of the draft article — is that of aliens who have been unlawfully present in the territory of that State for a brief duration. (2) Paragraph 1 (a) sets forth the right to receive notice of the expulsion decision. The expelling State’s respect for this essential guarantee is a conditio sine qua non for the exercise by an alien subject to expulsion of all of his or her procedural rights. This condition was explicitly embodied in article 22, paragraph 3, of the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, which stipulates that the expulsion decision ‘shall be communicated to them in a language they understand’. In 1892 the Institute of International Law already expressed the view that ‘l’acte ordonnant l’expulsion est notifié à l’expulsé’ [the expulsion order shall be notified to the expellee] and also that ‘si l’expulsé a la faculté de recourir à une haute cour judiciaire ou administrative, il doit être informé, par l’acte même, et de cette circonstance et du délai à observer’ [if the expellee is entitled to appeal to a high judicial or administrative court, the expulsion order must indicate this and state the deadline for filing the appeal]. The legislation of several States contains a requirement that an expulsion decision must be notified to the alien concerned. (3) Paragraph 1 (b) sets out the right to challenge the expulsion decision, a right well established in international law. At the universal level, article 13 of the International Covenant on Civil and Political Rights provides the individual facing expulsion with the right to submit the reasons against his or her expulsion, except where ‘compelling reasons of national security otherwise require’ ... The same right is to be found in article 7 of the Declaration on the Human Rights of Individuals who are not Nationals of the Country in which They Live, annexed to General Assembly resolution 40/144 of 13 December 1985, which provides that ‘[a]n alien lawfully in the territory of a State ... shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons why he or she should not be expelled’. At the regional level, article 1, paragraph 1 (a) of Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms provides that an alien lawfully resident in the territory of a State and subject to an expulsion order shall be allowed ‘to submit reasons against his expulsion’. Article 3, paragraph 2, of the European Convention on Establishment offers the same safeguard by providing that ‘[e]xcept where imperative considerations of national security otherwise require, a national of any Contracting Party who has been so lawfully residing for more than two years in the territory of any other Party shall not be expelled without first being allowed to submit reasons against his expulsion’. Lastly, the right of an alien to contest his or her expulsion is also embodied in internal law. (4) The right to be heard by a competent authority, set out in paragraph 1 (c), is essential for the exercise of the right to challenge an expulsion decision, which forms the subject of paragraph 1 (b). Although article 13 of the International Covenant on Civil and Political Rights does not expressly grant the alien the right to be heard, the Human Rights Committee has taken the view that an expulsion decision adopted without the alien having been given an opportunity to be heard may raise questions under article 13 of the Covenant: ... Article 83 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; article 32, paragraph 2, of the Convention relating to the Status of Refugees; article 31, paragraph 2, of the Convention relating to the Status of Stateless Persons; article 9, paragraph 5, of the European Convention on the Legal Status of Migrant Workers; and article 26, paragraph 2, of the Arab Charter on Human Rights also require that there be a possibility of appealing against an expulsion decision. This right to a review procedure has also been recognized, in terms which are identical to those of article 13 of the International Covenant on Civil and Political Rights, by the General Assembly in article 7 of the Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live, annexed to General Assembly resolution 40/144. ... (5) Paragraph 1 (d) sets out the right of access to effective remedies to challenge the expulsion decision. While article 13 of the International Covenant on Civil and Political Rights entitles an alien lawfully present in the expelling State to a review of the expulsion decision, it does not specify the type of authority which should undertake the review... The Human Rights Committee has drawn attention to the fact that the right to a review, as well as the other guarantees provided in article 13, may be departed from only if “compelling reasons of national security” so require. The Committee has also stressed that the remedy at the disposal of the alien expelled must be an effective one: ... (6) Paragraph 1 (e), the content of which is based on article 13 of the International Covenant on Civil and Political Rights, gives an alien subject to expulsion the right to be represented before the competent authority. From the standpoint of international law, this right does not necessarily encompass the right to be represented by a lawyer during expulsion proceedings. In any case, it does not encompass an obligation on the expelling State to pay the cost of representation. (7) The right of an alien to the free assistance of an interpreter if he or she cannot understand or speak the language used by the competent authority, which is set out in paragraph 1 (f) and recognized in the legislation of a number of States, is an essential element of the right to be heard, which is set out in paragraph 1 (c). It is also of some relevance to the right to be notified of the expulsion decision and theright to challenge that decision, to which paragraphs 1 (a) and (b) of this draft article refer... .” Judgment of the International Court of Justice (ICJ) of 30 November 2010 in the case of Ahmadou Sadio Diallo 78. On 30 November 2010 the International Court of Justice (ICJ) delivered a judgment in the case concerning Ahmadou Sadio Diallo (( Republic of Guinea v. Democratic Republic of the Congo ), Merits, Judgment, ICJ Reports 2010, p.639). The ICJ considered Guinea’s claim that Mr. Diallo’s expulsion had been in breach of Article 13 of the Covenant and Article 12 § 4 of the African Charter on Human and Peoples’ Rights (the “African Charter”). The Court observed that, in order to comply with these provisions, the expulsion of an alien lawfully in the territory of a State which was a party to these instruments could be decided in accordance with the domestic law applicable in that respect — which itself had to be compatible with the other requirements of the Covenant and the African Charter — and must not be arbitrary in nature. The ICJ took the view that the expulsion decree had not complied with the provisions of Congolese law for two reasons: it had not been preceded by consultation of the national competent authority and it was not “reasoned”, as required by the national law. It followed that in these two respects the expulsion had not been decided “in accordance with law” and was in violation of Article 13 of the Covenant and Article 12 § 4 of the African Charter. The ICJ further considered that Guinea was justified in contending that the right afforded by Article 13 of the Covenant to an alien who was subject to an expulsion measure to “submit the reasons against his expulsion and to have his case reviewed by the competent authority” had not been respected in the case of Mr. Diallo. The ICJ also noted that the Democratic Republic of the Congo had failed to demonstrate the “compelling reasons of national security” which supposedly justified Mr. Diallo being denied the right to submit the reasons against his expulsion and to have his case reviewed by the competent authority. The ICJ concluded that, on these grounds too, Article 13 of the Covenant had been violated in respect of the circumstances of Mr. Diallo’s expulsion. COMPARATIVE LAW MATERIAL 79. In the light of the comparative law material available to the Court concerning forty Council of Europe member States, the legislation in the vast majority of those States permits limitations on the right of access to classified documents and confidential information that have been submitted in support of an expulsion on national security grounds, including in the course of the judicial proceedings. 80. As to the extent of the factual information notified to the aliens in the context of expulsion proceedings on national security grounds, in six of the member States studied the aliens are in general fully informed of the case against them, although access to classified information may be restricted. In thirteen member States the aliens are informed in general terms of the facts on which the expulsion decision is based, but the national security issues underlying the decision are not fully disclosed. In seventeen member States, aliens are informed of the case against them in general terms but no information is given about classified evidence. 81. In Armenia there are no limitations on access to classified documents in the context of expulsion proceedings on national security grounds. In eleven of the member States the courts decide whether and to what extent the alien should have access to classified evidence. In twelve other States the alien in principle has no access to classified evidence. In some of those twelve States a court or another competent authority can nevertheless grant the alien access to classified information in specific circumstances. In seven of the member States studied, access to classified documents can be limited by the national authorities. In two States neither the alien nor his/her representative have access to this type of document. 82. In twenty-four member States, when access to classified documents is denied and the alien is not informed of the accusations against him, the courts must weigh up the various interests at stake. In the United Kingdom the special advocate analyses these interests when examining the relevance of the case submitted by the Secretary of State for the non-disclosure of classified documents. In four other member States, the courts may weigh up the interests at stake. In a fifth State there have been some cases where the courts did weigh up the interests and other cases where they did not. 83. In thirteen member States the courts can verify whether the classification of documents is properly justified by reasons of national security, while in sixteen other States they do not have the power to do so. 84. In Finland the courts can themselves declassify documents should they deem it necessary. In seven other member States the courts can request declassification of confidential information or documents, but they cannot declassify such information themselves. In fifteen member States the courts have no power to request declassification or to declassify documents themselves. 85. In twenty-two member States, domestic courts can verify the accuracy and relevance of the information in classified documents submitted to them. In eight other States, the domestic courts have no such power. 86. In seventeen member States, lawyers representing the alien can have access to classified material. In fifteen others the lawyers have no such access. In some of those fifteen, a lawyer may be able to gain access to classified documents after obtaining the necessary security clearance. The institution of a “special advocate” exists in Norway and the United Kingdom. 87. In Iceland there is no legal basis for the removal of lawfully resident aliens on national security grounds and in Liechtenstein such removal relates only to criminal cases. THE LAW ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 7 TO THE CONVENTION 88. Relying on Article 1 § 1 of Protocol No. 7 and Article 13 of the Convention, the applicants complained that they had not been afforded sufficient procedural safeguards and therefore had not been able to defend themselves effectively in the proceedings initiated by the application to have them declared undesirable persons in Romania on national security grounds. More specifically they alleged that they had not been notified of the actual accusations against them, even though they did not have access to the documents in the file. 89. The Government contested the applicants’ arguments. 90. The Court, being master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 113-15 and 126, 20 March 2018), finds it appropriate to examine the applicants’ allegations solely under Article 1 of Protocol No. 7 to the Convention, of which the relevant part reads as follows: “1. An alien lawfully resident in the territory of a State shall not be expelled therefrom except in pursuance of a decision reached in accordance with law and shall be allowed: (a) to submit reasons against his expulsion, (b) to have his case reviewed, and (c) to be represented for these purposes before the competent authority or a person or persons designated by that authority.” Admissibility 91. The Court reiterates that the safeguards provided for by Article 1 of Protocol No. 7 apply only to aliens who are “lawfully resident” in the territory of a State which has ratified this Protocol (see Georgia v. Russia (I) [GC], no. 13255/07, § 228, ECHR 2014, and Sejdovic and Sulejmanovic v. Italy (dec.), no. 57575/00, 14 March 2002). In the present case the applicants arrived in Romania to continue their university studies and had obtained long-stay visas for that purpose (see paragraphs 9-10 above). They were thus “lawfully resident” in Romania when the expulsion proceedings were initiated against them. Consequently, given that they were facing expulsion at a time when they were aliens lawfully residing in Romania, Article 1 of Protocol No. 7 is applicable ratione materiae in the present case. 92. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties’ submissions and observations of the third-party interveners The parties’ submissions and observations of the third-party interveners The parties’ submissions and observations of the third-party interveners (a) The applicants 93. The applicants complained that the principle of the equality of arms had been breached, on the grounds that neither they nor their lawyers had been able to take cognisance of the actual accusations against them, as the proceedings had been based on documents classified as “secret”. 94. They alleged that neither the administrative nor the judicial authorities had informed them of the acts of which they had stood accused. In their submission, the fact of being informed before the Court of Appeal, by an interpreter, about the proposed measure against them and the corresponding provisions of Romanian law did not amount to the “communication” of the application initiating the proceedings. They added that, in any event, the application itself did not contain any indication of the content of the accusations against them. 95. The conditions imposed by the various applicable legal provisions in order to ensure the protection of classified information (see paragraphs 43 and 51 above) had prevented the national courts from informing them of any specific accusations. 96. The applicants further pointed out that the SRI press release of 6 December 2012 (see paragraph 30 above) had made public some more detailed information on the activities of which they had been accused. Such a difference in approach between the Court of Appeal and the SRI as to the extent of the information that could be disclosed to the public called into question, in the applicants’ view, the need for that information to be classified. 97. The applicants added that there was nothing in the case file to suggest that the documents, which had been presented as falling under the “secret” category, had had to be classified. The domestic courts were not required by law to verify whether the classification of the information by the SRI was justified or to analyse the reasons given by the latter for its refusal to transmit the classified documents to those concerned. Similarly, the law did not allow the domestic courts themselves to declassify any classified documents or information (see paragraph 51 above). 98. They further stated that Romanian law did not impose, in this type of case, any obligation on the judicial authorities to ensure that those concerned were assisted by a lawyer or to inform them of such a possibility, or to point out that some lawyers held an ORNISS certificate. They admitted that in accordance with the statutory provisions governing civil procedure they could theoretically have been assisted before the Court of Appeal by a lawyer of their choosing. However, given the speed with which the proceedings had been held and the distance they had had to travel for the hearing before the Court of Appeal, they had not had enough time to find a lawyer. 99. As to the possibility for the lawyers who had represented them in the High Court to obtain an ORNISS certificate, they alleged that the length of the procedure for that purpose was much longer than the procedure under Romanian law for the purposes of declaring a person undesirable (see paragraphs 35 and 54 above). As regards the possibility of being represented from the start of the proceedings by a lawyer who held an ORNISS certificate, the applicants stated that, according to their research, the website of the Bucharest Bar contained no information to enable them to identify an authorised lawyer. They referred to a letter of the National Union of Romanian Bars, which explained that there was no list of the lawyers who held an ORNISS certificate (see paragraph 58 above). They argued that, in any event, having regard to the applicable domestic rules (see paragraphs 43 and 51 above), even a lawyer holding an ORNISS certificate would not have been able to disclose the classified information to them. 100. They explained that, even though it was not prohibited under the statutory provisions applicable to this type of procedure for the court to verify the information submitted to it by the SRI and the public prosecutor, including by the taking of evidence of its own motion, they had doubts about the extent of the review by the national courts as to the well ‑ foundedness of the measure against them. In this context they pointed to the refusal by the High Court, without giving any reasoning, to grant their request to obtain, by official means, certain bank information concerning them. They took the view that the proceedings had been a mere formality and that the court had simply assumed that the SRI’s request and the public prosecutor’s application initiating the proceedings had been well founded. 101. Lastly, the applicants alleged that they had sustained damage as a result of their expulsion, entailing their inability to pursue their university studies and their social isolation, including from their families, and that their reputations had been tarnished on account of the serious accusations against them. They alleged that after returning to Pakistan they had been subjected to an investigation in order to verify the accusations of terrorist acts but it had not yielded any results. (b) The Government 102. The Government stated that preventing and combating threats to national security were priority tasks for the national security authorities. The SRI was the legally established national authority responsible for preventing and combating terrorism, and as such it was competent to request the limitation of certain rights of aliens in Romania. Similarly, in order to prevent terrorist acts, in cooperation with other authorities acting in the field of national security, the SRI was competent to collect, verify and use, through special techniques, the information necessary for the prevention of terrorism. In accordance with the relevant legal provisions (see paragraph 51 above), the information thus obtained by the SRI, together with the means and equipment used to obtain it, was classified as “State secret” information. 103. The Government explained that the exclusion and expulsion of an alien were administrative measures to prevent or combat terrorism. As to the conduct of this procedure, they stated first of all that it was the SRI which transmitted to the public prosecutor’s office at the Bucharest Court of Appeal the intelligence that it regarded as justifying an application to have an alien declared undesirable in Romania. If, after an assessment of that intelligence, the public prosecutor considered the SRI’s request to be well founded, he or she would refer the matter to the Bucharest Court of Appeal. The application initiating the court proceedings, which contained the legal characterisation of the accusations against the alien and sometimes certain specific factual material, was notified to the person concerned. 104. The Government explained that, under domestic law, the national courts competent to deal with such cases, and of which they emphasised the independence and impartiality, had access to all classified documents on which the prosecution’s application was based. Even if those courts were not themselves competent to declassify the classified data and information made available to them, they could ask the competent authority to analyse the desirability of declassifying or reclassifying the documents for the purpose of placing them on file for consultation by the interested party. Moreover, there was no statutory provision allowing national courts to examine of their own motion whether the classification of the information in question was justified. However, where the legality of the classification of documents was challenged in the context of the appeal, the competent court might review the matter within the confines of the law. 105. Referring to the examples of case-law they had submitted (see paragraphs 60-61 above), the Government further indicated that, as a general rule, after having first examined the classified documents forwarded by the public prosecutor’s office, the Court of Appeal would notify the person concerned of the information it considered sufficient to enable him or her, with the help of an interpreter, to understand the essence of the facts underlying the proceedings. However, they pointed out that the court would not disclose data which, in its opinion, might have a bearing on national security. They argued that, in order to fulfil their obligation to inform aliens of the accusations against them, Romanian courts were required to strike a fair balance between the competing interests at stake: on the one hand, to provide aliens with sufficient information to enable them to defend themselves and, on the other, to comply with the legal provisions governing the confidentiality of classified information. 106. The Government submitted that the practice of Romanian courts to inform aliens of the essence of the accusations against them was in line with both the case-law of the Court of Justice of the European Union (judgment of the CJEU of 10 September 2014 in Ben Alaya v. Bundesrepublik Deutschland, C-491/13, EU:C:2014:2187, paragraph 33, and judgment of the CJEU of 4 June 2013 in ZZ v. Secretary of State for the Home Department, C-300/11, ECLI:EU:C:2013:363) and of the Court ( Regner v. the Czech Republic [GC], no. 35289/11, 19 September 2017). They noted that, while the practice of domestic courts fluctuated until 2015 or 2016 as to the extent of the factual information to be disclosed to aliens in this type of proceedings, after that period the case-law had become consolidated in the sense of providing specific information to those concerned. In the present case they argued that, even assuming, as the applicants claimed, that the Court of Appeal had not provided them with sufficient factual information about the suspicions against them, they had at least taken cognisance of those suspicions as a result of the SRI press release of 6 December 2012. They explained in this regard that the SRI might inform the public, through press releases, about information of public interest, but it never disclosed classified information. 107. The Government emphasised, referring to the examples of case-law they had provided to the Court (see paragraphs 62-63 above) that, when national courts made their examination of the need to declare an alien undesirable, they would take into account not only classified documents but also any other evidence or information brought to their attention by the person concerned, also having regard to the potential consequences for national security of the activities of which the aliens were suspected if they were not removed from the country. Where the decision to declare a person undesirable was based on classified data or information related to national security, the law expressly prohibited any mention of such classified material in the text of the decision. 108. Lastly, the Government stated that, under domestic law, an alien who was the subject of proceedings to have him or her declared undesirable was not allowed to consult classified documents. However, he or she could be represented by a lawyer holding an ORNISS certificate and the lawyer would have such access. If the lawyer chosen by the alien concerned did not hold such a certificate, that lawyer could request the adjournment of the proceedings in order to take the necessary steps to obtain one or to contact a lawyer already holding such a certificate. In the Government’s view, even though the lawyer holding an ORNISS certificate had to comply with the legal provisions concerning the protection of the classified documents consulted, he or she would nevertheless be able to prepare the alien’s defence accordingly and seek evidence to counter the information contained in the classified documents. The Government added that in the present case the lawyers chosen by the applicants had not held an ORNISS certificate and that they had not made a request for adjournment of the proceedings for the purpose of taking steps to obtain such a certificate or of seeking to be replaced by other lawyers so authorised. 109. The Government concluded that, in the present case, the applicants had enjoyed sufficient safeguards to meet the requirements of Article 1 of Protocol No. 7 and the Court’s case-law in such matters. Even though the applicants’ right of access to classified data and information had been limited, they had received sufficient information to prepare their defence. The decision against them had been rendered in compliance with the applicable legal provisions. Their case had been examined effectively by two independent and impartial courts which had had access to all the documents and had established the need to protect national security by removing them from Romania. They had appeared in person and had been represented by lawyers at the hearings of those courts. (c) Third-party interveners (i) Helsinki Foundation for Human Rights and the Association for Legal Intervention 110. The Helsinki Foundation for Human Rights and the Association for Legal Intervention ( Stowarzyszenie Interwencji Prawnej ) took the view that, irrespective of whether or not the court taking the decision had access to the classified documents, the minimum procedural safeguards imposed by Article 1 of Protocol No. 7 could not be guaranteed unless the aliens being deported were informed of the main grounds on which the decision against them was based. The aliens, or if appropriate their representative, had to be made aware of the factual reasons underlying the expulsion, in order for the proceedings to be consistent with the relevant case-law of the CJEU, with EU legislation and with United Nations standards in matters of expulsion of aliens. (ii) Amnesty International 111. Amnesty International was of the view that the safeguards inherent in the right to a fair trial could be transposed to the subject-matter of Article 1 of Protocol No. 7. Thus the principle of adversarial proceedings and the equality of arms, the obligation of the courts to provide reasons for their decisions and the protection against arbitrariness should preclude the use in judicial proceedings of classified documents to which the individual or his legal representative had no access and in the absence of which the individual could not usefully prepare his or her defence. The use of such documents would be all the more problematic where the person concerned alleged that, in the event of expulsion, he or she would be exposed to treatment prohibited by Article 3 of the Convention. (iii) The United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism 112. The United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism stated that the use of classified evidence, whether the proceedings were criminal, civil or migration-related, must remain exceptional because it ran counter to the principle of free access to a court, the adversarial principle and the equality of arms. The Special Rapporteur took the view that the concept of “national security” must be defined precisely in order to avoid its improper use and that the authorities had a duty to prove that a case fell within national security. The use of classified evidence, which was often not properly regulated by domestic law, had to remain exceptional and be subjected to a very stringent admissibility test. She drew attention to the fact that deportation proceedings might have a significant impact on an individual, where the classified information indicated that he or she could be involved in terrorist activity or linked to a terrorist group, on account of the practical consequences that such a characterisation might have for the person concerned. The Court’s assessment 113. The Court notes that the applicants relied on the right to be informed, during the proceedings initiated by the application to have them declared undesirable, of the specific factual reasons underlying that application. They also submitted that the refusal to allow them to consult the classified documents submitted by the public prosecutor’s office to the Court of Appeal in support of the application for their expulsion had breached their right of access to the case file. (a) General principles (i) The Court’s case-law 114. The Court reiterates that, as a matter of well-established international law and subject to their treaty obligations, the States have the right to control the entry, residence and expulsion of aliens. The Convention does not guarantee the right of an alien to enter or to reside in a particular country (see, among many other authorities, De Souza Ribeiro v. France [GC], no. 22689/07, § 77, ECHR 2012, and Ilias and Ahmed v. Hungary [GC], no. 47287/15, § 125, 21 November 2019). 115. Administrative proceedings concerning the expulsion of an alien do not pertain to the determination of a civil right or obligation, or of a criminal charge, for the purposes of Article 6 § 1 (see Maaouia v. France [GC], no. 39652/98, § 38, ECHR 2000 ‑ X). The States, being aware that Article 6 of the Convention did not apply to procedures for the expulsion of aliens, wished to take special measures in that sphere and thus adopted Article 1 of Protocol No. 7, which defines the procedural safeguards applicable to this type of procedure (ibid., § 36; see also points 6, 7 and 16 of the Explanatory Report on Protocol No. 7 cited in paragraph 68 above). 116. Article 1 § 1 of Protocol No. 7 refers expressly to aliens “lawfully resident in the territory of a State” (see Georgia v. Russia (I), cited above, § 228) and who, in the event of expulsion, enjoy the specific safeguards provided for by this provision (see C.G. and Others v. Bulgaria, no. 1365/07, § 70, 24 April 2008, and Ljatifi v. the former Yugoslav Republic of Macedonia, no. 19017/16, § 32, 17 May 2018). Article 1 § 2 of Protocol No. 7 provides for an exception, enabling States to expel an alien who is lawfully resident on its territory even before he or she has exercised the rights afforded under Article 1 § 1, in cases where such expulsion is necessary in the interests of public order or for reasons of national security. 117. According to the Explanatory Report on Protocol No. 7, in adopting Article 1 of Protocol No. 7 the States agreed to “minimum” procedural safeguards in the event of expulsion (see point 7 of the Explanatory Report quoted in paragraph 68 above). 118. Article 1 § 1 of Protocol No. 7 establishes as the first basic safeguard that the person concerned may be expelled only “in pursuance of a decision reached in accordance with law”. This phrase has a similar meaning throughout the Convention and its Protocols (see C.G. and Others v. Bulgaria, cited above, § 73). It concerns not only the existence of a legal basis in domestic law, but also the quality of the law in question: it must be accessible and foreseeable and must also afford a measure of protection against arbitrary interference by the public authorities with the Convention rights (see Lupsa v. Romania, no. 10337/04, § 55, ECHR 2006 ‑ VII, and Baltaji v. Bulgaria, no. 12919/04, § 55, 12 July 2011). This applies equally to Convention provisions which lay down procedural rights, as does Article 1 of Protocol No. 7, for it is well-established case-law that the rule of law, which is expressly mentioned in the Preamble to the Convention, is inherent in all the Articles of the Convention (see Baka v. Hungary [GC], no. 20261/12, § 117, 23 June 2016). Arbitrariness entails a negation of the rule of law (see Al-Dulimi and Montana Management Inc. v. Switzerland [GC], no. 5809/08, § 145, 21 June 2016) and could not be more tolerated in respect of procedural rights than it is in respect of substantive rights. 119. In addition to the general condition of legality, Article 1 § 1 of Protocol No. 7 provides for three specific procedural safeguards: aliens must be able to submit reasons against their expulsion, to have their case reviewed and, lastly, to be represented for these purposes before the competent authority (see point 12 of the Explanatory Report cited in paragraph 68 above). 120. In certain cases, the Court has had occasion to examine, besides the quality of the domestic law, the safeguards enumerated in Article 1 § 1 of Protocol No. 7. In order to ascertain whether these safeguards were afforded in the relevant cases, it took account of the following circumstances: the order initiating the proceedings had not been notified to the alien (see Lupsa, cited above, § 59); the courts had refused to examine on the merits an appeal against the expulsion decision and no independent or impartial authority had examined that decision (see Baltaji, cited above, § 57); the applicant had not been able, at any stage in the proceedings, to ascertain even the slightest factual reasons for his expulsion, so that he was unable to submit reasons against that decision (see Lupsa, cited above, § 59; Ahmed v. Romania, no. 34621/03, § 53, 13 July 2010; Geleri v. Romania, no. 33118/05, § 46, 15 February 2011; and Baltaji, cited above, § 58); the competent court had rejected any request for adjournment, thus preventing the applicant’s lawyer from studying the order against him (see Lupsa, cited above, § 59); and the review by the domestic courts had been a mere formality (see C.G. and Others v. Bulgaria, cited above, §§ 73-74; Kaushal and Others v. Bulgaria, no. 1537/08, § 49, 2 September 2010; Geleri, cited above, § 48; and Takush v. Greece, no. 2853/09, §§ 60-63, 17 January 2012). 121. More recently, in the case of Ljatifi (cited above), in examining the compatibility with Article 1 § 1 (a) and (b) of Protocol No. 7 of an expulsion decision on national security grounds, the Court summed up the applicable principles as follows: “35. In so far as the impugned order was based on national security considerations, the Court has held that the requirement of foreseeability does not go so far as to compel States to enact legal provisions listing in detail all conduct that may prompt a decision to expel an individual on national security grounds. However, even where national security is at stake, the concepts of lawfulness and the rule of law in a democratic society require that deportation measures affecting fundamental human rights be subject to some form of adversarial proceedings before an independent authority or a court competent to effectively scrutinise the reasons for them and review the relevant evidence, if need be with appropriate procedural limitations on the use of classified information. The individual must be able to challenge the executive’s assertion that national security is at stake. While the executive’s assessment of what poses a threat to national security will naturally be of significant weight, the independent authority or court must be able to react in cases where the invocation of this concept has no reasonable basis in the facts or reveals an interpretation of ‘national security’ that is unlawful or contrary to common sense and arbitrary (see C.G. and Others [ v. Bulgaria ], cited above, § 40).” 122. In the context of Article 1 of Protocol No. 7 the Court has taken into account the fact that the object and purpose of the Convention, as an instrument of human rights protection, call for an understanding and application of its provisions such as to render its safeguards practical and effective, not theoretical and illusory (see Geleri, cited above, § 48, and Takush, cited above, § 63). This is a general principle of interpretation of all the provisions of the Convention and the Protocols thereto (see, for example, Artico v. Italy, 13 May 1980, § 33, Series A no. 37; Soering v. the United Kingdom, 7 July 1989, § 87, Series A no. 161; and Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 121, 8 November 2016). 123. It follows from the foregoing that in cases concerning Article 1 § 1 of Protocol No. 7 the Court has always sought to ensure that the expulsion decision was not arbitrary (see paragraphs 116 and 121 above) and that the alien was able to exercise effectively the rights enumerated in that first paragraph (see paragraphs 119 and 121 above). 124. The Court will examine successively, in the light of the above case ‑ law, whether, and if so to what extent, the rights asserted by the applicants are protected by Article 1 of Protocol No. 7 (ii), the possibility of restricting them (iii), and the criteria to be taken into account in determining the compatibility of a limitation of those rights with Article 1 of Protocol No. 7 (iv). (ii) Whether, and if so to what extent, the rights asserted by the applicants are protected by Article 1 of Protocol No. 7 125. The Court observes that the rights asserted by the applicants, namely the right to be informed of the reasons for their expulsion and the right to have access to the documents in the case file, are not expressly mentioned in the text of Article 1 of Protocol No. 7. It is thus for the Court to determine, bearing in mind that the Convention secures rights which are “practical and effective”, whether and, if so to what extent, those rights may be regarded as required by the first paragraph of that Article. 126. The Court reiterates that the condition laid down in Article 1 § 1 of Protocol No. 7, namely that an alien cannot be expelled except in pursuance of a decision reached “in accordance with law” implies, as mentioned above, that the law in question satisfies the quality criteria required by the Court’s case-law in such matters, including the quality of ensuring protection against arbitrariness on the part of the authorities (see paragraph 118 above). In addition, Article 1 § 1 (a) of Protocol No. 7 expressly guarantees the right for the alien to submit reasons against his expulsion. In the Court’s opinion, an alien cannot meaningfully challenge the authorities’ allegations to the effect that national security is at stake, or reasonably submit reasons against his expulsion without being aware of the relevant factual elements which have led the domestic authorities to believe that the alien represents a threat to national security. Such information is essential in order to ensure the effective exercise by the alien of the right enshrined in Article 1 § 1 (a) of Protocol No. 7. 127. In the cases previously examined by the Court under Article 1 of Protocol No. 7, the applicants had not been informed of the specific accusations against them, or even of the general context on which the expulsion was based, as the submissions initiating the proceedings had merely referred to intelligence to the effect that they had engaged in activities capable of endangering national security (see, for example, Lupsa, cited above, § 10; Kaushal and Others, cited above, § 6; Baltaji, cited above, § 9; and Ljatifi, cited above, § 7). In those cases the Court required that at least an “independent body or tribunal” should be informed of the “grounds for the decision and the relevant evidence”, but without addressing the question whether it was also necessary for those grounds to be disclosed to the person concerned. However, the Court has found that Article 1 of Protocol No. 7 enshrines a right for the alien to be notified of the accusations against him (see Lupsa, cited above, § 59) and it has always found fault with a failure to provide any information to those concerned about the reasons underlying an expulsion decision (see Lupsa, cited above, §§ 40 and 56; Ahmed, cited above, § 53; Kaushal and Others, cited above, §§ 30 and 48; Baltaji, cited above, § 58; and Ljatifi, cited above, §§ 36-39). 128. As to the right of access to the documents in the file, this has not so far been enshrined as such in the Court’s case-law under Article 1 of Protocol No. 7. The Court has nevertheless had occasion to state, even where national security was at stake, that deportation measures must be subject to some form of adversarial proceedings, if need be with appropriate procedural limitations as to the use of classified information (see Ljatifi, cited above, § 35). In the Court’s opinion, this implies that, under Article 1 of Protocol No. 7, a right is secured to the alien to be informed, preferably in writing and in any event in a way allowing an effective defence, of the content of the documents and the information relied upon by the competent national authority which is deciding on the alien’s expulsion, without prejudice to the possibility of imposing duly justified limitations on such information if necessary. 129. Having regard to the foregoing, the Court finds that Article 1 § 1 of Protocol No. 7 requires in principle that the aliens concerned be informed of the relevant factual elements which have led the competent domestic authorities to consider that they represent a threat to national security and that they be given access to the content of the documents and the information in the case file on which those authorities relied when deciding on their expulsion. (iii) Permissible limitations of both the right to be informed of relevant factual elements underlying the expulsion decision and the right of access to the content of the documents and the information relied upon by the competent national authority 130. Nevertheless, these rights are not absolute. As in certain criminal proceedings, administrative expulsion proceedings may also be characterised by the presence of competing interests – such as national security, the need to protect witnesses at risk of reprisals or the requisite secrecy of police investigation methods – which must be weighed in the balance against the rights of the alien (see, among many other authorities, Jasper v. the United Kingdom [GC], no. 27052/95, § 52, 16 February 2000, for an example of criminal proceedings, and Regner, cited above, § 148, for administrative proceedings). The Court has also found that Contracting States enjoy a certain margin of appreciation in such matters (see Regner, cited above, § 147). 131. The Court has also accepted limitations of an applicant’s rights to access the file and to be informed of the accusations in cases concerning expulsion proceedings where national security was invoked (see, among other authorities, Al-Nashif v. Bulgaria, no. 50963/99, § 137, 20 June 2002, concerning Articles 8 and 13 of the Convention, and Ljatifi, cited above, § 35, concerning Article 1 of Protocol No. 7). Moreover, the Court finds that, as regards the possibility of limiting the procedural rights of aliens facing expulsion, the vast majority of member States expressly provide in their domestic legislation for the possibility of such limitations where national security is at stake (see paragraph 79 above). 132. The Court reiterates that it is acutely conscious of the extent of the danger represented by terrorism and the threat it poses to society, and consequently of the importance of counterterrorism considerations. It is also aware of the considerable difficulties currently faced by States in protecting their populations against terrorist violence (see, among other authorities, Öcalan v. Turkey [GC], no. 46221/99, § 179, ECHR 2005 ‑ IV; A. and Others v. the United Kingdom [GC], no. 3455/05, § 126, ECHR 2009; and A. v. the Netherlands, no. 4900/06, § 143, 20 July 2010). Accordingly, Article 1 of Protocol No. 7 should not be applied in such a manner as to put disproportionate difficulties in the way of the competent authorities in taking effective measures to counter terrorism and other serious crimes, in the discharge of their duty under Article 2, Article 3 and Article 5 § 1 of the Convention to protect the right to life and the right to bodily security of members of the public (see, mutatis mutandis, Sher and Others v. the United Kingdom, no. 5201/11, § 149, ECHR 2015 (extracts), and Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 252, 13 September 2016). 133. Nevertheless, any limitations of the rights in question must not negate the procedural protection guaranteed by Article 1 of Protocol No. 7 by impairing the very essence of the safeguards enshrined in this provision (see, mutatis mutandis, Regner, cited above, § 148). Even in the event of limitations, the alien must be offered an effective opportunity to submit reasons against his expulsion and be protected against any arbitrariness. The Court will therefore first ascertain whether the limitations of the alien’s procedural rights have been found to be duly justified by the competent independent authority in the light of the particular circumstances of the case. The Court will then examine whether the difficulties resulting from these limitations for the alien concerned were sufficiently compensated for by counterbalancing factors. Thus, only limitations which, in the circumstances of each case, are duly justified and sufficiently counterbalanced will be permissible in the context of Article 1 of Protocol No. 7. (iv) Criteria used to determine whether limitations imposed on the right to be informed of the relevant factual elements underlying the expulsion decision and the right of access to the content of the documents and the information relied upon by the competent national authority are compatible with Article 1 § 1 of Protocol No. 7 134. The Court observes that it has previously found, under Article 6 of the Convention, that even where national security or public order interests were involved, only those limitations of procedural rights which did not impair the very essence of those rights would be legitimate (see, for example, Regner, cited above, § 148; see also, mutatis mutandis, Fayed v. the United Kingdom, 21 September 1994, § 54, Series A no. 294 ‑ B, and Omar v. France, 29 July 1998, § 34, Reports of Judgments and Decisions 1998 ‑ V). When confronted with limitations on certain procedural rights, it has frequently taken the view that the effects of such limitations on the situation of those concerned must be sufficiently counterbalanced by the procedures followed by the national authorities (see, for example, Jasper, cited above, § 52; Fitt v. the United Kingdom [GC], no. 29777/96, § 45, ECHR 2000-II, with further references; Schatschaschwili v. Germany [GC], no. 9154/10, § 107, ECHR 2015, concerning Article 6 of the Convention; and A. and Others v. the United Kingdom, cited above, § 218, concerning Article 5 § 4 of the Convention). 135. While it cannot be inferred from the above references to the case-law under Articles 5 and 6 of the Convention that the extent of the procedural safeguards should necessarily be the same under Article 1 § 1 of Protocol No. 7, this case-law nevertheless provides useful indications as to the methodology to be followed in assessing limitations of the rights guaranteed by Article 1 of Protocol No. 7. 136. Thus, the Court will now determine under what circumstances limitations of the right to be informed of the factual elements underlying the expulsion decision and/or limitations of the right of access to the content of the documents and the information relied on by the national authority competent to decide on the expulsion are compatible with Article 1 § 1 of Protocol No. 7. For the sake of convenience, those rights will be referred to below as the alien’s “procedural rights”. 137. For this purpose, the Court considers that it must first ascertain whether the restrictions in question were duly justified in the circumstances of the case and subsequently assess whether those limitations were sufficiently counterbalanced, in particular by procedural safeguards, such as to preserve the very essence of the relevant rights (see paragraph 133 above). 138. The Court will carry out its examination having regard to the circumstances of a given case, taking into account the proceedings as a whole. This approach is consistent with the role of the Court, whose task is not to review the relevant law and practice in abstracto, but to determine whether the manner in which they affected the applicant gave rise to a violation of the Convention (see, mutatis mutandis, N.C. v. Italy [GC], no. 24952/94, § 56, ECHR 2002 ‑ X). (α) Whether the limitation on the aliens’ “procedural rights” was duly justified 139. The Court accepts that there may be duly justified reasons, such as the need to protect national security, for limitations to be imposed on the alien’s procedural rights. In accordance with the principle of subsidiarity, it falls primarily to the national authorities to assess whether limitations on an alien’s procedural rights are needed in a given case and are duly justified (see, mutatis mutandis, Schatschaschwili, cited above, § 119). The Court will therefore examine the decision-making procedure in which the limitation of the alien’s procedural rights was imposed. In this connection, the Court reiterates that, in a democratic society governed by the rule of law, this assessment of the necessity of the limitation of an alien’s procedural rights should be surrounded by safeguards against arbitrariness (see paragraph 118 above). Requirements to that end include the need for the decision imposing such restrictions to be duly reasoned and, particularly in the event that those reasons are not disclosed to the person concerned, a procedure allowing for these reasons to be properly scrutinised. 140. In order for such scrutiny to be in accordance with the rule of law, which opposes legal discretion being granted to the executive in terms of an unfettered power (see, mutatis mutandis, Amann v. Switzerland [GC], no. 27798/95, § 56, ECHR 2000 ‑ II), it should be entrusted to an authority, judicial or not, which is independent from the executive body seeking to impose the limitation (see, mutatis mutandis, Klass and Others v. Germany, 6 September 1978, §§ 55-56, Series A no. 28, and Roman Zakharov v. Russia [GC], no. 47143/06, § 233, ECHR 2015). In this connection, it is to be noted that in the context of examining the compatibility with Article 1 § 1 (a) and (b) of Protocol No. 7 of an expulsion decision taken on national security grounds, the Court has stressed the need for independent scrutiny in respect of an assessment of those grounds (see Ljatifi, cited above, § 35). 141. The question whether an independent national authority has examined the need for limitations on the alien’s procedural rights is thus the first criterion to be applied in the Court’s examination under Article 1 of Protocol No. 7. In that context, the Court will attach weight to the scope of the remit of that national authority, and in particular consider whether it is entitled to review the need to maintain the confidentiality of the classified information (see, mutatis mutandis, Regner, cited above, § 152). 142. The Court will then also have to examine the powers vested in the independent authority, depending on its findings in a given case as to the need to limit an alien’s procedural rights. More specifically, it should ascertain, in cases where the independent authority has found that national security did not justify the refusal to disclose to the alien concerned the content of the documents and of the information relied upon by the authority having decided on the expulsion, whether that independent authority was entitled to ask the competent body in matters of national security to review the classification of the documents or whether it was itself able to declassify them (ibid.), so that they could be transmitted to the alien, or at least so that the latter could be notified of their content. 143. By contrast, where it was found by the independent authority that the protection of national security did preclude the disclosure to the alien of the content of the classified documents, the Court must determine whether, in reaching that conclusion, the authority duly identified the interests at stake and weighed up the national security interests against the alien’s interests. 144. However, should the national authorities have failed to examine – or have insufficiently examined and justified – the need for limitations on the alien’s procedural rights, this will not suffice in itself to entail a violation of Article 1 § 1 of Protocol No. 7. In any event, the Court will also ascertain whether any counterbalancing measures have been applied in the case at hand and, if so, whether they were sufficient to mitigate the limitations of the alien’s procedural rights, such as to preserve the very essence of those rights. 145. As regards the examination by the national authorities of the need to place limitations on the alien’s procedural rights, the less stringent the examination, the stricter the Court’s scrutiny of the counterbalancing factors will have to be (see, for the methodology, mutatis mutandis, Ibrahim and Others, cited above, § 265; see also paragraph 133 above). To be precise, an excessively cursory examination at national level of the need to limit the rights in question will call for the implementation of enhanced counterbalancing factors in order to ensure the preservation, depending on the circumstances of the case, of the very essence of the rights secured by Article 1 § 1 of Protocol No. 7 (see paragraph 133 above). 146. In its assessment, the Court will be guided by two basic principles: first, the more the information available to the alien is limited, the more the safeguards will be important, in order to counterbalance the limitation of his or her procedural rights; second, where the circumstances of a case reveal particularly significant repercussions for the alien’s situation, the counterbalancing safeguards must be strengthened accordingly. (β) Whether the limitations on the alien’s “procedural rights” were sufficiently compensated for by counterbalancing factors 147. In the second stage of its examination (see paragraph 136 above), the Court will ascertain whether the limitations on the alien’s procedural rights have been counterbalanced by appropriate and adequate safeguards. 148. In this connection the Court notes that it cannot be seen from the information at its disposal that there is a European consensus as to the types of factors that would be capable of counterbalancing the limitations of aliens’ procedural rights or as to the scope of such factors. Limitations on the right of access to classified documents and on the disclosure of the reasons underlying the expulsion decision may be mitigated through mechanisms which vary according to the specificities of the legislation or procedure put in place in a given country (see paragraphs 82-86 above). 149. The Court infers from the above that under Article 1 of Protocol No. 7, the States should be afforded a certain margin of appreciation in the choice of factors to be put in place in order to counterbalance any limitation of procedural rights. This margin of appreciation nevertheless goes hand in hand with European supervision and in such cases the Court’s task is to ensure that the procedural protection guaranteed by Article 1 of Protocol No. 7 is not negated (see paragraph 133 above). 150. Where expulsion proceedings are examined as a whole, such as to assess the consequences of certain limitations on the effective exercise by aliens of their procedural rights, the following factors, enumerated non-exhaustively and based on the Court’s case-law and on the comparative analysis (see paragraphs 80-86 above), should be taken into account (see also, mutatis mutandis, Ibrahim and Others, cited above, § 274, and Beuze v. Belgium [GC], no. 71409/10, § 150, 9 November 2018). ‒ The relevance of the information disclosed to the alien as to the grounds for his or her expulsion and the access provided to the content of the documents relied upon 151. The Court’s case-law does not set in abstracto the volume of information to be provided to aliens, as this will vary depending on the circumstances of each case. The Court will therefore, in each case, take account of the relevance of the information actually disclosed to the alien with regard both to the factual elements underlying the expulsion decision and the access to the content of the documents and information relied upon by the authority making that decision. It will ascertain whether the national authorities have, to the extent compatible with maintaining the confidentiality and proper conduct of investigations, informed the alien concerned, in the proceedings, of the substance of the accusations against him or her (see, in the same vein, Lupsa, cited above, § 59; Ljatifi, cited above, § 39; and, mutatis mutandis, Regner, cited above, § 153). 152. A further question of importance is whether it falls upon a judicial or other independent authority to determine, in a given case, after examining all the classified evidence, which factual information may be disclosed to the alien concerned without endangering national security, provided it is disclosed at a stage of the proceedings when the alien is still able meaningfully to challenge that information. ‒ Disclosure to the alien of information as to the conduct of the proceedings and the domestic mechanisms in place to counterbalance the limitation of his or her rights 153. The Court further takes the view that the provision to those concerned of minimum but adequate information as to their rights under domestic law constitutes an inherent prerequisite to ensure the effective exercise of those rights (see, mutatis mutandis, Ibrahim and Others, cited above, § 272, and Beuze, cited above, § 129). In this type of case, the Court will ascertain whether the domestic authorities have provided the requisite information to the alien, at least at key stages in the proceedings. Such information will be particularly useful where aliens are not represented by a lawyer and where a lack of relevant information may result in their failure to exercise rights available to them in domestic law. Lastly, this obligation to provide information will be all the more important in cases where the rules of domestic procedure impose a certain expedition in the examination of the case. ‒ Whether the alien was represented 154. As indicated by Article 1 § 1 (c) of Protocol No. 7, aliens must be able to obtain representation before the competent authority for the purposes of the decision on their expulsion. This implies, firstly, that provisions of domestic law afford an effective possibility of representation in such cases. The possibility for an alien to be represented by a lawyer, or even by a specialised lawyer who holds the relevant authorisations to access classified documents in the case file which are not accessible to the alien, therefore constitutes a significant counterbalancing factor. The Court will further consider whether it was possible in practice for the alien to have effective access to such representation in the course of the proceedings in question. 155. The Court will regard the rights enjoyed by the alien’s representative in a given case as a further significant safeguard. On that basis it will examine, for example, the extent to which access to the documents in the case file, including classified documents not accessible to the alien, was provided to the alien’s representative. It will further consider whether or not the representative’s communication with his or her client was restricted once the access to the classified material had been obtained (see, mutatis mutandis, A. and Others v. the United Kingdom, cited above, § 220). ‒ Whether an independent authority was involved in the proceedings 156. Article 1 § 1 (a) and (b) of Protocol No. 7 provides that the alien concerned has the right to “submit reasons against his expulsion” and to “have his case reviewed”. In the Court’s opinion, the following aspects could be taken into account when assessing compliance with those provisions: (i) Whether one or more independent authorities, either administrative or judicial, were involved in the proceedings, either to adopt the expulsion measure directly or to review its legality, or even its merits (see, among many other authorities, Al-Nashif, cited above, § 137; Lupsa, cited above, § 56; and Ljatifi, cited above, § 32), and where that authority is a court, the question of its level in the hierarchy of the national legal system. In this connection, judicial scrutiny of the expulsion measure will in principle have a greater counterbalancing effect than an administrative form of scrutiny. (ii) Whether the applicant was able to challenge, in an effective manner and before an independent authority, the allegations against him according to which he or she represented a danger for national security (see Ljatifi, cited above, § 35). (iii) Whether the independent authority had the power to effectively examine the grounds underlying the expulsion application or decision, as the case may be, and the supporting evidence adduced and, if so, whether it duly exercised that power in the case at hand (see C.G. and Others v. Bulgaria, cited above, §§ 73-74; Geleri, cited above, § 48; and Ljatifi, cited above, § 35). On this point, the Court will take account of whether, to perform its task in that regard, that authority had access to the totality of the file constituted by the relevant national security body in order to make its case against the alien, including to the classified documents (see Ljatifi, cited above, § 32). Another major factor will be the power of that authority to verify the authenticity of the documents in the file, together with the credibility and veracity of the classified information adduced in support of the expulsion application or decision, as the case may be (see C.G. and Others v. Bulgaria, cited above, §§ 73-74; Kaushal and Others, cited above, § 49; and, mutatis mutandis, Regner, § 152). In this connection, there is no presumption that the State security grounds invoked by the competent national security body exist and are valid: the independent authority should be able to verify the facts in the light of the evidence submitted (see Kaushal and Others, cited above, §§ 31-32 and 49). (iv) Whether the independent authority called upon to review an expulsion decision had the power to annul or amend that decision if it found, in the light of the information in the file, that the invoking of national security was devoid of any reasonable and adequate factual basis. (v) Whether the necessity of the expulsion was sufficiently plausible in the light of the circumstances of the case and the reasoning provided by the independent authority to justify its decision. In this context the Court will ascertain whether the nature and the degree of the scrutiny applied by the national authority in respect of the case against the alien concerned transpire, at least summarily, from the reasoning of its decision. 157. In respect of that list of questions, the Court wishes to point out that compliance with Article 1 § 1 of Protocol No. 7 does not necessarily require that they should all be answered cumulatively in the affirmative. The above list only contains examples of factors that would be capable of appropriately counterbalancing any limitation of the rights enjoyed by aliens under Article 1 § 1 of Protocol No. 7, and it should be borne in mind that the assessment of the nature and extent of the counterbalancing factors to be implemented may vary depending on the circumstances of a given case (see, mutatis mutandis, Ibrahim and Others, cited above, § 274, and Beuze, cited above, § 150). In each case the Court will be required, in the light of the proceedings as a whole, to determine whether the very essence of the rights secured to the alien by Article 1 § 1 of Protocol No. 7 has been preserved (see paragraph 133 above). (b) Application of those principles to the present case (i) The limitation on the applicants’ procedural rights 158. With regard to the applicants’ right to be informed of the factual elements underlying the expulsion decision, it should be noted that, under Article 85 §§ 3 and 4 of OUG no. 194/2002, as then in force, the Court of Appeal was required to inform aliens of the facts on which the application to declare them undesirable was based, “in accordance with the provisions of the normative instruments governing activities related to national security and the protection of classified information”. Under Article 85 § 5 of OUG no. 194/2002, where the decision to declare an alien undesirable was based on national security grounds, the data and information together with the factual reasons ( motivele de fapt ) having formed the opinion of the judges could not be mentioned in the ensuing judgment. In addition, the relevant provisions of Law no. 182/2002 (see paragraphs 51 and 53 above) precluded the disclosure of classified information to persons who did not hold a certificate authorising them to access this type of document. On the basis of a combined application of these legal provisions, the national courts found in the present case that they were required by law to refrain from providing the applicants with specific information as to the facts and grounds underlying the expulsion application. 159. As regards the applicants’ right to be informed of the content of the documents and the information in the case file on which the case against them was based, the Court notes that, from the outset of the proceedings, in applying the relevant legal provisions, the domestic courts found that the applicants were not entitled to access the documents in the file as they were classified (see paragraph 21 above). 160. This entailed a significant limitation of the applicants’ right to be informed of the factual elements and the content of the documents underlying both the application for their expulsion submitted by the public prosecutor’s office and the domestic courts’ decision to order their removal from Romania. 161. The Court will now examine whether the limitations of the applicants’ procedural rights were necessary (see paragraphs 139-43 above) and whether counterbalancing measures were put in place by the national authorities to mitigate those limitations (see paragraphs 144-56 above), before assessing the concrete impact of the limitations on the applicants’ situation in the light of the proceedings as a whole (see paragraphs 136 and 144 above). In this connection, the Court notes that the applicants’ expulsion had the main effect of making it impossible for them to continue their university studies and of severing any social ties that they had established in Romania. In addition, the accusations against them were very serious, as they were suspected of intending to commit acts of terrorism in Romania, and thus tarnished their reputation (see paragraph 101 above). (ii) Whether the limitations of the applicants’ procedural rights were duly justified 162. In the present case, the Court notes that the national courts, applying the relevant legal provisions (see paragraphs 51 and 53 above), ruled from the outset that the applicants could not have access to the file on the grounds that the documents were classified (see paragraph 158 above). Domestic law, moreover, did not allow the courts to examine of their own motion whether the preservation of national security required, in a given case, the non-disclosure of evidence in the file (see paragraphs 51 and 53 above; contrast Regner, cited above, § 152). 163. Nor can it be seen from the judgments of the national courts in the present case that they carried out any examination of the need to limit the applicants’ procedural rights and to refrain from disclosing confidential information to them. The actual national security reasons which, in the authorities’ opinion, precluded the disclosure of the classified evidence and intelligence concerning the applicants, were not clarified by the national courts. Moreover, when the applicants argued before the High Court that they had doubts as to the level of classification applied in the present case, no clarification was provided on this point by the High Court (see paragraph 33 above). 164. Lastly, in the Court’s view, the fact that the press release published by the SRI on the day after the Court of Appeal’s judgment contained more detailed factual information than that provided to the applicants in the application initiating the proceedings or in the first-instance proceedings contradicts the need to deprive the applicants of specific information as to the factual reasons submitted in support of their expulsion. 165. Consequently, in the absence of any examination by the courts hearing the case of the need to limit the applicants’ procedural rights, the Court must exercise strict scrutiny in order to establish whether the counterbalancing factors put in place were capable of effectively mitigating the limitations of the applicants’ procedural rights in the present case. In this context, the Court will take account of its finding that the limitations at stake were significant (see paragraph 161 above). (iii) The existence of counterbalancing factors in the present case 166. The Court notes that, according to the Government, a number of factors must be taken into consideration by the Court when it examines whether the applicants’ rights were upheld in the present case. They pointed out in particular that in the proceedings and in the SRI press release (see paragraph 106 above) the applicants had nevertheless been informed of certain factual accusations against them, that they were entitled to be represented by a lawyer holding an ORNISS certificate (see paragraph 108 above) and, above all, that high-level impartial and independent courts had conducted the proceedings and decided on the necessity of the expulsion, in the light of the classified documents (see paragraphs 104 and 107 above). 167. The Court will now examine the concrete impact of each of the factors submitted by the Government in the present case. If appropriate, it will also take account of factors other than those mentioned by the Government, as identified above (see paragraphs 151-56 above). (α) The extent of the information provided to the applicants as to the factual elements underlying their expulsion 168. As regards the extent of the information provided to the applicants concerning the factual elements underlying their expulsion, the Court notes that, at the hearing before the Court of Appeal on 5 December 2012, the applicants were notified, through an interpreter, of the application initiating the proceedings (see paragraph 20 above). Only the numbers of the legal provisions which, according to the public prosecutor’s office, governed the alleged conduct were referred to in that document, without any mention of the conduct itself. No specific accusations against the applicants were stated. It is true that an interpreter assisted the applicants in translating the public prosecutor’s application. However, in the Court’s opinion, a mere enumeration of the numbers of legal provisions cannot suffice, not even as a basic minimum, to constitute adequate information about the accusations (see, for example, mutatis mutandis, Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 41, Series A no. 182, and Kerr v. the United Kingdom (dec.), no. 40451/98, 7 December 1999). The Court would conclude that in the course of the proceedings before the Court of Appeal, no information as to the factual reasons for the expulsion was provided to the applicants. 169. It should now be ascertained whether more information was received by the applicants during the High Court proceedings. 170. In this connection, and with regard first to the information that the applicants might have gleaned from the Court of Appeal’s judgment, the Court observes that it merely reproduced the parts of section 3 of Law no. 51/1991 which it considered relevant, thus circumscribing the legal framework of the accusations against the applicants, namely an intention to commit acts of terrorism, or the aiding and abetting of such acts by any means. While the reference to section 3, points (i) and (l), of Law no. 51/1991 provided the applicants with general information about the acts constituting the relevant offences and their legal characterisation, no specific fact was mentioned in the Court of Appeal’s judgment either. 171. The Court further notes that on the day after the delivery of the Court of Appeal’s judgment and while the further proceedings were still pending before the High Court, the SRI issued a press release setting out some of the accusations against the applicants (see paragraph 30 above). However, it is not necessary to look further into the question whether the extent of the information given in the press release might have enabled the applicants to challenge their expulsion or whether that information could have been sufficient to meet the requirements of Article 1 § 1 of Protocol No. 7. Even assuming that the information contained in the press release was sufficient to enable the applicants to prepare their defence, the Court takes the view that in the present case the press release cannot be regarded as a valid source of information, for the following reasons. 172. Firstly, it does not appear that the SRI press release was added to the case file before the High Court. Nor has it been established that the public prosecutor’s office considered the facts stated in that press release to form the basis of its application, or that the High Court confirmed to the applicants that those were the facts which had given rise to the accusations against them. 173. Secondly, after taking cognisance of the acts of which they stood accused according to the press release, in their grounds of appeal before the High Court the applicants pleaded accordingly (see paragraph 38 above). However, it cannot be seen from the file or from the wording of the High Court’s final judgment that the court had relied on the press release or its content in its reasoning. 174. Thirdly, and most importantly, a press release, even one disseminated through official channels, cannot be an appropriate means of providing parties to judicial proceedings with the information that they need to make their case before the competent authority. By its very nature, a press release, even when it concerns judicial proceedings, presents content which is tailored to its aim of informing public opinion more generally. By contrast, the parties to a case who can be readily contacted by the authorities are entitled to receive official information with a level of specificity and precision that is adapted to the particular features of the dispute and to the scope of their procedural rights. In this connection the Court also notes that the SRI was not a party to the proceedings. 175. Consequently, in the High Court proceedings also, the applicants were not informed of the allegations against them such as to be able to effectively exercise their procedural rights under Article 1 of Protocol No. 7. 176. The Court takes note of the case-law examples submitted by the Government showing the developments in domestic case-law as to the extent of the information disclosed to those concerned in this type of procedure (see paragraph 61 above). However, the factual information disclosed must be examined on a case-by-case basis and in the context of the proceedings in question, such that these examples, however commendable, have no impact on the applicants’ concrete situation. In addition, while these examples demonstrate that the national courts have the power to inform the aliens concerned of certain facts, they fail to explain why those courts chose not to use that power in the present case. 177. The Court thus finds that, as no specific information was provided to the applicants in the context of the proceedings by an independent authority, this is not a factor which is capable of counterbalancing the limitation of the applicants’ procedural rights. The Court must therefore pursue its examination to ascertain whether any other safeguards were put in place for the benefit of the applicants. Moreover, the extensive restriction of specific information entails the need for strong counterbalancing safeguards (see paragraph 146 above). (β) Whether the applicants were informed about the conduct of the domestic proceedings and about their procedural rights 178. The Court notes that, on the evening of 4 December 2012, the applicants were summoned to appear the following day, at 9 a.m., before the Bucharest Court of Appeal in proceedings instituted at the request of the public prosecutor’s office, which sought to have them declared undesirable persons (see paragraph 15 above). No documents or information concerning the conduct or purpose of the proceedings were attached to the summons. 179. Subsequently, at the hearing of 5 December 2012, the Court of Appeal ensured that the applicants were provided with the assistance of an interpreter for the translation of the application initiating the proceedings (see paragraphs 19-20 above). It also informed the applicants that the documents in the file were confidential and that only the court had access to them by virtue of the authorisation given to it (see paragraph 21 above). The Court of Appeal thus informed the applicants of the limitation of their right of access to the documents in the file and of the safeguard provided for under domestic law to counterbalance this lack of access, namely the court’s access to those documents. 180. However, the Court of Appeal did not consider it necessary to make sure that the applicants – aliens, the first of whom had recently arrived in Romania and did not speak Romanian – were well informed about the conduct of the proceedings before it or about the existence in domestic law of other safeguards that could counterbalance the effects of the limitation on their procedural rights. 181. The Court of Appeal did not therefore verify whether the applicants knew that under Romanian law they had the possibility, if they so wished, of being represented by a lawyer or at what point in the proceedings an application for representation should be made. Similarly, while the Court of Appeal informed the applicants of the limitation of their right of access to the file, it provided no information to them about the existence of lawyers holding an ORNISS certificate who would be authorised to access the classified documents. 182. In the Court’s view, this failure to provide the applicants with information about the conduct of the domestic proceedings in the Court of Appeal and the rights that they should have enjoyed, combined with the rapidity of the procedure, had the effect of negating the procedural safeguards to which the applicants were entitled before that court. 183. The Court further notes that in the High Court proceedings the applicants were assisted by two lawyers of their choosing. The Court leaves open the question whether the authorities were released from their obligation to inform the applicants of their rights and of the safeguards they could have enjoyed under domestic law by the fact that they were represented by two lawyers of their choosing before the High Court. In any event, it can be seen from the file that the High Court did not, of its own motion, inform them of the procedural safeguards under domestic law, with the result that this counterbalancing factor had no impact in the present case in mitigating the limitation of the applicants’ procedural rights. (γ) The applicants’ representation in the proceedings 184. The Court first notes that under domestic law the national authorities had no obligation to ensure that the applicants were assisted by a representative in the proceedings. It was nevertheless open to the applicants, if they so wished, to be represented by a lawyer. 185. The Court further observes that the domestic authorities, both judicial and administrative, were not required under domestic law to inform the applicants that they were entitled to be represented by a lawyer holding an ORNISS certificate. It also notes that very few lawyers held such a certificate (see paragraph 58 above) and that the names of those lawyers were not published by the Bar (see paragraph 57 above). 186. The Court takes note of the Government’s argument that the applicants’ lawyers should have assisted them in finding a lawyer holding an ORNISS certificate (see paragraph 108 above). Even assuming that a lawyer of the alien’s own choosing could be expected to assist him or her in finding another lawyer who holds an ORNISS certificate, the Court notes that the Government did not demonstrate the manner in which, at the material time, the lawyers would have had effective and timely access to the list of names of the lawyers already holding that certificate (paragraphs 57 ‑ 58 above). 187. The Court takes the view that, in the above-mentioned context (see paragraphs 184-85 above) and having regard to the expeditious nature of the first-instance proceedings, the applicants were not afforded an effective possibility of obtaining representation by a lawyer, still less a lawyer holding an ORNISS certificate, before the Court of Appeal. 188. The Court further observes that before the High Court the applicants were represented by two lawyers whom they themselves had chosen and who did not hold an ORNISS certificate. It remains to be ascertained whether the assistance provided by those lawyers on the basis of the authority conferred on them under domestic law was sufficient to ensure the applicants’ effective defence. 189. In this connection, the Court takes account of the fact that, as they did not hold an ORNISS certificate, the lawyers chosen by the applicants did not have access to the classified documents in the file. As regards the possibility for those lawyers to request the adjournment of the High Court proceedings in order to obtain such a certificate, the Court notes that the time-limit imposed by domestic law for that purpose (see paragraph 52 above) exceeded the normal length of the proceedings to establish whether the alien should be declared undesirable (see paragraph 54 above). A request for adjournment would therefore, in principle, not have enabled the applicants’ lawyers to obtain such a certificate for use in the appeal proceedings. The examples of case-law adduced by the parties confirm this finding (see paragraphs 65-66 above), as there is no example of practice dating back to the relevant time to show that the proceedings could have been extended beyond the time-limit imposed under domestic law. 190. Moreover, according to the information provided by the parties, a lawyer who initiates the procedure to obtain that certificate has to present a copy of the authority form given by his client in order to represent him in the proceedings (see paragraphs 54 and 57 above). As a result, it is not certain that the applicants’ lawyers could have sought such a certificate before being chosen by the applicants to represent them in the proceedings. 191. The Court thus takes the view that, in the present case, the presence of the applicants’ lawyers before the High Court, without any possibility of ascertaining the accusations against their clients, was not capable of ensuring their effective defence. 192. In the light of the foregoing, the applicants’ representation was not sufficiently effective to be able to counterbalance, in a significant manner, the limitations affecting the applicants in the exercise of their procedural rights. (δ) Whether the expulsion decision was subjected to independent scrutiny 193. The Court observes at the outset that the proceedings under Romanian law with a view to declaring a person undesirable were of a judicial nature. The competent courts in such matters, namely the Court of Appeal and the High Court, enjoyed the requisite independence within the meaning of the Court’s case-law, and this has not been questioned by the applicants (see S.C. v. Romania, no. 9356/11, § 73, 10 February 2015; see also, among many other authorities, for the definition of an independent tribunal, Micallef v. Malta [GC], no. 17056/06, § 93, ECHR 2009). The Court also attaches particular weight to the fact that the proceedings took place before the superior courts in the hierarchy of the Romanian legal system; the High Court is in fact the highest judicial authority. In the Court’s view, these are significant safeguards to be taken into account in the assessment of the factors capable of mitigating the effects of the limitations imposed on the applicants’ enjoyment of their procedural rights. 194. Before those courts, in view of the very limited and general information available to them, the applicants could only base their defence on suppositions and on general aspects of their student life or financial situation (see paragraphs 37-38 above), without being able specifically to challenge an accusation of conduct that allegedly endangered national security. In the Court’s view, faced with a situation such as this, the extent of the scrutiny applied by the national courts as to the well-foundedness of the requested expulsion should be all the more comprehensive. 195. Under Romanian law, specifically Article 85 §§ 2 and 3 of OUG no. 194/2002, it was the Court of Appeal which decided whether the measure requested by the public prosecutor’s office was necessary and justified. In the light of these legal provisions, the Court of Appeal and the High Court – the latter by way of judicial review – should in principle have had access to all the classified documents on which the public prosecutor’s application was based (contrast Abou Amer v. Romania, no. 14521/03, § 58, 24 May 2011, and Ljatifi, cited above, § 40). The judges were thus, in principle, supposed to be duly informed of the case against the applicants as contained in the classified information. It was for the domestic courts to verify on that basis whether the applicants genuinely represented a danger for national security. 196. Moreover, in ordering the expulsion, the Court of Appeal could confine itself, under Article 85 §§ 1 and 2 of OUG no. 194/2002, merely to verifying that there was “sufficient information” or “indications” that the alien in question intended to engage in activities which endangered national security. The Court would observe, however, that according to its case-law (see C.G. and Others v. Bulgaria, cited above, § 74, and Kaushal and Others, cited above, § 49), the national court which is competent to decide on an expulsion should verify whether the expulsion application under examination is substantiated by the supporting evidence submitted. 197. In the present case, the public prosecutor’s office submitted in evidence before the Court of Appeal a “document” which, in the Government’s submission, provided details of the applicants’ alleged activities and referred to the specific data and intelligence obtained by the SRI concerning the involvement of the two applicants in activities which threatened national security (see paragraph 14 above). It is not clear whether the domestic courts actually had access to all the classified information underlying the expulsion application or only to that one “document”. Even though they were invited to do so, the Government failed to clarify this point. 198. Moreover, when the applicants expressed their doubts before the High Court about the presence of classified documents in the file, that court did not provide any clarification on this point (see paragraph 33 above). In addition, the High Court refused to order the inclusion in the file of the only item of evidence that was requested by the applicants with the aim of rebutting the allegations that they had financed terrorist activities (see paragraphs 38 and 40 above). In other words, there is nothing in the file to suggest that any verification was actually carried out by the national courts as to the credibility and veracity of the facts submitted to them by the public prosecutor’s office (see, mutatis mutandis, Raza v. Bulgaria, no. 31465/08, § 54, 11 February 2010). 199. Furthermore, the domestic courts gave very general responses in dismissing the applicants’ pleas that they had not acted to the detriment of national security. They merely indicated that it could be seen from the evidence in the file that there were strong indications showing that the applicants intended to engage in activities capable of endangering national security, without any verification of the credibility of the document submitted to them by the public prosecutor’s office. 200. The Court notes the efforts of the domestic courts to refer to its relevant case-law in such matters. In particular, it acknowledges the fact that the High Court referred in its judgment to case-law which indicated to the domestic authorities that they needed to provide for scrutiny by an independent authority as a safeguard against arbitrariness on the part of the executive (see paragraphs 44-45 above). 201. The Court thus accepts that the examination of the case by an independent judicial authority is a very weighty safeguard in terms of counterbalancing any limitation of an applicant’s procedural rights. However, as in the present case, such a safeguard does not suffice in itself to compensate for the limitation of procedural rights if the nature and the degree of scrutiny applied by the independent authorities do not transpire, at least summarily, from the reasoning of their decisions (see paragraph 156 in fine above). 202. The Court further notes that some of the examples of case-law provided by the Government show that the Court of Appeal may, in the light of the classified documents at its disposal, verify the veracity and credibility of the information submitted to it (see paragraphs 62-63 above). However, there are few such examples dating back to the relevant time. In any event, the documents in the file do not show that in the present case the domestic courts effectively and adequately exercised the powers vested in them for such purpose. (iv) Conclusion as to compliance with Article 1 of Protocol No. 7 in the present case 203. The Court reiterates that in the present case the applicants were subjected to significant limitations in the exercise of their right to be informed of the factual elements underlying the decision to deport them and their right to have access to the content of the documents and the information relied upon by the competent authority which made that decision (see paragraph 160 above). It does not appear from the file that the need for such limitations was examined and identified as duly justified by an independent authority at domestic level. The Court is therefore required to exercise strict scrutiny of the measures put in place in the proceedings against the applicants in order to counterbalance the effects of those limitations, for the purposes of preserving the very essence of their rights under Article 1 § 1 of Protocol No. 7 (see paragraphs 133 and 144-45 above). 204. The Court would observe in that connection that the applicants received only very general information about the legal characterisation of the accusations against them, while none of their specific acts which allegedly endangered national security could be seen from the file. Nor were they provided with any information about the key stages in the proceedings or about the possibility of accessing classified documents in the file through a lawyer holding an ORNISS certificate. 205. As to the extent of the scrutiny exercised by an independent authority, the Court takes the view that the mere fact that the expulsion decision was taken by independent judicial authorities at a high level, without it being possible to establish that they actually used the powers vested in them under Romanian law, does not suffice to counterbalance the limitations that the applicants sustained in the exercise of their procedural rights. 206. In conclusion, having regard to the proceedings as a whole and taking account of the margin of appreciation afforded to the States in such matters, the Court finds that the limitations imposed on the applicants’ enjoyment of their rights under Article 1 of Protocol No. 7 were not counterbalanced in the domestic proceedings such as to preserve the very essence of those rights. (c) General conclusion 207. Accordingly, there has been a violation of Article 1 of Protocol No. 7 to the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 208. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 209. The applicants each claimed 104,000 euros (EUR) in respect of the pecuniary damage that they had allegedly sustained. They stated that this sum corresponded to the loss of any effective possibility for them to find employment for over two years, since their removal from Romania. They included in that sum the loss of opportunities in relation to the completion of their doctoral studies and their pursuit of an academic career. They also sought EUR 10,000 each in respect of alleged non-pecuniary damage. 210. As regards the sum requested by way of pecuniary damage, the Government indicated that there was no real link between the decision to remove the applicants from Romania and the alleged damage, and that the applicants had failed to show how they had calculated the amount claimed. As to the non-pecuniary damage, they asked the Court to indicate that a finding of a violation would constitute in itself sufficient redress, and in the alternative, to take account of its case-law in dealing with the applicants’ claim. 211. The Court observes that the only basis on which just satisfaction can be awarded, in the present case, lies in the fact that the applicants did not enjoy sufficient procedural safeguards in the proceedings leading to their removal from Romania. The Court cannot speculate as to any other outcome of the proceedings. In any event, it is of the view that the alleged pecuniary damage is not substantiated by the documents in the file. Consequently, the claim pertaining to pecuniary damage must be rejected. 212. The Court finds, however, that the applicants definitely sustained non-pecuniary damage and the finding of a violation cannot by itself constitute redress. In view of the nature of the violation, the Court, ruling on an equitable basis, awards each of the applicants EUR 10,000 in respect of non-pecuniary damage. Costs and expenses 213. The applicants, who submitted their claim while the case was still pending before the Chamber, sought EUR 3,000 for costs and expenses in respect of their lawyer’s fees incurred before the domestic courts and before the Court. The Government argued that the amount claimed for costs and expenses before the Chamber was not substantiated by sufficient and legible documents. 214. The applicants made a request for legal aid before the Grand Chamber and requested the reimbursement of the expenses incurred by their lawyers to assist them before the Grand Chamber and to attend the hearing, for which they submitted supporting documents. At the Grand Chamber hearing they requested the full reimbursement of the expenses they had incurred for their lawyers’ participation in the hearing. 215. The Court notes that only the applicants’ claim concerning the reimbursement of the costs relating to the attendance of their lawyers at the hearing is substantiated by relevant and legible documents. In view of the Court’s case-law in such matters (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000 ‑ XI) and the fact that the applicants received only a partial reimbursement of the travel expenses for the hearing, in the form of legal aid, the Court awards EUR 1,365 jointly to both applicants under that head. Default interest 216. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 1 (procedural safeguards relating to expulsion of aliens) of Protocol No. 7 to the Convention finding that, having regard to the proceedings as a whole and taking account of the margin of appreciation afforded to the States in such matters, the limitations imposed on the applicants’ enjoyment of their rights under Article 1 of Protocol No. 7 had not been counterbalanced in the domestic proceedings such as to preserve the very essence of those rights. It noted in particular that the applicants had received only very general information about the legal characterisation of the accusations against them, while none of their specific acts which allegedly endangered national security could be seen from the file. Nor had they been provided with any information about the key stages in the proceedings or about the possibility of accessing classified documents in the file through a lawyer holding authorisation to consult such documents. |
465 | Dublin regulation | II. RELEVANT DOMESTIC LAW A. Federal Asylum Act of 26 June 1998, as in force at the relevant time 22. The relevant provisions of the Federal Asylum Act of 26 June 1998 read as follows: Section 29 Interview on grounds for seeking asylum “1. The Office shall interview asylum seekers on their grounds for seeking asylum a. in the registration centre; or b. within twenty days of the decision to allocate the application to a canton. 1 bis. If necessary, an interpreter shall be called. 2. The asylum seekers may be accompanied by a representative and an interpreter of his or her choice who are not themselves asylum seekers. 3. A record of the interview shall be drawn up. It shall be signed by those present at the interview, with the exception of the representative of the charitable organisations. 4. The Office may entrust the conduct of the interview to the cantonal authorities themselves if this enables the procedure to be speeded up significantly. Paragraphs 1 to 3 shall apply .” Section 34 Decision not to examine in the absence of a risk of persecution in the other country “1. If the asylum seeker has arrived from a country where he or she does not risk persecution within the meaning of section 6a(2)(a), the Office shall not examine the application unless there are indications of persecution. 2. As a general rule, the Office shall not examine an asylum application where the asylum seeker a. can return to a safe third country within the meaning of section 6a(2)(b) where he or she has resided previously; b. can return to a third country where he or she has resided previously and which, in the case in issue, respects the principle of non-refoulement referred to in section 5(1); c. can continue his or her journey to a third country for which he or she already has a visa and where he or she can claim protection; d. can travel to a third country which has competence under an international agreement to carry out the asylum and removal procedure; e. can continue his or her journey to a third country where he or she has close relatives or other persons with whom he or she has close ties. 3. Sub-section 2 ( a ), ( b ), ( c ) and ( e ) shall not apply where a. close relatives of the asylum seeker or other persons with whom he or she has close ties are living in Switzerland; b. the asylum seeker manifestly has refugee status within the meaning of section 3; c. the Office possesses information indicating that the third country does not offer effective protection as regards the principle of non-refoulement referred to in section 5(1).” Section 42 Residence during the asylum proceedings “Any person who lodges an application for asylum in Switzerland may remain in the country until the proceedings have been concluded. ” Section 105 Appeals against decisions of the Office “Appeals against decisions of the Office shall be governed by the Federal Administrative Court Act of 17 June 2005.” Section 107a Dublin procedure “Appeals against decisions not to examine asylum applications lodged by asylum seekers who can travel to a country with competence under an international treaty to carry out the asylum and removal procedure shall not have suspensive effect. The asylum seeker concerned may request that suspensive effect be granted while the appeal is pending. The Federal Administrative Court shall give a ruling within five days from the lodging of the request. Where suspensive effect has not been granted within that period, the removal order may be enforced.” B. Asylum Ordinance 1 of 11 August 1999 concerning procedure ( Asylum Ordinance 1, OA 1), as in force at the relevant time 23. The relevant Article of Asylum Ordinance 1 of 11 August 1999 concerning procedure provided: Article 29a Assessment of competence under Dublin Regulation ( Section 34 ( 2 )( d ), Asylum Act ) “ 1 The FMO shall assess competence to deal with an asylum application in accordance with the criteria laid down in Regulation (EC) No 343/2003. 2 If this assessment shows that another State is responsible for dealing with the asylum application, the FMO shall issue a decision declining to examine the application once the requested State has agreed to take charge of or take back the asylum seeker. 3 The FMO may also, on humanitarian grounds, deal with the application even where the assessment shows that another State is competent. 4 The procedure for taking charge of or taking back the asylum seeker by the competent State shall be carried out in accordance with Regulation (EC) No 1560/2003. ” C. Federal Court Act of 17 June 2005 24. The relevant provision of the Federal Court Act of 17 June 2005 reads as follows: Section 123 Other grounds “ ... 2 A request for revision may also be made ... a. in civil and public-law cases, if the applicant later discovers relevant facts or conclusive evidence that he or she was unable to rely on in the previous proceedings, with the exception of facts or evidence subsequent to the judgment; ... ” D. Federal Administrative Court Act of 17 June 2005 25. The relevant section of the Federal Administrative Court Act of 17 June 2005 reads as follows: Section 45 Principle “Sections 121 to 128 of the Federal Court Act of 17 June 2005 shall apply by analogy to the revision of judgments of the Federal Administrative Court.” E. Relevant case-law of the Federal Administrative Court 26. The Federal Administrative Court, which rules at final instance on asylum matters, has set aside deportation orders or subjected them to conditions because the persons concerned fell into the category of “vulnerable persons”. It has done so in particular in the following situations: (i) a person deemed vulnerable by virtue of being an unaccompanied young woman (D-4267/2007 of 30 August 2007 ); (ii) an elderly man with serious and debilitating health problems (E ‑ 6557/2009 of 23 October 2009 ); (iii) a young man with no social or family network in Somaliland (E ‑ 2157/2011 of 18 November 2011 ); (iv) a person deemed to be vulnerable because of her particular medical and social needs, in view of her psychological state and the fact that she had a small dependent child (E-188/2012 of 31 January 2012); (v) women, and in particular single women and widows, from certain regions or certain countries (E-3568/2012 of 1 May 2013 ). 27. In three judgments (E-5194/2012 of 15 February 2013, E-1341/2012 of 2 May 2012 and D-1689/2012 of 24 April 2012 ), the Federal Administrative Court recognised that the conditions of detention in Malta, a State belonging to the “ Dublin ” system, could raise issues, in particular for individuals accompanied by a child. In another case (E-1574/2011 of 18 October 2013 ), concerning the removal to Italy of a Somalian family with three young children, it held that Switzerland should apply the “ sovereignty clause ” (see paragraph 3 2 below) provided for by the Dublin Regulation (see paragraph 2 9 below), which allows States to suspend deportation on humanitarian grounds, on account of the conditions in which the applicants would be taken charge of in Italy, which were judged to be inadequate, and the parents ’ state of health. III. RELEVANT EUROPEAN UNION LAW 28. The relevant provisions of the Charter of Fundamental Rights of the European Union provide: Article 4 Prohibition of torture and inhuman or degrading treatment or punishment “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 18 Right to asylum “The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community.” Article 19 Protection in the event of removal, expulsion or extradition “1. Collective expulsions are prohibited. 2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.” Article 24 The rights of the child “1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. 2. In all actions relating to children, whether taken by public authorities or private institutions, the child ’ s best interests must be a primary consideration. 3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.” 29. The relevant instruments of European Union secondary legislation were set forth in the Court ’ s judgment in the case of M.S.S. v. Belgium and Greece ([GC], no. 30696/09, §§ 57-86, ECHR 2011), which refers in particular to : – Council Directive 2003/9 /EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers in the Member States (“the Reception Directive”); – 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 Regulation”); – Council Directive 2004/83 /EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (“the Qualification Directive”); – Council Directive 2005/85 /EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status in the Member States (the “Procedures Directive”). 30. Under the Dublin Regulation the Member States must determine, based on a hierarchy of objective criteria (Articles 5 to 14), which Member State bears responsibility for examining an asylum application lodged on their territory. The system is aimed at avoiding multiple applications and provides for each asylum seeker ’ s case to be dealt with by a single Member State ( Article 3 ( 1) ). Hence, where it is established that an asylum seeker has irregularly crossed the border into a Member State having come from a third country, the Member State thus entered is responsible for examining the application for asylum (Article 10 ( 1 ) ). 31. Where the criteria in the Regulation indicate that another Member State is responsible, that State is requested to take charge of the asylum seeker and examine the application for asylum ( Article 17). 32. By way of derogation from the principle articulated in Article 3 ( 1 ), a “sovereignty clause ” contained in Article 3 ( 2 ) allows any Member State to examine an application for asylum even if such examination is not its responsibility under the criteria laid down in the Regulation. Furthermore, the “humanitarian clause” contained in Article 15 allows any Member State, even where it is not responsible according to the same criteria, to examine an asylum application on humanitarian grounds based in particular on family or cultural considerations. 33. In its judgment of 21 December 2011 in the cases N. S. v. Secretary of State for the Home Department and M. E., A. S. M., M. T., K. P., E. H. v. Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform (CJEU C-411/10 and C-493/10), the Grand Chamber of the Court of Justice of the European Union ( “ the CJEU ” ) held, on the subject of transfers under the Dublin Regulation, that although the Common European Asylum System was based on mutual confidence and a presumption of compliance by other Member States with European Union law and, in particular, with fundamental rights, that presumption was nonetheless rebuttable. The judgment stated, inter alia : “78. Consideration of the texts which constitute the Common European Asylum System shows that it was conceived in a context making it possible to assume that all the participating States, whether Member States or third States, observe fundamental rights, including the rights based on the Geneva Convention and the 1967 Protocol, and on the ECHR, and that the Member States can have confidence in each other in that regard. ... 80. In those circumstances, it must be assumed that the treatment of asylum seekers in all Member States complies with the requirements of the Charter [of Fundamental Rights of the European Union], the Geneva Convention and the ECHR. 81. It is not however inconceivable that that system may, in practice, experience major operational problems in a given Member State, meaning that there is a substantial risk that asylum seekers may, when transferred to that Member State, be treated in a manner incompatible with their fundamental rights. 82. Nevertheless, it cannot be concluded from the above that any infringement of a fundamental right by the Member State responsible will affect the obligations of the other Member States to comply with the provisions of Regulation No 343/2003. 83. At issue here is the raison d ’ être of the European Union and the creation of an area of freedom, security and justice and, in particular, the Common European Asylum System, based on mutual confidence and a presumption of compliance, by other Member States, with European Union law and, in particular, fundamental rights. 84. In addition, it would be not be compatible with the aims of Regulation No 343/2003 were the slightest infringement of Directives 2003/9, 2004/83 or 2005/85 to be sufficient to prevent the transfer of an asylum seeker to the Member State primarily responsible. Regulation No 343/2003 aims – on the assumption that the fundamental rights of the asylum seeker are observed in the Member State primarily responsible for examining the application – to establish ... a clear and effective method for dealing with an asylum application. In order to achieve that objective, Regulation No 343/2003 provides that responsibility for examining an asylum application lodged in a European Union country rests with a single Member State, which is determined on the basis of objective criteria. 85. If the mandatory consequence of any infringement of the individual provisions of Directives 2003/9, 2004/83 or 2005/85 by the Member State responsible were that the Member State in which the asylum application was lodged is precluded from transferring the applicant to the first mentioned State, that would add to the criteria for determining the Member State responsible set out in Chapter III of Regulation No 343/2003 another exclusionary criterion according to which minor infringements of the abovementioned directives committed in a certain Member State may exempt that Member State from the obligations provided for under Regulation No 343/2003. Such a result would deprive those obligations of their substance and endanger the realisation of the objective of quickly designating the Member State responsible for examining an asylum claim lodged in the European Union. 86. By contrast, if there are substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman or degrading treatment, within the meaning of Article 4 of the Charter, of asylum seekers transferred to the territory of that Member State, the transfer would be incompatible with that provision. ... 104. ... the presumption underlying the relevant legislation, stated in paragraph 80 above, that asylum seekers will be treated in a way which complies with fundamental rights, must be regarded as rebuttable. 105. In the light of those factors, .. European Union law precludes the application of a conclusive presumption that the Member State which Article 3(1) of Regulation No 343/2003 indicates as responsible observes the fundamental rights of the European Union. 106. Article 4 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that the Member States, including the national courts, may not transfer an asylum seeker to the ‘ Member State responsible ’ within the meaning of Regulation No 343/2003 where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of that provision.” 34. The Dublin Regulation is applicable to Switzerland under the terms of the association agreement of 26 October 2004 between the Swiss Confederation and the European Community regarding criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland ( OJ L 53 of 27 February 2008). However, Switzerland is not formally bound by the three Directives referred to at paragraph 29 above. 35. The Dublin II Regulation was recently replaced by Regulation no. 604/2013 of the European Parliament and of the Council of 26 June 2013 (“the Dublin III Regulation”), which is designed to make the “ Dublin ” system more effective and to strengthen the legal safeguards for persons subjected to the “ Dublin ” procedure. One of its aims is to ensure that families are kept together, and it pays particular attention to the needs of unaccompanied minors and other persons requiring special protection. In particular, Articles 6, 31, 32 and 33 of the Dublin III Regulation read as follows: Article 6 Guarantees for minors “1. The best interests of the child shall be a primary consideration for Member States with respect to all procedures provided for in this Regulation. ... 3. In assessing the best interests of the child, Member States shall closely cooperate with each other and shall, in particular, take due account of the following factors: (a) family reunification possibilities; (b) the minor ’ s well-being and social development; (c) safety and security considerations, in particular where there is a risk of the minor being a victim of human trafficking; (d) the views of the minor, in accordance with his or her age and maturity.” Article 31 Exchange of relevant information before a transfer is carried out “ 1. The Member State carrying out the transfer of an applicant or of another person as referred to in Article 18(1)(c) or (d) shall communicate to the Member State responsible such personal data concerning the person to be transferred as is appropriate, relevant and non-excessive for the sole purposes of ensuring that the competent authorities, in accordance with national law in the Member State responsible, are in a position to provide that person with adequate assistance, including the provision of immediate health care required in order to protect his or her vital interests, and to ensure continuity in the protection and rights afforded by this Regulation and by other relevant asylum legal instruments. Those data shall be communicated to the Member State responsible within a reasonable period of time before a transfer is carried out, in order to ensure that its competent authorities in accordance with national law have sufficient time to take the necessary measures. 2. The transferring Member State shall, in so far as such information is available to the competent authority in accordance with national law, transmit to the Member State responsible any information that is essential in order to safeguard the rights and immediate special needs of the person to be transferred, and in particular: (a) any immediate measures which the Member State responsible is required to take in order to ensure that the special needs of the person to be transferred are adequately addressed, including any immediate health care that may be required; (b) contact details of family members, relatives or any other family relations in the receiving Member State, where applicable; (c) in the case of minors, information on their education; (d) an assessment of the age of an applicant. 3. The exchange of information under this Article shall only take place between the authorities notified to the Commission in accordance with Article 35 of this Regulation using the ‘ DubliNet ’ electronic communication network set-up under Article 18 of Regulation (EC) No 1560/2003. The information exchanged shall only be used for the purposes set out in paragraph 1 of this Article and shall not be further processed. 4. With a view to facilitating the exchange of information between Member States, the Commission shall, by means of implementing acts, draw up a standard form for the transfer of the data required pursuant to this Article. Those implementing acts shall be adopted in accordance with the examination procedure laid down in Article 44(2). 5. The rules laid down in Article 34(8) to (12) shall apply to the exchange of information pursuant to this Article.” Article 32 Exchange of health data before a transfer is carried out “1. For the sole purpose of the provision of medical care or treatment, in particular concerning disabled persons, elderly people, pregnant women, minors and persons who have been subject to torture, rape or other serious forms of psychological, physical and sexual violence, the transferring Member State shall, in so far as it is available to the competent authority in accordance with national law, transmit to the Member State responsible information on any special needs of the person to be transferred, which in specific cases may include information on that person ’ s physical or mental health. That information shall be transferred in a common health certificate with the necessary documents attached. The Member State responsible shall ensure that those special needs are adequately addressed, including in particular any essential medical care that may be required. The Commission shall, by means of implementing acts, draw up the common health certificate. Those implementing acts shall be adopted in accordance with the examination procedure laid down in Article 44(2). 2. The transferring Member State shall only transmit the information referred to in paragraph 1 to the Member State responsible after having obtained the explicit consent of the applicant and/or of his or her representative or, if the applicant is physically or legally incapable of giving his or her consent, when such transmission is necessary to protect the vital interests of the applicant or of another person. The lack of consent, including a refusal to consent, shall not constitute an obstacle to the transfer. 3. The processing of personal health data referred to in paragraph 1 shall only be carried out by a health professional who is subject, under national law or rules established by national competent bodies, to the obligation of professional secrecy or by another person subject to an equivalent obligation of professional secrecy. 4. The exchange of information under this Article shall only take place between the health professionals or other persons referred to in paragraph 3. The information exchanged shall only be used for the purposes set out in paragraph 1 and shall not be further processed. 5. The Commission shall, by means of implementing acts, adopt uniform conditions and practical arrangements for exchanging the information referred to in paragraph 1 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure laid down in Article 44(2). 6. The rules laid down in Article 34(8) to (12) shall apply to the exchange of information pursuant to this Article.” Article 33 A mechanism for early warning, preparedness and crisis management “1. Where, on the basis of, in particular, the information gathered by EASO pursuant to Regulation (EU) No 439/2010, the Commission establishes that the application of this Regulation may be jeopardised due either to a substantiated risk of particular pressure being placed on a Member State ’ s asylum system and/or to problems in the functioning of the asylum system of a Member State, it shall, in cooperation with EASO, make recommendations to that Member State, inviting it to draw up a preventive action plan. The Member State concerned shall inform the Council and the Commission whether it intends to present a preventive action plan in order to overcome the pressure and/or problems in the functioning of its asylum system whilst ensuring the protection of the fundamental rights of applicants for international protection. A Member State may, at its own discretion and initiative, draw up a preventive action plan and subsequent revisions thereof. When drawing up a preventive action plan, the Member State may call for the assistance of the Commission, other Member States, EASO and other relevant Union agencies. 2. Where a preventive action plan is drawn up, the Member State concerned shall submit it and shall regularly report on its implementation to the Council and to the Commission. The Commission shall subsequently inform the European Parliament of the key elements of the preventive action plan. The Commission shall submit reports on its implementation to the Council and transmit reports on its implementation to the European Parliament. The Member State concerned shall take all appropriate measures to deal with the situation of particular pressure on its asylum system or to ensure that the deficiencies identified are addressed before the situation deteriorates. Where the preventive action plan includes measures aimed at addressing particular pressure on a Member State ’ s asylum system which may jeopardise the application of this Regulation, the Commission shall seek the advice of EASO before reporting to the European Parliament and to the Council. 3. Where the Commission establishes, on the basis of EASO ’ s analysis, that the implementation of the preventive action plan has not remedied the deficiencies identified or where there is a serious risk that the asylum situation in the Member State concerned develops into a crisis which is unlikely to be remedied by a preventive action plan, the Commission, in cooperation with EASO as applicable, may request the Member State concerned to draw up a crisis management action plan and, where necessary, revisions thereof. The crisis management action plan shall ensure, throughout the entire process, compliance with the asylum acquis of the Union, in particular with the fundamental rights of applicants for international protection. Following the request to draw up a crisis management action plan, the Member State concerned shall, in cooperation with the Commission and EASO, do so promptly, and at the latest within three months of the request. The Member State concerned shall submit its crisis management action plan and shall report, at least every three months, on its implementation to the Commission and other relevant stakeholders, such as EASO, as appropriate. The Commission shall inform the European Parliament and the Council of the crisis management action plan, possible revisions and the implementation thereof. In those reports, the Member State concerned shall report on data to monitor compliance with the crisis management action plan, such as the length of the procedure, the detention conditions and the reception capacity in relation to the inflow of applicants. 4. Throughout the entire process for early warning, preparedness and crisis management established in this Article, the Council shall closely monitor the situation and may request further information and provide political guidance, in particular as regards the urgency and severity of the situation and thus the need for a Member State to draw up either a preventive action plan or, if necessary, a crisis management action plan. The European Parliament and the Council may, throughout the entire process, discuss and provide guidance on any solidarity measures as they deem appropriate.” 36. The Dublin III Regulation entered into force on 1 January 2014 and was passed into law by the Swiss Federal Council on 7 March 2014. V. RELEVANT COMPARATIVE LAW A. Relevant German case-law 51. The Court notes that several German administrative courts, for instance the Stuttgart Administrative Court (on 4 February 2013), the Gelsenkirchen Administrative Court (on 17 May and 11 April 2013) and the Frankfurt am Main Administrative Court (on 9 July 2013) have ruled against the return of asylum seekers to Italy under the Dublin Regulation, irrespective of whether they belonged to categories deemed to be vulnerable. In its judgment of 9 July 2013 ( no. 7 K 560/11.F.A) in particular, the Frankfurt Administrative Court held that the shortage of places in Italian reception centres and the living conditions there would be liable to entail a violation of Article 3 of the Convention if a 24-year-old Afghan asylum seeker were sent back from Germany to Italy. In its judgment the Administrative Court held as follows: ( Translation by the Registry ) “ 25. The court is convinced that systemic deficiencies exist in the reception conditions for asylum seekers in Italy which constitute substantial grounds for believing that the applicant, if he were to be transferred to that country under the Dublin Regulation, would run a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the EU Charter of Fundamental Rights (see the ECJ judgment of 21 December 2011 – C-411/10, N. S. v Secretary of State for the Home Department and Others, EuGRZ 2012 24, § 94). ... 28. The reception and accommodation system in Italy is very confusing and the Italian authorities themselves seem to lack a full overview of its capacity and effectiveness (see the December 2012 expert report by Borderline-europe e.V. to the Braunschweig Administrative Court, p. 37). The Italian Government have admitted these shortcomings even before the European Court of Human Rights ( see Mohammed Hussein and Others, cited above, § 45, second sub-paragraph ). ... 49. The court does not possess any reliable information or reports capable of refuting, or even casting doubt on, the above finding. First of all, according to the case-law of both the European Court of Human Rights and the European Court of Justice, the rules on responsibility under the Dublin Regulation do not cease to apply only if it is established with certainty that the asylum seeker in question will be exposed to inhuman or degrading treatment if he is transferred to Italy. The facts do not support such a conclusion. Italy certainly has a number of acceptable reception facilities for asylum seekers and it can be assumed on the basis of the reports that at least one asylum seeker in two can be accommodated in accordance with the requirements of the Reception Directive. However, in view of the case-law cited above, it is sufficient for the person concerned to run a real risk of being subjected to inhuman or degrading treatment. Given that the chances of receiving accommodation that conforms to the above-mentioned requirements are at best 50%, it must in any event be concluded that such a risk exists. ... ” B. Relevant case-law of the Supreme Court of the United Kingdom 52. In a judgment of 19 February 2014 ([2014] UKSC 12), the Supreme Court of the United Kingdom held that, irrespective of whether “ systemic deficiencies ” existed in the reception system for asylum seekers in Italy, the Court of Appeal should examine on a case-by-case basis the risk that appellants would be subjected to treatment contrary to the Convention if they were returned to Italy. Lord Kerr, with whom Lord Neuberger (President), Lord Carnwath, Lord Toulson and Lord Hodge agreed, stated as follows: “ ... 42. Violation of article 3 does not require (or, at least, does not necessarily require) that the complained of conditions said to constitute inhuman or degrading conditions are the product of systemic shortcomings. It is self-evident that a violation of article 3 rights is not intrinsically dependent on the failure of a system. If this requirement is grafted on to the presumption it will unquestionably make its rebuttal more difficult. And it means that those who would suffer breach of their article 3 rights other than as a result of a systemic deficiency in the procedure and reception conditions provided for the asylum seeker will be unable to avail of those rights in order to prevent their enforced return to a listed country where such violation would occur. That this should be the result of the decision of CJEU in NS [ N. S. v Secretary of State for the Home Department and M. E., A. S. M., M. T., K. P., E. H. v Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform (CJEU C-411/10 and C-493/10)] would be, as I have said, remarkable. ... 46. In paras 76-80 of its judgment, CJEU sets out the background to the need for mutual confidence among member states about the obligation of those states that participate in the Common European Asylum System to comply with fundamental rights including those based on the Convention relating to the Status of Refugees (the 1951 Convention) ((1951) Cmd 9171) and its 1967 Protocol ((1967) Cmnd 3906). In these paras the court also dealt with the assumption that needed to be made that the states will be prepared to fully comply. These twin considerations (the importance of the obligations and the assumption that they will be fulfilled) underpin the system – a system designed to ‘ avoid blockages ... as a result of the obligation on state authorities to examine multiple claims by the same applicant, and ... to increase legal certainty with regard to the determination of the state responsible for examining the asylum claim and thus to avoid forum shopping, it being the principal objective ... to speed up the handling of claims in the interests both of asylum seekers and the participating member states. ’ – para 79. ... 48. Before examining what CJEU said on this issue, it can be observed that an exclusionary rule based only on systemic failures would be arbitrary both in conception and in practice. There is nothing intrinsically significant about a systemic failure which marks it out as one where the violation of fundamental rights is more grievous or more deserving of protection. And, as a matter of practical experience, gross violations of article 3 rights can occur without there being any systemic failure whatsoever. 49. One must be careful, therefore, to determine whether CJEU referred to systemic failures in order merely to distinguish these from trivial infringements of the various European asylum directives or whether it consciously decided to create a new and difficult-to-fulfil pre-condition for asylum-seekers who seek to have recourse to their article 3 rights to prevent their return to a country where it can be shown that those rights will be violated. For there can be little doubt that such a condition would indeed be difficult to fulfil. Some of the facts in the present cases exemplify the truth of that proposition. ... ... The correct approach 58. I consider that the Court of Appeal ’ s conclusion that only systemic deficiencies in the listed country ’ s asylum procedures and reception conditions will constitute a basis for resisting transfer to the listed country cannot be upheld. The critical test remains that articulated in Soering v United Kingdom (1989) 11 EHRR 439. The removal of a person from a member state of the Council of Europe to another country is forbidden if it is shown that there is a real risk that the person transferred will suffer treatment contrary to article 3 of ECHR. ... 63. Where ... it can be shown that the conditions in which an asylum seeker will be required to live if returned under Dublin II are such that there is a real risk that he will be subjected to inhuman or degrading treatment, his removal to that state is forbidden. When one is in the realm of positive obligations (which is what is involved in the claim that the state has not ensured that satisfactory living conditions are available to the asylum seeker) the evidence is more likely to partake of systemic failings but the search for such failings is by way of a route to establish that there is a real risk of article 3 breach, rather than a hurdle to be surmounted. 64. There is, however, what Sales J described in R (Elayathamby) v Secretary of State for the Home Department [2011] EWHC 2182 (Admin), at para 42(i) as ‘ a significant evidential presumption ’ that listed states will comply with their Convention obligations in relation to asylum procedures and reception conditions for asylum seekers within their territory. It is against the backdrop of that presumption that any claim that there is a real risk of breach of article 3 rights falls to be addressed. The first instance decisions 65. In his first judgment in EM [2011] EWHC 3012 Admin, delivered on 18 November 2011, Kenneth Parker J referred approvingly to the statement in R v Home Secretary Ex p Adan [1999] 3 WLR 1274 to the effect that a system which will, if it operates as it usually does, provide the required standard protection for the asylum seeker will not be found to be deficient because of aberrations. He then said this at para 12: ‘ Following KRS, the existence of such a system is to be presumed. It is for the claimant to rebut that presumption, by pointing to a reliable body of evidence demonstrating that Italy systematically and on a significant scale fails to comply with its international obligations to asylum seekers on its territory. (original emphasis [KRS judgment] ) ’ 66. ‘ Systematic ’ is defined as ‘ arranged or conducted according to a system, plan, or organised method ’ whereas the definition of the word ‘ systemic ’ is ‘ of or pertaining to a system ’. Taken in context, I believe that Kenneth Parker J ’ s statement that it had to be shown that there was a systematic and significant failure to comply with international obligations meant that the omissions were on a widespread and substantial scale. His approach is rather different from that of the Court of Appeal, therefore, in that it does not appear to suggest that it needed to be shown that there were inherent deficiencies in the system, merely that there were substantial operational problems. This approximates (at least) to what I consider is the true import of the decision in NS. On one view, therefore, Kenneth Parker J ’ s decision is in keeping with the correct test and his decision should stand. 67. For two reasons, however, I have decided that this would not be the correct disposal. In the first place the Court of Appeal took a different view from that of Kenneth Parker J as to the effect of the evidence. As I pointed out, (in paras 26 and 31 above) the court indicated that, but for the effect of NS, it would have been bound to conclude that there was a triable issue in all four cases as to whether return to Italy entailed a real risk to exposing the appellants to inhuman or degrading treatment contrary to article 3 of ECHR. Secondly, there is an issue as to whether Kenneth Parker J ’ s approach accords precisely with that in Soering. In that case ECtHR had said that an extraditing contracting state will incur liability under the Convention if it takes action ‘ which has as a direct consequence the exposure of an individual to proscribed ill-treatment ’. In order to rebut the presumption a claimant will have to produce sufficient evidence to show that it would be unsafe for the court to rely on it. On proper analysis, it may well be that Kenneth Parker J was not suggesting that there was a requirement that a person subject to an enforced return must show that his or her risk of suffering ill-treatment contrary to article 3 of EHCR was the result of a significant and systematic omission of the receiving state to comply with its international obligations. It seems to me, however, that, to impose such an obligation in every instance would go beyond the Soering requirement. Since there was no reference to Soering in Kenneth Parker J ’ s judgment and in light of this court ’ s re ‑ assertion of the test articulated in that case, I consider that it would be sensible to have the matter revisited. 68. ... Although one starts with a significant evidential presumption that listed states will comply with their international obligations, a claim that such a risk is present is not to be halted in limine solely because it does not constitute a systemic or systematic breach of the rights of refugees or asylum seekers. Moreover, practical realities lie at the heart of the inquiry; evidence of what happens on the ground must be capable of rebutting the presumption if it shows sufficiently clearly that there is a real risk of article 3 ill-treatment if there is an enforced return. Disposal ... 70. That examination can only be conducted properly if there is an assessment of the situation in the receiving country. In appropriate circumstances, this calls for a rigorous assessment – see Chahal v United Kingdom (1997) 23 EHRR 413 at para 96 and Vilvarajah v United Kingdom (1991) 14 EHRR 248 at para 108. The court must examine the foreseeable consequences of sending a claimant to the receiving country bearing in mind both the general situation there and the claimant ’ s personal circumstances, including his or her previous experience – see Vilvarajah at para 108 and Saadi v Italy (2009) 49 EHRR 30 at para 130. This approach has been followed by decisions of ECtHR subsequent to MSS – Hussein v Netherlands Application no. 27725/10 at paras 69 and 78 and Daytbegova v Austria Application no. 6198/12 at paras 61 and 67-69. ” THE LAW 53. Relying on Article 3 of the Convention, the applicants submitted that if they were returned to Italy “in the absence of individual guarantees concerning their care”, they would be subjected to inhuman and degrading treatment linked to the existence of “ systemic deficiencies ” in the reception arrangements for asylum seekers in Italy. Article 3 provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 54. Under Article 8 of the Convention the applicants submitted that their return to Italy, where they had no ties and did not speak the language, would be in breach of their right to respect for their family life. Article 8 reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 55. The Court, as master of the characterisation to be given in law to the facts of the case (see Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 43, ECHR 2012; Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998-I; Halil Yüksel Akıncı v. Turkey, no. 39125/04, § 54, 11 December 2012 ), considers it more appropriate to examine the complaint concerning the applicants ’ reception conditions in Italy solely from the standpoint of Article 3 of the Convention. 56. Relying on Article 13 of the Convention taken in conjunction with Article 3, the applicants complained that the Swiss authorities had not given sufficient consideration to their personal circumstances and had not taken into account their situation as a family in the procedure for their return to Italy, which they considered to be unduly formalistic and automatic, not to say arbitrary. Article 13 of the Convention provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION A. The parties ’ submissions 1. The applicants 57. The applicants maintained that the reception arrangements for asylum seekers in Italy were beset by systemic deficiencies, relating to: difficulties in gaining access to the reception facilities owing to the slowness of the identification procedure; the accommodation capacity of those facilities, which they regarded in any case as insufficient; and the inadequate living conditions in the available facilities. In support of their arguments, the applicants referred to the findings of the following organisations: the Swiss Refugee Council (SFH-OSAR), Reception conditions in Italy: Report on the current situation of asylum seekers and beneficiaries of protection, in particular Dublin returnees, Berne, October 2013 (“the SFH-OSAR report”); PRO ASYL, Maria Bethke, Dominik Bender, Zur Situation von Flüchtlingen in Italien, 28 February 2011, www.proasyl.de (“the PRO ASYL report”); Jesuit Refugee Service-Europe (JRS), Dublin II info country sheets. Country: Italy, November 2011 (“the JRS report”); Office of the United Nations High Commissioner for Refugees, UNHCR Recommendations on important aspects of refugee protection in Italy, July 2012 (“the 2012 UNHCR Recommendations”); report by Nils Muižnieks, Council of Europe Commissioner for Human Rights, published on 18 September 2012 following his visit to Italy from 3 to 6 July 2012 (“the Human Rights Commissioner ’ s 2012 report); and the European network for technical cooperation on the application of the Dublin II regulation, Dublin II Regulation National Report on Italy, 19 December 2012 (“the Dublin II network 2012 report”). ( a) Slowness of the identification procedure 58. The applicants submitted that asylum seekers ’ entitlement to accommodation in the CARAs or in the facilities belonging to the SPRAR network ( Sistema di protezione per richiedenti asilo e rifugiati ) “[took] effect only after” formal registration by the police of the asylum application ( verbalizzazione ). They contended that, in practice, there was sometimes a time lag of several weeks or even several months between the time when the persons concerned reported to the immigration department of the competent police headquarters and the registration of the application. In the meantime, the persons concerned were homeless. In the applicants ’ submission, a formal finding to that effect had been made by the Frankfurt Administrative Court in a judgment of 9 July 2013 (see paragraph 51 above), on the basis of information supplied by the SFH-OSAR and by the organisation Borderline-europe. Hence, in their view, there were shortcomings in the implementation of the administrative procedure laid down by law. They acknowledged, however, that the situation was somewhat different with regard to asylum seekers returned to Italy under the Dublin Regulation, who in theory had immediate access not just to the CARAs and the facilities belonging to the SPRAR, but also to the facilities provided by the municipal authorities and those set up under the projects financed by the 2008-2013 European Refugee Fund (ERF). ( b) Capacity of the reception facilities 59. The applicants acknowledged that the facilities financed by the ERF were intended for persons transferred under the Dublin Regulation, but submitted that the number of places available was insufficient in relation to the number of transferees. Citing the SFH-OSAR report, they contended that in 2012 there had been only 220 places available in total for 3,551 transferees, of whom 2,981 had come from Switzerland. 60. As to availability in the CARAs and in the facilities belonging to the SPRAR, the applicants maintained that it was difficult for “ Dublin ” returnees to gain access to those facilities. 61. With regard to the facilities belonging to the SPRAR network, the applicants – again citing the SFH-OSAR report – maintained that only 5% of the persons housed there in 2012 had been transferred under the Dublin Regulation and that, of those, only 6.5% had come from Switzerland, although transfers from that country accounted for 85% of the total number of “ Dublin ” transfers to Italy. The applicants inferred from this that large numbers of people returned under the “ Dublin ” procedure were left without accommodation. They added that, according to the SFH-OSAR, there had been numerous cases in which families transferred to Italy had not been housed together. 62. The applicants also supplied data concerning the accommodation of asylum seekers in general, irrespective of whether or not they were “ Dublin ” returnees. In that connection they submitted that 34,115 asylum applications had been made in Italy in 2011 and 15,715 in 2012, with a rise in the figures in 2013. According to the SFH-OSAR report there had been 64,000 refugees living in Italy in 2012. According to the same source, there had been only 8,000 places in the CARAs in 2012, with waiting lists so long that the majority of applicants had no realistic prospect of gaining access. 63. As to the facilities belonging to the SPRAR, the SFH-OSAR report stated that the number of places was 4,800 and that 5,000 people were on the waiting list. The same report noted that, according to two other organisations (Caritas and the JRS), only 6% of the persons housed in the SPRAR facilities – where, moreover, the maximum stay was six months – managed to find work and integrate professionally into Italian society. 64. With regard to the accommodation centres run by the municipal authorities, which were open to any person suffering hardship and not just to asylum seekers, the number of places also fell far short of what was needed. According to the SFH-OSAR report there were 1,300 places in Rome, with a waiting list of 1,000 and an average waiting time of three months. In Milan, there were only 400 places and families were systematically split up. The applicants added that, while it was true that some municipal authorities made social housing available to families, the number of places was clearly insufficient and the waiting list was around ten years. The accommodation offered by religious institutions and NGOs was also insufficient to meet demand. Lastly, asylum seekers had no access to private accommodation, as the economic situation in Italy, with rising unemployment, meant that they were unable to find work. 65. In conclusion, the applicants argued that, owing to the shortage of places in the various types of reception facilities, large numbers of asylum seekers, including families with small children, were forced to live in insalubrious squats and other makeshift accommodation, or simply on the streets. By way of example, according to the SFH-OSAR report there were between 1,200 and 1,700 people housed in precarious conditions in Rome, and between 2,300 and 2,800 people sleeping on the streets in Italy as a whole. ( c) Living conditions in the available facilities 66. The applicants contended that conditions in the CARAs in particular were contrary to the provisions of the Reception Directive. They referred to the findings of the organisation Borderline-europe, according to which, in the CARAs in Trapani (Sicily), five or six people shared a space of 15 sq m. and were obliged to sleep on mattresses on the floor. These centres also had inadequate sanitation facilities and lacked privacy. The latter was even a recurring problem in the CARAs and had particularly negative consequences for children, especially when the family unit was broken up as happened systematically in Milan, for instance. In the CARA in Mineo (Sicily), the occupants reportedly received no spending money, the sanitation facilities were poor, there was inadequate access to health care and criminal activity and prostitution were rife. 67. In their observations the applicants referred in particular to the 2012 UNHCR Recommendations and the Human Rights Commissioner ’ s 2012 report. They also attached considerable importance to the fact that the Frankfurt Administrative Court, in its judgment of 9 July 2013 (see paragraph 51 above), had held that 50% of asylum seekers risked being subjected to ill-treatment if returned to Italy, owing to reception conditions that did not comply with the European directives. 68. Lastly, the applicants submitted that the Swiss Government had not produced any document certifying that attempts had been made to find a specific solution for taking charge of the applicants. According to them, no request for minimum guarantees appeared to have been addressed to the Italian authorities, who had not provided any assurances that the applicants would be housed in decent conditions and not separated. They also submitted that the living conditions in the CARA in Bari, where they had spent two days during their stay in Italy, had been unacceptable, particularly owing to the lack of privacy and the violence this caused. 2. The Government ( a) Slowness of the identification procedure 69. The Government did not comment on the difficulties referred to by the applicants with regard to the slowness of the identification procedure. ( b) Capacity of the reception facilities 70. As to the capacity of the reception facilities, the Government submitted that 235 places were reserved in the ERF-financed facilities for asylum seekers facing return under the Dublin Regulation. The Government further stated that the capacity of the SPRAR network would be increased to 16,000 places over the period 2014-2016. They referred mainly to the 2012 UNHCR Recommendations and the Human Rights Commissioner ’ s 2012 report, and to the Court ’ s findings in Mohammed Hussein, cited above, and the follow-up decisions in the same vein ( Daytbegova and Magomedova v. Austria (dec.), no. 6198/12, 4 June 2013; Abubeker v. Austria and Italy (dec.), no. 73874/11, 18 June 2013; Halimi v. Austria and Italy (dec.), no. 53852/11, 18 June 2013; Miruts Hagos v. the Netherlands and Italy (dec.), no. 9053/10, 27 August 2013; Mohammed Hassan and Others v. the Netherlands and Italy (dec.), no. 40524/10, 27 August 2013; and Hussein Diirshi and Others v. the Netherlands and Italy (dec.), no. 2314/10, 10 September 2013). ( c) Living conditions in the available facilities 71. With regard to living conditions in the available facilities, the Government referred again to the 2012 UNHCR Recommendations and the Human Rights Commissioner ’ s 2012 report, submitting that there were no grounds for finding that the Reception Directive was being systematically violated in Italy. They added that they were unaware of any “ Dublin ” States which refused returns to Italy as a general rule and that neither UNHCR nor the Human Rights Commissioner had sought leave to intervene in the present proceedings, unlike in the case of M.S.S. 72. With reference to the applicants ’ specific case the Government stated that on 22 November 2011 the FMO had submitted a request to the Italian authorities to take charge of the applicants in accordance with Article 17 of the Dublin Regulation. No explicit reply had been received within the two months provided for by Article 18(1) of the Regulation; in the Government ’ s submission, this was regarded as implicit acceptance and had been customary at the time between Switzerland and Italy. 73. The practice had since changed and Italy now replied explicitly to requests to take charge emanating from Switzerland. 74. In general, a transfer under the “ Dublin ” procedure was a measure prepared a long time in advance and not one used to deal with an emergency situation, so that it was possible to take account of the situation of persons requiring special protection, such as families with young children, before their arrival on Italian territory. Cooperation with the Italian authorities in this area worked well, owing in particular to the presence of a Swiss liaison officer in the Dublin department of the Italian Ministry of the Interior. Since the beginning of 2013 the Italian authorities had adopted a new practice consisting of indicating, at the same time as agreeing to take charge of the asylum seeker, the airport and reception facility of destination. 75. In any event, at the hearing of 12 February 2014 the Government stated that they had been informed by the Italian authorities that, if returned to Italy, the applicants would be accommodated in an ERF-financed centre in Bologna. They did not provide any further details concerning the arrangements for transfer and the physical reception conditions envisaged by the Italian authorities. 3. Observations of the Italian, Dutch, Swedish, Norwegian and United Kingdom Governments and of the organisations Defence for Children, the AIRE Centre, ECRE and Amnesty International, third ‑ party interveners ( a) Slowness of the identification procedure 76. According to the observations of the Italian Government, under Article 20 of Legislative Decree no. 25/2008 of 28 January 2008, individuals seeking international protection could be provided with accommodation in the CARAs for the time necessary for their identification, that is to say, prior to the registration of their asylum application (for a period not exceeding twenty days), and while the territorial commission examined their application (for a period not exceeding thirty-five days). If their application was granted they had access to the SPRAR centres. That being said, Article 6 of Legislative Decree no. 140/2005 of 30 May 2005 provided that, where it had been established that there was a lack of space in the SPRAR centres, asylum seekers who could demonstrate that they lacked any means of subsistence were entitled to remain in the CARAs. The Italian Government did not provide information on any cases where asylum seekers had been forced to wait several weeks or even months before gaining access to a CARA, either before or after they had been identified. They submitted, however, that the average time taken to examine asylum applications had been 72 days in 2012 and 92 days in 2013. The length of time taken was due to the fact that, since each asylum seeker ’ s interview with the territorial commission had to last at least one hour, each of the ten commissions could not, in practice, process more than ten applications a day. A law that had entered into force on 4 September 2013 (no. 97/2013) had enabled some additional sections to be created within the territorial commissions in order to speed up the examination of asylum applications. 77. In common with the Swiss Government, the remaining third-party interveners did not comment on the practical aspects of this matter. (b) Capacity of the reception facilities 78. In their observations the Italian Government explained that, by a decree of 17 September 2013, the Ministry of the Interior had decided to double the total capacity of the SPRAR network to 16,000 places by the end of the period 2014-2016. The network currently comprised 9,630 places, of which 1,230 had been created since the enactment of the decree. In addition, the prefects of the Sicily region had been requested in a circular of 7 October 2013 to identify additional accommodation facilities for refugees, including in the private sector. To date, approximately forty such facilities had been identified, offering a total of 1,834 places, and a further six were ready to be brought into service in the event of an increase in the influx of refugees. In the first six months of 2013, 14,184 asylum applications had been made (situation at 15 June 2013). Lastly, at the hearing of 12 February 2014, the representative of the Italian Government described the surge in the number of asylum requests registered over the previous two years as “a catastrophic situation”. 79. The Dutch, Swedish, Norwegian and United Kingdom Governments endorsed in substance the position of the Swiss Government. Like the latter they observed that, in contrast to the case of Greece, UNHCR had not called for transfers of certain vulnerable groups to Italy to be halted. 80. The Swedish Government observed that Italy and the European Asylum Support Office (EASO) had signed a Special Support Plan on 4 June 2013 aimed at improving reception conditions for asylum seekers. Furthermore, “ Dublin ” returns to Italy were the subject of a systematic exchange of information between the authorities of the two countries, which was particularly thorough in the case of vulnerable persons and especially unaccompanied children. 81. The United Kingdom Government submitted that the reports to which the applicants referred in their assessment of the situation on the ground, and in particular the PRO ASYL report, often failed to make a distinction between “asylum seekers”, “recognised refugees” and “failed asylum seekers”. This distinction was critical, however, since the Reception Directive applied only to asylum seekers, whose status was inherently temporary, while the Qualification Directive, which applied to refugees, placed the latter on an equal footing with nationals in terms of access to employment, education and social welfare. The data contained in those reports therefore gave a false picture. By way of example, the United Kingdom Government pointed out that the SFH-OSAR report criticised conditions in the Tor Marancia shelter in Rome, while acknowledging that the shelter accommodated Afghan men with recognised refugee status. 82. The organisation Defence for Children shared the applicants ’ view that the capacity to accommodate asylum seekers in Italy was clearly insufficient, arguing that this had particularly serious consequences for children, some of whom were forced to live in squats and other insalubrious accommodation. The NGO referred to the information published in the SFH-OSAR report. (c) Living conditions in the available facilities 83. Like the applicants, the organisation Defence for Children, citing the SFH-OSAR report, contended that several families sent back to Italy under the Dublin Regulation had been separated on their arrival in the reception facilities, particularly in the CARAs. In Milan, this practice was even systematic. In their observations, Defence for Children stressed the concept of the “best interests of the child” as defined by the Convention on the Rights of the Child of 20 November 1989, and submitted that in “ Dublin ” return cases the social and emotional development of children should be a decisive factor in assessing their “ best interests ”. The NGO referred in particular to Article 6 of the Dublin III Regulation, which came into force on 1 January 2014 (see paragraph 3 5 above). 84. Defence for Children stressed, in particular, the importance attached by the United Nations Committee on the Rights of the Child to protecting the family environment, and referred to the Court ’ s case-law on the detention of children, particularly migrants, with regard to living conditions. In conclusion, they requested the Court to prohibit the return of children to Italy on account of the precarious conditions in which asylum seekers were housed there. 85. The AIRE Centre, ECRE and Amnesty International also referred to the concept of the “child ’ s best interests” and submitted that children should only be transferred to other Member States of the European Union if this was in their best interests. 86. The Italian Government confirmed at the hearing of 12 February 2014 that there had been some episodes of violence at the CARA in Bari shortly before the applicants ’ arrival. However, they denied that families of asylum seekers were systematically split up; this occurred only in a few cases and for very short periods during the first few days when asylum seekers were being taken charge of and identified. In their observations they also stated that asylum seekers belonging to a category considered by the Italian authorities to be vulnerable – which was the case of the applicants, as a family with children – were taken charge of within the SPRAR system, which guaranteed them accommodation, food, health care, Italian classes, referral to social services, legal advice, vocational training, apprenticeships and help in finding their own accommodation. B. The Court ’ s assessment 87. The Court notes at the outset that, according to the Swiss Government, if they were returned to Italy the applicants would be accommodated in Bologna in a facility belonging to the network financed by the ERF (see paragraph 7 5 above). Even assuming that this factor raises an issue under Article 37 § 1 ( b) or ( c) of the Convention, the Court considers that it should be included in its examination of the merits of the application (see paragraph 121 below). 1. Switzerland ’ s responsibility under the Convention 88. The Court notes that, in the present case, Switzerland ’ s responsibility under Article 3 of the Convention is not disputed. Nevertheless, the Court considers it relevant to observe that, in the case of Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland ([GC], no. 45036/98, § 152, ECHR 2005 ‑ VI), it held that the Convention did not prohibit Contracting Parties from transferring sovereign power to an international organisation in order to pursue cooperation in certain fields of activity. The States nevertheless remain responsible under the Convention for all actions and omissions of their bodies under their domestic law or under their international legal obligations (ibid., § 153). State action taken in compliance with such legal obligations is justified as long as the relevant organisation is considered to protect fundamental rights in a manner which can be considered at least equivalent to that for which the Convention provides. However, a State will be fully responsible under the Convention for all acts falling outside its strict international legal obligations, notably where it has exercised State discretion (ibid., §§ 155-57; see also Michaud v. France, no. 12323/11, §§ 102-04, ECHR 2012 ). It is true that, unlike Ireland in the Bosphorus case, Switzerland is not a Member State of the European Union. However, under the terms of the association agreement of 26 October 2004 between the Swiss Confederation and the European Community, Switzerland is bound by the Dublin Regulation (see paragraphs 34 to 36 above) and participates in the system established by that instrument. 89. The Court notes that Article 3(2) of the Dublin Regulation provides that, by derogation from the general rule set forth in Article 3(1), each Member State may examine an application for asylum lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in the Regulation. This is the so-called “sovereignty” clause (see paragraph 3 2 above). In such a case the State concerned becomes the Member State responsible for examining the asylum application for the purposes of the Regulation and takes on the obligations associated with that responsibility (see M.S.S., cited above, § 339). By virtue of the association agreement, this mechanism applies also to Switzerland. 90. The Court concludes from this that the Swiss authorities could, under the Dublin Regulation, refrain from transferring the applicants to Italy if they considered that the receiving country was not fulfilling its obligations under the Convention. Consequently, it considers that the decision to return the applicants to Italy does not strictly fall within Switzerland ’ s international legal obligations in the context of the system established by the Dublin Regulation. Accordingly, the presumption of equivalent protection does not apply in this case ( see, mutatis mutandis, M.S.S., cited above, § 340). 91. Switzerland must therefore be considered to bear responsibility under Article 3 of the Convention in the present case. 2. Admissibility 92. The Court notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It therefore declares it admissible. 3. Merits ( a) Recapitulation of general principles 93. The Court reiterates that according to its well-established case-law the expulsion of an asylum seeker by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned faces a real risk of being subjected to torture or inhuman or degrading treatment or punishment in the receiving country. In such circumstances, Article 3 implies an obligation not to expel the individual to that country ( see Saadi v. Italy [GC], no. 37201/06, § 152, ECHR 2008; M.S.S., cited above, § 365; Soering v. the United Kingdom, 7 July 1989, §§ 90-91, Series A no. 161; Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 103, Series A no. 125; H.L.R. v. France, 29 April 1997, § 34, Reports 1997-III; Jabari v. Turkey, no. 40035/98, § 38, ECHR 2000 ‑ VIII; and Salah Sheekh v. the Netherlands, no. 1948/04, § 135, ECHR 2007 ‑ I). 94. The Court has held on numerous occasions that to fall within the scope of Article 3 the ill- treatment must attain a minimum level of severity. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects and, in some instances, the sex, age and state of health of the victim (see, inter alia, Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000-XI, and M.S.S., cited above, § 219). 95. The Court has also ruled that Article 3 cannot be interpreted as obliging the High Contracting Parties to provide everyone within their jurisdiction with a home ( see Chapman v. the United Kingdom [GC], no. 27238/95, § 99, ECHR 2001 ‑ I). Nor does Article 3 entail any general obligation to give refugees financial assistance to enable them to maintain a certain standard of living (see Müslim v. Turkey, no. 53566/99, § 85, 26 April 2005, and M.S.S., cited above, § 249). 96. In the M.S.S. judgment (§ 250), the Court nevertheless took the view that what was at issue in that case could not be considered in those terms. Unlike in the Müslim case ( cited above, §§ 83 and 84), the obligation to provide accommodation and decent material conditions to impoverished asylum seekers had entered into positive law and the Greek authorities were bound to comply with their own legislation transposing European Union law, namely the Reception Directive. What the applicant held against the Greek authorities in that case was that, because of their deliberate actions or omissions, it had been impossible in practice for him to avail himself of those rights and provide for his essential needs. 97. In the same judgment (§ 251), the Court attached considerable importance to the applicant ’ s status as an asylum seeker and, as such, a member of a particularly underprivileged and vulnerable population group in need of special protection. It noted the existence of a broad consensus at the international and European level concerning this need for special protection, as evidenced by the Geneva Convention, the remit and the activities of the UNHCR and the standards set out in the European Union Reception Directive. 98. Still in M.S.S. (§§ 252 and 253), having to determine whether a situation of extreme material poverty could raise an issue under Article 3, the Court reiterated that it had not excluded “the possibility that the responsibility of the State [might] be engaged [under Article 3] in respect of treatment where an applicant, who was wholly dependent on State support, found herself faced with official indifference in a situation of serious deprivation or want incompatible with human dignity” (see Budina v. Russia (dec.), no. 45603/05, 18 June 2009). 99. With more specific reference to minors, the Court has established that it is important to bear in mind that the child ’ s extreme vulnerability is the decisive factor and takes precedence over considerations relating to the status of illegal immigrant ( see Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, § 55, ECHR 2006 ‑ XI, and Popov v. France, nos. 39472/07 and 39474/07, § 91, 19 January 2012 ). Children have specific needs that are related in particular to their age and lack of independence, but also to their asylum-seeker status. The Court has also observed that the Convention on the Rights of the Child encourages States to take the appropriate measures to ensure that a child who is seeking to obtain refugee status enjoys protection and humanitarian assistance, whether the child is alone or accompanied by his or her parents ( see to this effect Popov, cited above, § 91). ( b) Application of these principles to the present case 100. The applicants argued in substance that if they were returned to Italy “ in the absence of individual guarantees concerning their care” they would be subjected to inhuman and degrading treatment linked to the existence of “systemic deficiencies” in the reception arrangements for asylum seekers. 101. In order to examine this complaint the Court considers it necessary to follow an approach similar to that which it adopted in the M.S.S. judgment, cited above, in which it examined the applicant ’ s individual situation in the light of the overall situation prevailing in Greece at the relevant time. 102. It first reiterates its well-established case-law according to which the expulsion of an asylum seeker by a Contracting State may give rise to an issue under Article 3 where “substantial grounds have been shown for believing” that the person concerned faces a “real risk” of being subjected to torture or inhuman or degrading treatment or punishment in the receiving country ( see paragraph 9 3 above ). 103. It is also clear from the M.S.S. judgment that the presumption that a State participating in the “ Dublin ” system will respect the fundamental rights laid down by the Convention is not irrebuttable. For its part, the Court of Justice of the European Union has ruled that the presumption that a Dublin State complies with its obligations under Article 4 of the Charter of Fundamental Rights of the European Union is rebutted in the event of “ systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman or degrading treatment, within the meaning of Article 4 of the Charter, of asylum seekers transferred to the territory of that Member State ” ( see paragraph 3 3 above ). 104. In the case of “ Dublin ” returns, the presumption that a Contracting State which is also the “ receiving ” country will comply with Article 3 of the Convention can therefore validly be rebutted where “substantial grounds have been shown for believing” that the person whose return is being ordered faces a “real risk” of being subjected to treatment contrary to that provision in the receiving country. The source of the risk does nothing to alter the level of protection guaranteed by the Convention or the Convention obligations of the State ordering the person ’ s removal. It does not exempt that State from carrying out a thorough and individualised examination of the situation of the person concerned and from suspending enforcement of the removal order should the risk of inhuman or degrading treatment be established. The Court also notes that this approach was followed by the United Kingdom Supreme Court in its judgment of 19 February 2014 (see paragraph 5 2 above). 105. In the present case the Court must therefore ascertain whether, in view of the overall situation with regard to the reception arrangements for asylum seekers in Italy and the applicants ’ specific situation, substantial grounds have been shown for believing that the applicants would be at risk of treatment contrary to Article 3 if they were returned to Italy. ( i ) Overall situation with regard to the reception arrangements for asylum seekers in Italy 106. As regards the overall situation, in its decision in Mohammed Hussein ( cited above, § 78), the Court noted that the UNHCR Recommendations and the Human Rights Commissioner ’ s report, both published in 2012, referred to a number of failings. According to the applicants, these were “ systemic ” and stemmed from the slowness of the identification procedure, the inadequate capacity of the reception facilities and the living conditions in the available facilities (see paragraphs 5 6 to 6 7 above). ( α) Slowness of the identification procedure 107. As regards the problems allegedly linked to the slowness of the identification procedure, the Court notes that the applicants have already been identified and that the Swiss and Italian authorities now have all the relevant information concerning them. It further observes that it took the Italian authorities only ten days to identify the applicants on their arrival in Stignano, despite the fact that they had supplied a false identity to the police (see paragraph 10 above). Accordingly, this aspect of the applicants ’ complaint is no longer directly relevant to the examination of the case and the Court sees no need to dwell on it further. ( β ) Capacity of the reception facilities 108. With regard to the capacity of the accommodation facilities for asylum seekers, the applicants based their submissions on detailed studies carried out by non-governmental organisations, according to which the number of asylum applications in Italy was 34, 115 in 2011 and 15, 715 in 2012, with the figures rising in 2013. According to the SFH- OSAR report, there were 64,000 refugees living in Italy in 2012; however, in 2012 there were only 8,000 places in the CARAs, with waiting lists so long that the majority of applicants had no realistic prospect of gaining access. As to the facilities belonging to the SPRAR network, the SFH-OSAR report stated that there were 4,800 places and 5,000 people on the waiting list. The same report observed that, according to two other organisations, Caritas and the JRS, only 6% of the persons housed in the SPRAR facilities – where, moreover, the maximum stay was six months – managed to find work and integrate professionally into Italian society. With regard to the accommodation centres run by the municipal authorities, which were open to any person suffering hardship and not just to asylum seekers, the number of places also fell far short of what was needed. According to the SFH ‑ OSAR report there were 1,300 places in Rome, with a waiting list of 1,000 and an average waiting time of three months. In Milan, there were only 400 places and families were systematically split up. 109. The Court notes that these figures were not disputed by the Swiss Government, which simply emphasised the efforts undertaken by the Italian authorities to cope as best they could with the uninterrupted flow of asylum seekers into the country over the past few years. In their observations, the Italian Government stated that the measures being taken by the Italian authorities were focused on increasing reception capacity for asylum seekers. In particular, it had been decided in September 2013 to increase the overall capacity of the SPRAR system to 16,000 places over the period 2014-2016; 1,230 places had already been created, bringing the total of available places to 9,630 (see paragraph 7 8 above). 110. The Court notes that the methods used to calculate the number of asylum seekers without accommodation in Italy are disputed. Without entering into the debate as to the accuracy of the available figures, it is sufficient for the Court to note the glaring discrepancy between the number of asylum applications made in 2013, which according to the Italian Government totalled 14,184 by 15 June 2013 (see paragraph 7 8 above), and the number of places available in the facilities belonging to the SPRAR network (9,630 places), where – again according to the Italian Government – the applicants would be accommodated (see paragraph 7 6 above). Moreover, given that the figure for the number of applications relates only to the first six months of 2013, the figure for the year as a whole is likely to be considerably higher, further weakening the reception capacity of the SPRAR system. The Court further notes that neither the Swiss nor the Italian Government claimed that the combined capacity of the SPRAR system and the CARAs would be capable of absorbing the greater part, still less the entire demand for accommodation. ( γ ) Reception conditions in the available facilities 111. As regards living conditions in the available facilities, the studies cited by the applicants referred to certain accommodation centres where lack of privacy, insalubrious conditions and violence were allegedly widespread (see paragraphs 6 6 to 6 7 above). The applicants themselves also claimed to have witnessed violent incidents during their short stay in the Bari CARA. They further submitted that, in some centres, families of asylum seekers were systematically split up. 112. The Court notes that in its Recommendations for 2013 UNHCR did indeed describe a number of problems, relating in particular to the varying quality of the services provided, depending on the size of the facilities, and to a lack of coordination at national level. However, while it observed a degree of deterioration in reception conditions, particularly in 2011, and a problem of overcrowding in the CARAs, UNHCR did not refer to situations of widespread violence or insalubrious conditions, and even welcomed the efforts undertaken by the Italian authorities to improve reception conditions for asylum seekers. The Human Rights Commissioner, in his 2012 report (see paragraph 4 9 above), also noted the existence of problems in “some of the reception facilities”, voicing particular concern with regard to legal aid, care and psychological assistance in the emergency reception centres, the time taken to identify vulnerable persons and the preservation of family unity during transfers. 113. Lastly, the Court notes that at the hearing of 12 February 2014 the Italian Government confirmed that violent incidents had occurred in the Bari CARA shortly before the applicants ’ arrival. They denied, however, that the families of asylum seekers were systematically separated, stating that this occurred only in a few cases and for very short periods, notably during the identification procedures. 114. In view of the foregoing, the current situation in Italy can in no way be compared to the situation in Greece at the time of the M.S.S. judgment, cited above, where the Court noted in particular that there were fewer than 1,000 places in reception centres to accommodate tens of thousands of asylum seekers and that the conditions of the most extreme poverty described by the applicant existed on a large scale. Hence, the approach in the present case cannot be the same as in M.S.S. 115. While the structure and overall situation of the reception arrangements in Italy cannot therefore in themselves act as a bar to all removals of asylum seekers to that country, the data and information set out above nevertheless raise serious doubts as to the current capacities of the system. Accordingly, in the Court ’ s view, the possibility that a significant number of asylum seekers may be left without accommodation or accommodated in overcrowded facilities without any privacy, or even in insalubrious or violent conditions, cannot be dismissed as unfounded. ii. The applicants ’ individual situation 116. As regards the applicants ’ individual situation, the Court notes that, according to the findings of the Italian police and the identification forms annexed to the observations of the Italian Government, the couple and their five oldest children landed on the coast of Calabria on 16 July 2011 and were immediately subjected to an identification procedure, having supplied a false identity. The same day, the applicants were placed in a reception facility provided by the municipal authorities of Stignano, where they remained until 26 July 2011. On that date, once their true identity had been established, they were transferred to the CARA in Bari. They left that centre without permission on 28 July 2011, bound for an unknown destination. 117. Accordingly, just as the overall situation of asylum seekers in Italy is not comparable to that of asylum seekers in Greece as analysed in the M.S.S. judgment (see paragraph 11 4 above), the specific situation of the applicants in the present case is different from that of the applicant in M.S.S. Whereas the applicants in the present case were immediately taken charge of by the Italian authorities, the applicant in M.S.S. was first placed in detention and then left to fend for himself, without any means of subsistence. 118. The Court reiterates that to fall within the scope of Article 3 the ill ‑ treatment must attain a minimum level of severity. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects and, in some instances, the sex, age and state of health of the victim (see paragraph 9 4 above). It further reiterates that, as a “particularly underprivileged and vulnerable” population group, asylum seekers require “ special protection ” under that provision (see M.S.S ., cited above, § 251). 119. This requirement of “special protection” of asylum seekers is particularly important when the persons concerned are children, in view of their specific needs and their extreme vulnerability. This applies even when, as in the present case, the children seeking asylum are accompanied by their parents ( see Popov, cited above, § 91). Accordingly, the reception conditions for children seeking asylum must be adapted to their age, to ensure that those conditions do not “create ... for them a situation of stress and anxiety, with particularly traumatic consequences” ( see, mutatis mutandis, Popov, cited above, § 102). Otherwise, the conditions in question would attain the threshold of severity required to come within the scope of the prohibition under Article 3 of the Convention. 120. In the present case, as the Court has already observed (see paragraph 11 5 above), in view of the current situation as regards the reception system in Italy, and although that situation is not comparable to the situation in Greece which the Court examined in M.S.S., the possibility that a significant number of asylum seekers removed to that country may be left without accommodation or accommodated in overcrowded facilities without any privacy, or even in insalubrious or violent conditions, is not unfounded. It is therefore incumbent on the Swiss authorities to obtain assurances from their Italian counterparts that on their arrival in Italy the applicants will be received in facilities and in conditions adapted to the age of the children, and that the family will be kept together. 121. The Court notes that, according to the Italian Government, families with children are regarded as a particularly vulnerable category and are normally taken charge of within the SPRAR network. This system apparently guarantees them accommodation, food, health care, Italian classes, referral to social services, legal advice, vocational training, apprenticeships and help in finding their own accommodation (see paragraph 8 6 above). However, in their written and oral observations the Italian Government did not provide any further details on the specific conditions in which the authorities would take charge of the applicants. It is true that at the hearing of 12 February 2014 the Swiss Government stated that the FMO had been informed by the Italian authorities that, if the applicants were returned to Italy, they would be accommodated in Bologna in one of the facilities funded by the ERF (see paragraph 7 5 above). Nevertheless, in the absence of detailed and reliable information concerning the specific facility, the physical reception conditions and the preservation of the family unit, the Court considers that the Swiss authorities do not possess sufficient assurances that, if returned to Italy, the applicants would be taken charge of in a manner adapted to the age of the children. 122. It follows that, were the applicants to be returned to Italy without the Swiss authorities having first obtained individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together, there would be a violation of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 3 123. The applicants complained that the Swiss authorities had not given sufficient consideration to their personal circumstances and had not taken into account their situation as a family in the procedure for their return to Italy, which they considered to be unduly formalistic and automatic, not to say arbitrary. 124. The Swiss Government contested that argument. In their view, the risk of treatment contrary to Article 3 had been duly examined by the Swiss authorities before the applicants ’ removal to Italy had been ordered. At the interview of 15 November 2011, which had been conducted in a language they understood, the applicants had been invited to explain in detail the possible grounds for not returning them to Italy, but had invoked only general economic grounds. Only after their application had been dismissed for the first time by the Federal Administrative Court had they provided further details concerning their reception conditions in Italy. In any event, that new information had not been capable of altering the decision to remove them and had been dismissed by the Federal Administrative Court in its decision of 21 March 2012. 125. At the hearing of 12 February 2014 the Government stated that the Swiss authorities did not hesitate to apply the sovereignty clause provided for by Article 3(2) of the Dublin Regulation where they deemed it necessary. This was borne out by the examples provided by the AIRE Centre, ECRE and Amnesty International, some twenty of which concerned returns to Italy. 126. The Court reiterates that an applicant ’ s complaint alleging that his or her removal to a third State would expose him or her to treatment prohibited under Article 3 of the Convention “must imperatively be subject to close scrutiny by a ‘ national authority ’ ” (see Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 198, ECHR 2012). That principle has led the Court to rule that the notion of “effective remedy” within the meaning of Article 13 taken in conjunction with Article 3 requires, firstly, “independent and rigorous scrutiny” of any complaint made by a person in such a situation, where “there exist substantial grounds for fearing a real risk of treatment contrary to Article 3” and, secondly, “the possibility of suspending the implementation of the measure impugned” (ibid. ). 127. In the present case the Court notes that the applicants were interviewed by the FMO on 15 November 2011, in a language they understood, and asked to explain in detail the possible grounds for not returning them to Italy. 128. Following the decision of the FMO of 24 January 2012 to reject their claim for asylum and return them to Italy, on 2 February 2012 the applicants were able to lodge an application with the Federal Administrative Court. They submitted before that court that the reception conditions in Italy were in breach of the Convention. The Federal Administrative Court ruled promptly on the application and dismissed it on 9 February 2012, that is, seven days after it had been lodged. 129. Following that dismissal the applicants decided to file a request with the FMO “to have the asylum proceedings reopened”. That request, based on a reworded account by the applicants of their stay in Italy, was sent to the Federal Administrative Court, which classified it as a “request for revision” of the judgment of 9 February 2012 and declared it inadmissible on the grounds that it was essentially a reclassification of the facts of the case. 130. The Court notes that it is not disputed that at the time of the Federal Administrative Court ’ s judgment of 9 February 2012 the applicants had not produced any evidence before the national authorities to suggest that their safety would be at risk if they were returned to Italy. It also notes that the aforementioned judgment of the Federal Administrative Court dealt unambiguously with the specific situation of the applicants as a family with young children, addressed in detail the complaints raised by the applicants and was fully reasoned. Furthermore, the Court does not discern the slightest arbitrariness in the Federal Administrative Court ’ s decision not to take account of the reworded description by the applicants of their stay in Italy and to declare their request for revision inadmissible. It also notes that this type of application is lodged in extraordinary proceedings and, with regard to factual considerations, cannot be declared admissible unless “the applicant later discovers relevant facts or conclusive evidence that he or she was unable to rely on in the previous proceedings ” ( section 123 of the Federal Administrative Court Act), which is not the case here. 131. Furthermore, the fact that the Federal Administrative Court has opposed the return of asylum seekers to “Dublin” States in some cases, including that of a family with young children who were to be deported to Italy, or made it subject to conditions (see paragraphs 26 and 27 above), also suggests that that court normally undertakes a thorough examination of each individual situation and, as stressed by the Swiss Government, does not hesitate to invoke the “sovereignty clause” contained in Article 3(2) of the Dublin Regulation. 132. It follows that the applicants had available to them an effective remedy in respect of their Article 3 complaint. Accordingly, their complaint under Article 13 of the Convention taken in conjunction with Article 3 must be rejected as manifestly ill - founded, in accordance with Article 35 §§ 3 ( a) and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 133. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 134. The applicants did not submit any claim for just satisfaction in respect of pecuniary damage. Accordingly, the Court considers that it is unnecessary to make an award under this head. 135. The applicants claimed the sum of 7,500 euros (EUR) in respect of non-pecuniary damage. 136. The Government stressed that the applicants had not been transferred to Italy and submitted that the finding that such a transfer would be in breach of Article 3 of the Convention would constitute sufficient just satisfaction. 137. The Court considers that its finding in paragraph 122 of the present judgment constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants (see, to this effect, Beldjoudi v. France, 26 March 1992, §§ 79 and 86, Series A no. 234-A; M. and Others v. Bulgaria, no. 41416/08, §§ 105 and 143, 26 July 2011; and Nizamov and Others v. Russia, nos. 22636/13, 24034/13, 24334/13 and 24328/13, § 50, 7 May 2014). B. Costs and expenses 138. Before the Chamber, the applicants had also claimed EUR 3,585 in respect of the fees paid to their representatives and 262 Swiss francs (CHF) (EUR 215) for interpretation costs in connection with their meetings with their representatives. 139. The Government did not object to this claim. 140. On 3 April 2014 the applicants submitted a further claim for just satisfaction in addition to that submitted before the Chamber. The additional claim concerned the cost of preparing for and being represented at the hearing of 12 February 2014. The additional costs totalled CHF 10,196. 141. The Government contested this additional claim, arguing that it had been submitted out of time. 142. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and to its case-law, the Court considers the sum of EUR 7,000 to be reasonable to cover costs under all heads, and awards it to the applicants. C. Default interest 143. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there would be a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention if the Swiss authorities were to send the applicants back to Italy under the Dublin Regulation without having first obtained individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together. The Court found in particular that, in view of the current situation regarding the reception system in Italy, and in the absence of detailed and reliable information concerning the specific facility of destination, the Swiss authorities did not possess sufficient assurances that, if returned to Italy, the applicants would be taken charge of in a manner adapted to the age of the children. The Court further considered that the applicants had had available to them an effective remedy in respect of their complaint under Article 3 of the Convention. Accordingly, it rejected their complaint under Article 13 (right to an effective remedy) of the Convention taken in conjunction with Article 3 as manifestly ill-founded. |
855 | Interception of communications, phone tapping and secret surveillance | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Relevant domestic law 1. Constitution 52. The relevant provisions of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010 and 85/2010) read as follows: Article 29 “In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law. ” Article 35 “Everyone has a right to respect for and legal protection of his private and family life, dignity, reputation and honour.” Article 36 “Freedom and confidentiality of correspondence and all other forms of communication are guaranteed and inviolable. Only the law may provide for restrictions necessary for the protection of national security or the conduct of criminal proceedings.” 53. The relevant part of section 62 of the Constitutional Court Act ( Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002) reads as follows: Section 62 “1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that an individual act on the part of a State body, a body of local or regional self-government, or a legal person with public authority, concerning his or her rights and obligations or a suspicion or accusation of a criminal deed, has violated his or her human rights or fundamental freedoms or his or her right to local or regional self-government guaranteed by the Constitution (hereinafter “a constitutional right”) ... 2. If another legal remedy exists in respect of the violation of the constitutional right [complained of], a constitutional complaint may be lodged only after that remedy has been used.” 2. Criminal Code 54. The relevant part of the Criminal Code ( Kazneni zakon, Official Gazette no. 110/1997, 27/1998, 129/2000, 51/2001, 105/2004, 84/2005, 71/2006 ) provides: Title thirteen (XIII) Criminal offences against the values of international law Abuse of Narcotic Drugs Article 173 “ ... (2) Whoever, without authorisation, manufactures, processes, sells or offers for sale or buys for the purpose of reselling, keeps, distributes or brokers the sale and purchase of, or, in some other way and without authorisation, puts into circulation, substances or preparations which are by regulation declared to be narcotic drugs, shall be liable to a minimum sentence of three years ’ imprisonment .” Title twenty- one (XXI) Criminal offences against confidence in the financial sector and the economy Money laundering Article 279 “(1) Whoever, in the course of a banking, financial or other business enterprise, invests, accepts, exchanges or by any other means conceals the real source of money or objects or rights obtained by that money which he or she knows has been obtained as a result of a criminal offence shall be liable to between six months and five years ’ imprisonment ... ” 3. Code of Criminal Procedure 55. The relevant provisions of the Code of Criminal Procedure ( Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002 and 62/2003) provide as follows: Article 9 “(1) The courts ’ decisions in criminal proceedings cannot be based on unlawfully obtained evidence (unlawful evidence). (2) Unlawfully obtained evidence is evidence obtained by means of a breach of the fundamental rights of the defence, the right to dignity, reputation, honour and respect for private and family life guaranteed under the Constitution, domestic law or international law, or evidence obtained in breach of the rules of criminal procedure in so far as set out in this Code, as well as any other evidence obtained unlawfully. “ Transfer of jurisdiction Article 31 “ Where the competent court, for legal or practical reasons, is unable to act, it shall inform the immediately higher court, which shall, after obtaining the opinion of the State Attorney, designate another court on its territory [as the competent court]. No appeal lies against this decision.” Disqualification Article 36 “1. A judge or lay judge shall be disqualified from sitting in a case (1) if he has been injured by the offence; (2) if he is the spouse, a relative by blood, either lineal, descending or ascending, or collateral to the fourth degree, or related by affinity to the second degree, to the defendant, his counsel, the prosecutor, the injured person, their legal guardian or legal representative; (3) if he is a legal guardian, ward, adopted child or adoptive parent, foster parent or foster child of the defendant, his counsel, the prosecutor or the injured person; (4) if in the same criminal case he has carried out measures during the investigation, or has taken part in ruling on an objection to the indictment, or if he has taken part in the proceedings as a prosecutor, defence counsel, legal guardian or legal representative of the injured person or the prosecutor, or if he has testified as a witness or as an expert witness; (5) if in the same case he has taken part in adopting the decision of a lower court or in adopting a decision of the same court being challenged by means of an appeal or extraordinary remedy. 2. A judge or lay judge may be disqualified from sitting in a particular case if it has been argued and proved that there are circumstances other than those listed in the previous paragraph which call his impartiality into doubt.” Article 37 “1. A judge or lay judge, as soon as he discovers a ground for his disqualification referred to in Article 36, paragraph 1, of this Code, shall discontinue all activity in the case and report the matter to the president of the court, who shall appoint a substitute judge. ... 2. If a judge or lay judge considers that other circumstances exist which would justify his withdrawal (Article 36, paragraph 2), he shall inform the president of the court thereof.” Grounds for Ordering Detention Section 102 “(1) Where a reasonable suspicion exists that a person has committed an offence, that person may be placed in detention: 1. where there are circumstances which show that there is a risk that [the defendant] will abscond [is in hiding or his or her identity cannot be established, and so on); 2. if there is a risk that he or she might destroy, hide, alter or forge evidence or traces relevant for the criminal proceedings or might suborn witnesses, or where there is a risk of collusion; 3. special circumstances justify the suspicion that the person concerned might reoffend; 4. where the charges relate to murder, robbery, rape, terrorism, kidnapping, abuse of narcotic drugs, extortion or any other offence carrying a sentence of at least twelve years ’ imprisonment, or where detention is justified by the modus operandi or other especially grave circumstances of the offence.” Special investigative measures temporarily limiting constitutional rights and freedoms Article 180 “(1) If an investigation by other means would either not be possible or would be extremely difficult, upon a request by the State Attorney the investigating judge can, where there is probable cause to believe that an individual, acting alone or jointly with others, has committed one of the offences proscribed under Article 181 of this Code, order in respect of that individual the following measures restricting the constitutional rights of citizens: 1. telephone tapping, ... 3. covert monitoring of persons and objects ... ” Article 180a “Recordings, documents and objects obtained under the conditions provided for in Article 180 § 1 (1), ... (3) ... and Article 182 of this Code can be used as evidence in the criminal proceedings. ... ” Article 181 “ Measures under Article 180 of this Code can be ordered in respect of the following offences: 1. ... against the values of international law ( Chapter XIII) ... ” Article 182 “(1) The measures under Article 180 of this Code shall be authorised by a written reasoned order of the investigating judge. The order shall be executed by the police. The order shall stipulate all relevant information about the individual concerned, the circumstances justifying the need for the measures, the time-limits within which the measures can be carried out – which must be proportionate to the legitimate aim pursued – and the scope and place of the measures. ... (2) The measures can last for a maximum period of four months. Following a request by the State Attorney, the measures can be extended for a further three months. In the event of a disagreement between the State Attorney and the investigating judge, a decision shall be taken by a [three-judge] panel (Article 20 § 2). Where there are no grounds for further surveillance, the investigating judge shall order the discontinuation of the measures. If the State Attorney drops the charges, or if the results of the measures are not relevant for the criminal proceedings, [these results] shall be destroyed under the supervision of the investigating judge, who shall draw up a record accordingly and file it in the case file. ... (6) If measures under Article 180 of this Code have been taken without an order of the investigating judge or contrary to Articles 180 and 182 § 2 of this Code, the evidence and information thus obtained cannot be used in the criminal proceedings.. ... ” Article 182a “(1) The measures under Article 180 of this Code shall be executed by the police. During their execution, the police shall prepare daily reports and other documentation related to the recordings which, based on a special request, shall be forwarded to the investigating judge or the State Attorney ’ s Office. (2) Upon the expiry of the use of the measures, the police shall submit a special report to the State Attorney ’ s Office and the investigating judge in which they shall indicate: 1. the time of the beginning and end of the use of the measure; 2. the number and nature of activities undertaken by the State officials in the execution of the measure; 3. the type and number of technical devices used; 4. the number and identity of persons in respect of whom the measure has been taken; 5. the type of the offences under Article 181 of this Code which were possibly prevented by the use of the measure; 6. a succinct analysis of the question whether the measure contributed to or achieved the aim indicated in the order for its use.” 56. On 18 December 2008 a new Code of Criminal Procedure was enacted (Official Gazette, nos. 152/2008, 76/2009, 80/2011, 121/ 2011, 91/2012, 143/2012 and 56/2013) which, in so far as relevant to the instant case, provides no particular amendments to the use of secret surveillance measures. B. Relevant practice 57. In its decision no. U-III-857/2008 of 1 October 2008 the Constitutional Court examined a complaint about the unlawfulness of secret surveillance orders made in the course of criminal proceedings. The Constitutional Court noted the relevant principles but dismissed the complaint for non-exhaustion of domestic remedies because the appellant had failed to complain about the alleged unlawfulness of his secret surveillance during the criminal proceedings. The relevant part of the decision reads: “8.1. Where the secret surveillance order of the investigating judge, besides the operative part listing the measures to be conducted in respect of a person, contains nothing more in its statement of reasons than a mere statement referring to the [State Attorney ’ s] request for the use of secret surveillance in respect of a person ‘ because there is probable cause to believe that an offence has been committed ’ and that this is apparent from the [police reports], then it is clear that this breaches the constitutional guarantee of respect for private and family life under Article 35 of the Constitution, and the confidentiality of communications under Article 36 § 1 of the Constitution. 8.2. The Constitutional Court reiterates that the guarantees of personal rights can be restricted only in order to achieve an aim provided for by law which is also proportionate to the necessity of such restriction and that this should be decided by a court (see, mutatis mutandis, decision no. U-III-4286/2007 of 26 December 2007). Pursuant to the Code of Criminal Procedure, the impugned [secret surveillance] order should have contained (a) a valid assessment of the ‘ probable cause to believe that the appellant, acting either alone or jointly with others, has committed ’ one of the offences proscribed under Article 181 of the Code of Criminal Procedure, and (b) an assessment that the investigation ‘ cannot be conducted by other means or would be extremely difficult ’. Only such a statement of reasons guarantees that the existence of a ‘ probable cause to believe ’ that an offence proscribed under the law has been committed will precede the use of secret surveillance measures, that a minimum degree of probability exists that an actual – and not some possible – offence has been committed, and that the use of State powers will be logical and convincing and subsequently challengeable during the proceedings before the competent courts. 8.3. Where the secret surveillance order has not been justified in that way, it breaches the Code of Criminal Procedure. ... 9. However, the appellant failed to raise that complaint during the trial or in his appeal against the first-instance judgment (see paragraphs 2 and 5 above) and raised it for the first time in his constitutional complaint. Moreover, he did not use other remedies provided for in the Code of Criminal Procedure by which an accused can challenge evidence admitted in the case. ... 10. The Constitutional Court therefore finds that the appellant has failed to exhaust the relevant remedies ... ” 58. The Supreme Court, in its decision no. I-Kž-61/09-3 of 3 February 2009, set out the relevant principles concerning the use of evidence allegedly unlawfully obtained by the use of secret surveillance measures in criminal proceedings, in the following terms: “It is to be noted that the question of the use of evidence obtained by special investigative measures in criminal proceedings is regulated under Article 182 § 6 of the Code of Criminal Procedure. This provision expressly excludes the use of such evidence obtained contrary to Articles 180 and 182 § 2 of the Code of Criminal Procedure. The submissions of the accused in support of their request for the exclusion of unlawfully obtained evidence on the grounds that the orders issued by the investigating judge (save for the one of 8 March 2008) contained no reasons and was thus ex lege unlawful evidence is not correct. Specifically, an order (just like judgments and decisions) is an act of the court and in principle (unlike judgments and decisions) contains no reasons. The duty to state reasons in court orders is exceptional where search orders and orders for the use of special investigative measures limiting constitutional rights and freedoms are concerned. The requirement for the court to give reasoned orders for the use of special investigative measures limiting constitutional rights and freedoms flows from the requirement contained in Article 182 § 1 of the Code of Criminal Procedure. The lawmaker did not, however, seek to sanction conduct of the courts contrary to Article 182 § 1 of the Code of Criminal Procedure ..., Article 182 § 6 of the Code of Criminal Procedure provides that “the results [of the use of special investigative measures] cannot be used in criminal proceedings”. It follows that the lack of reasons for the orders concerning the use of special investigative measures limiting constitutional rights and freedoms does not render the evidence thus obtained unlawful. This also follows from the wording of the part of Article 9 § 2 of the Code of Criminal Procedure which provides that unlawfully obtained evidence is evidence obtained in breach of the law on criminal procedure where such unlawfulness is expressly envisaged under a legal provision, which is not the case regarding conduct contrary to Article 182 § 1 of the Code of Criminal Procedure. With regard to conduct contrary to Article 180 of the Code of Criminal Procedure, which would provide grounds for a conclusion of unlawfulness of evidence, it is to be noted that this provision is multi-layered. Without doubt, evidence is ex lege unlawfully obtained if it is the result of the use of special investigative measures limiting constitutional rights and freedoms which have not been ordered by the court based on a request by the State Attorney; if the measures do not relate to an individual concerning one of the offences under Article 181 of the Code of Criminal Procedure; or if a measure other than those provided for by law is ordered. A further condition, referred to in the decision of the Constitutional Court [ no. U-III-857/2008 of 1 October 2008; see paragraph 57 above] invoked by the appellants is the requirement that the general conditions for the use of such orders have been met, namely, the existence of probable cause to believe that an individual has committed one of the offences listed under the law, with regard to which the order is issued, and that the investigation cannot be carried out by other means or that it would be extremely difficult. It goes without saying that the investigating judge, when ruling on the request of the State Attorney, must take these general conditions into account. However, since the lack of reasons does not render the evidence obtained unlawful ex lege, the mere fact that an order has been issued based on a request by the State Attorney indicates that the general conditions have been met. However, if the investigating judge disagrees with the request to issue an order for the use of special investigative measures, and finds that the general conditions have not been met, he or she will request the panel under Article 20 § 2 of the Code of Criminal Procedure to rule on the matter, ... Of course, a citizen whose constitutional rights and freedoms are thus limited, which is possible under Article 16 of the Constitution only in accordance with the law and in order to protect the rights and freedoms of others or the legal order, public morals or health, must be able to verify whether the legal conditions, including the general ones, for such limitation have been met, in order to protect his or her constitutional rights from unjustified infringement by the executive, and possibly judicial, authorities. It is therefore understandable that the accused are now challenging the lawfulness of the orders from the perspective of the general conditions for their use, which is certainly relevant for the question of the lawfulness of the evidence thus obtained. ... Furthermore, in order that the court may issue an order for the use of special investigative measures, the request for their use must contain a statement of reasons to the effect that the investigation cannot be conducted by means other than interfering with the constitutional rights and freedoms, or that this would be extremely difficult. The very fact that the order has been issued, ..., even if, contrary to the law, it does not contain reasons, in itself implies acceptance of the arguments contained in the reasons for the request [for the use of special investigative measures]. However, fully accepting the rights of citizens to question the existence of the general conditions for issuing an order, the court being requested to exclude from the case file evidence obtained by such contested orders for the use of special investigative measures is obliged, where no reasons are stated in the order contrary to Article 182 § 1 of the Code of Criminal Procedure, to provide specific reasons with regard to the relevant questions. That court ... must carefully analyse the content of the request of the State attorney [for the use of special investigative measures] and other accompanying material and decide whether it can conclude from the request that, at the relevant time, there existed a suspicion that an individual had committed one of the offences listed under the law, and why it considers that obtaining the evidence by the use of measures interfering with the constitutional rights of citizens is necessary ... These answers, contrary to the appeal submissions, can be given when ruling on the lawfulness of the orders issued [for the use special investigative measures] given that the orders, contrary to Article 182 § 1 of the Code of Criminal Procedure, do not contain a statement of reasons, and that the lawmaker, having regard to the provisions of Article 282 § 6 of the Code of Criminal Procedure, did not sanction it by unlawfulness of evidence obtained by the use of such defective orders. The purpose of the provision concerning unlawful evidence is not to exclude evidence in favour of persons in respect of whom there is a reasonable suspicion that they have committed an offence, but to protect citizens who are presumed innocent (until proven guilty ) from illegal actions by the judicial and executive authorities where such actions are illegal to such an extent that the lawmaker expressly categorised the results as unlawfully obtained evidence.” 59. More recently, in its decision no. I-Kž-437/13-4 of 21 August 2013, the Supreme Court interpreted the requirements of Article 180 § 1 of the Code of Criminal Procedure in the following manner: “The statement of reasons of the impugned decision states that all orders authorising or extending secret surveillance measures ... contain the opinion that there is a probable cause to believe that the offence has been committed and that the investigation cannot be conducted by other means or would be extremely difficult. Such a statement, without specifying the circumstances which indicate that there is probable cause to believe [that an offence has been committed] and a mere [statutory] statement that the investigation cannot be conducted by other means and that it would be extremely difficult, without giving reasons in the decision, make the decision incomprehensible and contradictory ... Moreover, the impugned decision lacks relevant and sufficient reasons regarding a probable cause to believe that the accused has committed an offence proscribed under Article 181 of the Code of Criminal Procedure. It is also necessary to state the reason why the investigation cannot be conducted or would be extremely difficult to conduct by other means, as provided by Article 180 § 1 of the Code of Criminal Procedure.” 60. The Constitutional Court, in its decision no. U-III-2781/2010 of 9 January 2014, accepted the position of the Supreme Court in decision no. I-Kž-61/09-3 of 3 February 2009 (see paragraph 58 above), noting that : “The impugned orders, pursuant to the relevant provisions of the Code of Criminal Procedure, should have contained: (a) a valid assessment of the ‘ probable cause to believe that (the appellant) alone or jointly with others participated ’ in one of the offences listed under Article 181 of the Code of Criminal Procedure: and (b) an assessment that an investigation in respect of the offences ‘ by other means would either not be possible or would be extremely difficult”. The Constitutional Court has assessed the relevant part of the judgment of the Supreme Court and finds that the Supreme Court correctly applied the relevant provisions of the Code of Criminal Procedure by holding that, if the orders for the use of special investigative measures do not contain reasons, they can, under certain conditions, be reasoned in the first-instance judgment or the decision concerning the request for the exclusion of unlawfully obtained evidence.” 61. In several decisions, nos. U-III-535/1996, U -III-1781/2004, U-III-4879/2012 and U-III-2745/2013, the Constitutional Court declared inadmissible constitutional complaints against the dismissal of objections against indictments on the grounds that those were not individual acts against which a constitutional complaint could be lodged. Similarly, in cases nos. U-III-2716/2012, U-III-2783/2012, U-III-423/ 2013 and U-III-1317/2014 the Constitutional Court held that a constitutional complaint could not be lodged against a decision confirming the indictment. It also held, in cases nos. U-III-621/2005 and U-III-4921/2013, that a constitutional complaint could not be lodged directly against an indictment. III. RELEVANT INTERNATIONAL MATERIAL 62. The relevant part of the Recommendation Rec(2005)10 of the Committee of Ministers to member States on “special investigative techniques” in relation to serious crimes including acts of terrorism of 10 April 2005 reads: “Chapter I – Definitions and scope For the purpose of this Recommendation, “special investigation techniques” means techniques applied by the competent authorities in the context of criminal investigations for the purpose of detecting and investigating serious crimes and suspects, aiming at gathering information in such a way as not to alert the target persons. For the purpose of this Recommendation, “competent authorities” means judicial, prosecuting and investigating authorities involved in deciding, supervising or using special investigation techniques in accordance with national legislation. Chapter II – Use of special investigation techniques at national level a. General principles 1. Member states should, in accordance with the requirements of the European Convention on Human Rights (ETS No. 5), define in their national legislation the circumstances in which, and the conditions under which, the competent authorities are empowered to resort to the use of special investigation techniques. 2. Member states should take appropriate legislative measures to allow, in accordance with paragraph 1, the use of special investigation techniques with a view to making them available to their competent authorities to the extent that this is necessary in a democratic society and is considered appropriate for efficient criminal investigation and prosecution. 3. Member states should take appropriate legislative measures to ensure adequate control of the implementation of special investigation techniques by judicial authorities or other independent bodies through prior authorisation, supervision during the investigation or ex post facto review. b. Conditions of use 4. Special investigation techniques should only be used where there is sufficient reason to believe that a serious crime has been committed or prepared, or is being prepared, by one or more particular persons or an as-yet-unidentified individual or group of individuals. 5. Proportionality between the effects of the use of special investigation techniques and the objective that has been identified should be ensured. In this respect, when deciding on their use, an evaluation in the light of the seriousness of the offence and taking account of the intrusive nature of the specific special investigation technique used should be made. 6. Member states should ensure that competent authorities apply less intrusive investigation methods than special investigation techniques if such methods enable the offence to be detected, prevented or prosecuted with adequate effectiveness. 7. Member states should, in principle, take appropriate legislative measures to permit the production of evidence gained from the use of special investigation techniques before courts. Procedural rules governing the production and admissibility of such evidence shall safeguard the rights of the accused to a fair trial. ” 63. Article 23 of the Council of Europe ’ s Criminal Law Convention on Corruption (ETS no. 173, 27 January 1999) provides that each party is to adopt such legislative and other measures as may be necessary, including those permitting the use of special investigative techniques, to enable it to facilitate the gathering of evidence in this sphere. The explanatory report on the Convention further specifies that “special investigative techniques” may include the use of undercover agents, wiretapping, interception of telecommunications and access to computer systems. Article 35 states that the Convention does not affect the rights and undertakings deriving from international multilateral conventions concerning special matters. 64. Article 4 of the Council of Europe ’ s Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (ETS no. 141, 8 November 1990) provides that each party should consider adopting such legislative and other measures as may be necessary to enable it to use special investigative techniques facilitating the identification and tracing of proceeds and the gathering of evidence related thereto. 65. The use of special investigative techniques, such as controlled deliveries in the context of illicit trafficking in narcotic drugs, is also provided for in Article 73 of the Convention implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at the common borders, signed in Schengen on 19 June 1990. 66. The use of special investigative techniques, including electronic or other forms of surveillance and undercover operations, is also envisaged in Article 20 of the United Nations Convention against Transnational Organized Crime ( A/RES/55/25 ) of 8 January 2001. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 67. The applicant complained that the secret surveillance of his telephone conversations had been in violation of the guarantees of Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 1. The parties ’ submissions 68. The Government pointed out that the applicant had been under secret surveillance between 23 March and 7 August 2007 and subsequently from 17 September 2007, and that he had learnt this when the indictment had been lodged on 10 March 2009. Accordingly, in the Government ’ s view, the six-month time-limit had started running from that time and there had been no reason for the applicant to wait for the outcome of the criminal proceedings. Furthermore, the Government pointed out that in his constitutional complaint the applicant had not expressly relied on the provisions of Article 8 of the Convention and Article 35 of the Constitution. He had only complained about the alleged unlawfulness of the secret surveillance orders and the use of their results in the criminal proceedings against him. 69. The applicant stressed that throughout the criminal proceedings at the domestic level he had argued before all levels of domestic jurisdiction that his secret surveillance had been unlawful. That had been the only way of allowing him to raise the complaint before the Constitutional Court. Thus, by complaining in substance of a violation of his rights guaranteed under Article 8 of the Convention before the Constitutional Court, and by waiting for a decision of that court, he had properly exhausted the domestic remedies and brought his complaint before the Court within the six-month time-limit. 2. The Court ’ s assessment 70. The Court reiterates that the requirements contained in Article 35 § 1 concerning the exhaustion of domestic remedies and the six-month period are closely interrelated, since not only are they combined in the same Article, but they are also expressed in a single sentence whose grammatical construction implies such a correlation (see Hatjianastasiou v. Greece, no. 12945/87, Commission decision of 4 April 1990, and Berdzenishvili v. Russia ( dec. ), no. 31697/03, ECHR 2004 ‑ II (extracts) ). 71. As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Article 35 § 1 cannot be interpreted in a manner which would require an applicant to inform the Court of his complaint before his position in connection with the matter has been finally settled at the domestic level. In this regard, the Court has already held that in order to comply with the principle of subsidiarity, before bringing complaints against Croatia to the Court applicants are in principle required to afford the Croatian Constitutional Court the opportunity to remedy their situation (see Orlić v. Croatia, no. 48833/07, § 46, 21 June 2011; Čamovski v. Croatia, no. 38280/10, § 27, 23 October 2012; Bajić v. Croatia, no. 41108/10, § 66, 13 November 2012; Remetin v. Croatia, no. 29525/10, § 81, 11 December 2012; Tarbuk v. Croatia, no. 31360/10, § 29, 11 December 2012; Damjanac v. Croatia, no. 52943/10, § 70, 24 October 2013; and Šimecki v. Croatia, no. 15253/10, § 29, 30 April 2014). 72. The Court notes that the use of secret surveillance measures giving rise to the case in issue was ordered in the context of the criminal investigation which eventually led to the applicant ’ s criminal prosecution in the competent courts. Throughout the criminal proceedings before the competent courts the applicant argued that his secret surveillance had been contrary to the relevant domestic law (see paragraphs 35, 42 and 47 above) and he raised the same complaint before the Constitutional Court in his constitutional complaint against the final judgment of the criminal courts (see paragraph 49 above). Indeed, the Court notes, given the Constitutional Court ’ s practice of declaring any constitutional complaint against an indictment inadmissible (see paragraph 61 above), that it was the only way for the applicant to bring his complaints about the alleged unlawful use of secret surveillance before the Constitutional Court, as required under the Court ’ s case-law (see paragraph 71 above; and Blaj v. Romania, no. 36259/04, § 118, 8 April 2014). The Court cannot therefore accept the Government ’ s argument that the six-month time-limit started running from the moment when the applicant learned that the indictment had been lodged. 73. Furthermore, the Court considers that the applicant, having raised the issue in substance in his constitutional complaint, did raise before the domestic courts the complaint which he has submitted to the Court (see, by contrast, Mađer v. Croatia, no. 56185/07, § 137, 21 June 2011, and Merot d.o.o. and Storitve Tir d.o.o. v. Croatia ( dec. ), nos. 29426/08 and 29737/08, §§ 35 and 36 10 December 2013 ). The applicant thereby provided the national authorities with the opportunity which is in principle intended to be afforded to Contracting States by Article 35 § 1 of the Convention, namely of putting right the violations alleged against them (see Lelas, cited above, § 51; Gäfgen v. Germany [GC], no. 22978/05, §§ 144-46, ECHR 2010; Karapanagiotou and Others v. Greece, no. 1571/08, § 29, 28 October 2010; Bjedov v. Croatia, no. 42150/09, § 48, 29 May 2012; and Tarbuk v. Croatia, no. 31360/10, § 32, 11 December 2012). The Court also notes that the decision of the Constitutional Court was served on the applicant ’ s representative on 13 June 2011 (see paragraph 51 above) and that the applicant lodged his complaint with the Court on 20 October 2011. 74. Against the above background, the Court rejects the Government ’ s objection. 75. The Court also notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 76. The applicant contended that his secret surveillance had been unlawful because it had been based on orders of the investigating judge issued contrary to the relevant domestic law and the case-law of the higher domestic courts. Those orders of the investigating judge had contained no assessment of the likelihood that an offence had been committed and that the investigation into that offence could not be conducted by other, less intrusive, means. At the same time the relevant domestic law provided for judicial control of secret surveillance measures and required the judicial authority to examine the reasons put forward by the prosecuting authorities before issuing the secret surveillance orders. The statutory requirement for a reasoned order was necessary as a form of effective judicial control of measures interfering with the fundamental rights of an individual. 77. The Government accepted that there had been interference with the applicant ’ s rights under Article 8 of the Convention. However, they considered that such interference had been justified. In particular, the secret surveillance orders had been based on Article 180 of the Code of Criminal Procedure and had been issued and supervised by an investigating judge pursuant to reasoned and substantiated requests from the OSCOC which the investigating judge had accepted as such. Moreover, such interference had pursued the legitimate aim of investigating and prosecuting crime and had been proportionate to the circumstances and gravity of the offence at issue. 2. The Court ’ s assessment (a) General principles 78. The Court reiterates that telephone conversations are covered by the notions of “private life” and “correspondence” within the meaning of Article 8. Their monitoring amounts to an interference with the exercise of one ’ s rights under Article 8 (see Malone v. the United Kingdom, 2 August 1984, § 64, Series A no. 82). 79. Such an interference is justified by the terms of paragraph 2 of Article 8 only if it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is “necessary in a democratic society” in order to achieve the aim or aims (see, amongst many others, Kvasnica v. Slovakia, no. 72094/01, § 77, 9 June 2009). 80. The expression “in accordance with the law” under Article 8 § 2 in general requires, first, that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be compatible with the rule of law and accessible to the person concerned, who must, moreover, be able to foresee its consequences for him, and compatible with the rule of law (see, for example, Kruslin v. France, 24 April 1990, § 27, Series A no. 176 ‑ A). 81. In particular, in the context of secret measures of surveillance as the interception of communications, the requirement of legal “foreseeability” cannot mean that an individual should be able to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly. However, where a power of the executive is exercised in secret the risks of arbitrariness are evident. Thus, the domestic law must be sufficiently clear in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures (see, for example, Malone, cited above, § 67; Huvig v. France, 24 April 1990, § 29, Series A no. 176 ‑ B; Valenzuela Contreras v. Spain, 30 July 1998, § 46, Reports of Judgments and Decisions 1998 ‑ V; Weber and Saravia v. Germany ( dec. ), no. 54934/00, § 93, ECHR 2006 XI; and Bykov v. Russia [GC], no. 4378/02, § 76, 10 March 2009). 82. The Court has also stressed the need for safeguards in this connection (see Kvasnica, cited above, § 79 ). In particular, since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive or to a judge to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference (see Bykov, cited above, § 78, and Blaj, cited above, § 128 ). 83. Furthermore, in view of the risk that a system of secret surveillance for the protection of national security may undermine or even destroy democracy under the cloak of defending it, the Court must be satisfied that there exist guarantees against abuse which are adequate and effective. This assessment depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to permit, carry out and supervise them, and the kind of remedy provided by the national law (see Klass and Others v. Germany, 6 September 1978, § 50, Series A no. 28; Weber and Saravia, cited above, § 106; Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00, § 77, 28 June 2007; and Kennedy v. the United Kingdom, no. 26839/05, § 153, 18 May 2010 ). 84. This in particular bears significance as to the question whether an interference was “necessary in a democratic society” in pursuit of a legitimate aim, since the Court has held that powers to instruct secret surveillance of citizens are only tolerated under Article 8 to the extent that they are strictly necessary for safeguarding democratic institutions (see Kennedy, cited above, § 153). In assessing the existence and extent of such necessity the Contracting States enjoy a certain margin of appreciation but this margin is subject to European supervision. The Court has to determine whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the “interference” to what is “necessary in a democratic society”. In addition, the values of a democratic society must be followed as faithfully as possible in the supervisory procedures if the bounds of necessity, within the meaning of Article 8 § 2, are not to be exceeded (see Kvasnica, cited above, § 80; and Kennedy, cited above, § 154). (b) Application of these principles to the present case ( i ) Whether there was an interference 85. The Court notes that it is not in dispute between the parties that by tapping the applicant ’ s telephone and covertly monitoring him there was an interference with his right to respect for “private life” and “correspondence”, guaranteed under Article 8 of the Convention. The Court sees no reason to hold otherwise (see, for example, Malone, cited above, § 54; Khan v. the United Kingdom, no. 35394/97, § 25, ECHR 2000 ‑ V; and Drakšas v. Lithuania, no. 36662/04, §§ 52-53, 31 July 2012). (ii) Whether the interference was justified 86. The Court observes that in the instant case the applicant did not complain in general about the existence of legislation allowing measures of covert surveillance. The basis of his complaint was a specific instance of such surveillance which took place in connection with criminal proceedings against him. As the Court must first ascertain whether the interference complained of was “in accordance with the law”, it must inevitably assess the relevant domestic law in force at the time in relation to the requirements of the fundamental principle of the rule of law. Such a review necessarily entails some degree of abstraction (see Kruslin, cited above, § 32). Nevertheless, in cases arising from individual applications, the Court must as a rule focus its attention not on the law as such but on the manner in which it was applied to the applicant in the particular circumstances (see Goranova-Karaeneva v. Bulgaria, no. 12739/05, § 48, 8 March 2011). 87. In this connection the Court notes that the applicant was subjected to the measures of secret surveillance on the basis of Article 180 § 1 (1) of the Code of Criminal Procedure (see paragraph 55 above). It follows that the applicant ’ s covert surveillance had a basis in the relevant domestic law, the accessibility of which does not raise any problem in the instant case (see Kruslin, cited above, §§ 29-30) 88. The applicant ’ s complaints are primarily focused not on the lack of legal basis in the relevant domestic law but on the failure of the investigating judge to comply with the procedures envisaged by law, in particular those related to an effective assessment as to whether the use of secret surveillance was necessary and justified in the particular case, as required under Article 182 § 1 of the Code of Criminal Procedure (see paragraphs 55 and 70 above). 89. Thus the central question for the Court to determine is whether the relevant domestic law, including the way in which it was interpreted by the domestic courts, indicated with reasonable clarity the scope and manner of exercise of the discretion conferred on the public authorities, and in particular whether the domestic system of secret surveillance, as applied by the domestic authorities, afforded adequate safeguards against various possible abuses (compare Malone, cited above, § 70; Kruslin, cited above, §§ 35-36; Huvig, cited above, §§ 34-35; and Kopp v. Switzerland, 25 March 1998, §§ 66-75, Reports of Judgments and Decisions 1998 ‑ II ). Since the existence of adequate safeguards against abuse is a matter closely related to the question whether the “necessity” test was complied with in this case, the Court will address both the requirement that the interference be “in accordance with the law” and that it be “necessary ” (see Kvasnica, cited above, §§ 83-84). 90. The Court notes that, on the face of it, the relevant domestic law clearly provides that for any secret surveillance measures in the context of criminal proceedings to be lawful, they must be ordered by an investigating judge upon a request by the State Attorney (see paragraph 55 above; Article 182 of the Code of Criminal Procedure). The statutory preconditions for issuing a secret surveillance order are the existence of a probable cause to believe that an individual alone, or jointly with others, has committed one of the offences proscribed by law (see paragraph 55 above; Article 181 of the Code of Criminal Procedure), and that an investigation in respect of the offences in issue is either not possible or would be extremely difficult (see paragraph 55 above; Article 180 § 1 of the Code of Criminal Procedure). 91. The domestic law also expressly provides that the investigating judge ’ s order authorising the use of secret surveillance must be in written form and must contain a statement of reasons specifying: information concerning the person in respect of whom the measures are carried out, relevant circumstances justifying the need for secret surveillance measures, the time-limits in which the measures can be carried out – which must be proportionate to the legitimate aim pursued – and the scope of the measures (see paragraph 55 above; Article 182 § 1 of the Code of Criminal Procedure). 92. The domestic law thereby provides for prior authorisation of the use of secret surveillance measures which must be sufficiently thorough and capable of demonstrating that the statutory conditions for the use of secret surveillance have been met and that the use of such measures is necessary and proportionate in the given circumstances. Strictly speaking, every individual under the jurisdiction of the Croatian authorities, when relying on these provisions of the relevant domestic law, should be confident that the powers of secret surveillance will be subjected to prior judicial scrutiny and carried out only on the basis of a detailed judicial order properly stipulating the necessity and proportionality of any such measure. 93. The importance of the prior judicial scrutiny and reasoning of the secret surveillance orders was emphasised in the decision of the Constitutional Court no. U-III-857/2008 of 1 October 2008. In particular, it explained that only a detailed statement of reasons in the secret surveillance orders “guarantees that the existence of a ‘ probable cause to believe ’ that an offence proscribed under the law has been committed will precede the use of secret surveillance measures, that a minimum degree of probability exists that an actual – and not some possible – offence has been committed, and that the use of State powers will be logical and convincing and subsequently challengeable during the proceedings before the competent courts”. In the absence of this, according to the Constitutional Court, a secret surveillance order will breach the Code of Criminal Procedure (see paragraph 57 above). 94. In this connection the Court has also emphasised that verification by the authority empowered to authorise the use of secret surveillance, inter alia, that the use of such measures is confined to cases in which there are factual grounds for suspecting a person of planning, committing or having committed certain serious criminal acts and that the measures can only be ordered if there is no prospect of successfully establishing the facts by another method or this would be considerably more difficult, constitutes a guarantee of an appropriate procedure designed to ensure that measures are not ordered haphazardly, irregularly or without due and proper consideration (see Klass and Others, cited above, § 51). It is therefore important that the authorising authority – the investigating judge in the instant case – determines whether there is compelling justification for authorising measures of secret surveillance (compare Iordachi and Others v. Moldova, no. 25198/02, § 51, 10 February 2009 ). 95. In the instant case the four secret surveillance orders issued by the investigating judge of the Zagreb County Court in respect of the applicant were essentially based only on a statement referring to the existence of the OSCOC ’ s request for the use of secret surveillance and the statutory phrase that “ the investigation could not be conducted by other means or that it would be extremely difficult ” (see paragraphs 9, 11, 13 and 17 above). No actual details were provided based on the specific facts of the case and particular circumstances indicating a probable cause to believe that the offences had been committed and that the investigation could not be conducted by other, less intrusive, means. 96. Although that apparently conflicted with the requirements of the relevant domestic law and the above-cited case-law of the Constitutional Court (see paragraphs 5 5 and 93 above), it appears to have been approved through the practice of the Supreme Court and later endorsed by the Constitutional Court. In particular, the Supreme Court held, dealing with the matter in the context of the admissibility of evidence, which is a different matter under the Convention (see paragraph 99 below), that a lack of reasons in the secret surveillance orders, contrary to Article 182 § 1 of the Code of Criminal Procedure, could be compensated by retrospective specific reasons with regard to the relevant questions at a later stage of the proceedings by the court being requested to exclude the evidence thus obtained from the case file (see paragraph 58 above). This appears to be accepted by the Constitutional Court, which, in its decision no. U-III-2781/2010 of 9 January 2014, held that if the secret surveillance orders did not contain reasons, under certain conditions reasons could be stated in the first-instance judgment or the decision concerning the request for exclusion of unlawfully obtained evidence (see paragraph 60 above). 97. It follows from the foregoing that whereas the Code of Criminal Procedure expressly envisaged prior judicial scrutiny and detailed reasons when authorising secret surveillance orders, in order for such measures to be put in place, the national courts introduced the possibility of retrospective justification of their use, even where the statutory requirement of prior judicial scrutiny and detailed reasons in the authorisation was not complied with. In an area as sensitive as the use of secret surveillance, which is tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions, the Court has difficulty in accepting this situation created by the national courts. It suggests that the practice in the administration of law, which is in itself not sufficiently clear given the two contradictory positions adopted by both the Constitutional Court and the Supreme Court (see paragraphs 93 and 96, and 57-61 above), conflicts with the clear wording of the legislation limiting the exercise of the discretion conferred on the public authorities in the use of covert surveillance (compare Kopp, cited above, § 73; and Kvasnica, cited above, § 87). 98. Moreover, the Court considers that in a situation where the legislature envisaged prior detailed judicial scrutiny of the proportionality of the use of secret surveillance measures, a circumvention of this requirement by retrospective justification, introduced by the courts, can hardly provide adequate and sufficient safeguards against potential abuse since it opens the door to arbitrariness by allowing the implementation of secret surveillance contrary to the procedure envisaged by the relevant law. 99. This is particularly true in cases where the only effective possibility for an individual subjected to covert surveillance in the context of criminal proceedings is to challenge the lawfulness of the use of such measures before the criminal courts during the criminal proceedings against him or her (see paragraph 72 above). The Court has already held that although the courts could, in the criminal proceedings, consider questions of the fairness of admitting the evidence in the criminal proceedings, it was not open to them to deal with the substance of the Convention complaint that the interference with the applicant ’ s right to respect for his private life was not “in accordance with the law”; still less was it open to them to grant appropriate relief in connection with the complaint (see Khan, cited above, § 44; P.G. and J.H. v. the United Kingdom, no. 44787/98, § 86, ECHR 2001 ‑ IX; and Goranova-Karaeneva, cited above, § 59). 100. This can accordingly be observed in the present case, where the competent criminal courts limited their assessment of the use of secret surveillance to the extent relevant to the admissibility of the evidence thus obtained, without going into the substance of the Convention requirements concerning the allegations of arbitrary interference with the applicant ’ s Article 8 rights (see paragraphs 46 and 48 above). At the same time, the Government have not provided any information on remedies – such as an application for a declaratory judgment or an action for damages – which may become available to a person in the applicant ’ s situation (see Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 102). 101. Against the above background, the Court finds that the relevant domestic law, as interpreted and applied by the competent courts, did not provide reasonable clarity regarding the scope and manner of exercise of the discretion conferred on the public authorities, and in particular did not secure in practice adequate safeguards against various possible abuses. Accordingly, the procedure for ordering and supervising the implementation of the interception of the applicant ’ s telephone was not shown to have fully complied with the requirements of lawfulness, nor was it adequate to keep the interference with the applicant ’ s right to respect for his private life and correspondence to what was “necessary in a democratic society”. 102. There has therefore been a violation of Article 8 of the Convention. II. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION 103. The applicant complained of the lack of impartiality of the trial bench and the use of evidence obtained by secret surveillance in the criminal proceedings against him. He relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Alleged lack of impartiality of the trial bench 1. Admissibility (a) The parties ’ submissions 104. The Government submitted that during the proceedings the applicant had never complained about the composition of the trial bench nor had he ever requested that Judge Z. Č. be disqualified from sitting in the case. Moreover, he had not alleged a lack of impartiality of the trial bench in his appeal but only in the constitutional complaint. Thus, in the Government ’ s view, it could not be said that the alleged lack of impartiality of Judge Z.Č. had affected the applicant ’ s right to a fair trial. 105. The applicant pointed out that, in view of the Supreme Court ’ s decision dismissing the request of the President of the Dubrovnik County Court for the proceedings to be transferred to another court on account of the previous involvement of the judges of that court in the case (see paragraph 40 above), any possibility of complaining about the trial bench ’ s lack of impartiality had been purely theoretical and would not have yielded any result in practice. (b) The Court ’ s assessment 106. The Court notes that after Judge Z. Č. had expressed his concerns about an appearance of his impartiality in the applicant ’ s case to the President of the Dubrovnik County Court and asked to withdraw from the case (see paragraph 38 above), the latter requested permission from the Supreme Court to have the proceedings transferred to another court since all the judges of the Dubrovnik County Court had already been involved in the applicant ’ s case at earlier stages of the proceedings (see paragraph 39 above). However, the Supreme Court dismissed that request as it did not see any reason to doubt the impartiality of the Dubrovnik County Court judges. 107. In such circumstances any other complaint by the applicant about the composition of the trial bench or a lack of impartiality of the Dubrovnik County Court judges would have been theoretical and illusory, whereas the Convention is intended to guarantee rights which are practical and effective (see, amongst many other authorities, Erkapić v. Croatia, no. 51198/08, § 78, 25 April 2013 ). 108. The Court therefore rejects the Government ’ s objection. It also notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits (a) The parties ’ submissions 109. The applicant pointed out that during the proceedings the president of the trial bench, Judge Z. Č ., had, of his own motion, expressed concerns about the appearance of his impartiality as he had previously taken part in the proceedings extending the applicant ’ s pre-trial detention. Referring to the case-law of the Court and the relevant domestic practices, he had submitted that there were ascertainable facts raising doubts as to his impartiality. In the applicant ’ s view, this meant that the judge had lacked impartiality in terms of the subjective aspect of the Court ’ s relevant test and, in any event, that the trial bench had lacked objective impartiality as this had been sufficient evidence to raise legitimate doubts as to the lack of Judge Z. Č. ’ s impartiality. Moreover, the President of the Dubrovnik County Court had shared the concerns expressed by Judge Z. Č. and had therefore requested the Supreme Court to transfer the proceedings to another court, but the Supreme Court had dismissed that request. 110. The Government submitted that the applicant had failed to rebut the presumption of Judge Z.Č. ’ s impartiality in terms of the subjective aspect of the Court ’ s relevant test as the judge had never expressed any personal bias or prejudice in the applicant ’ s case. As to the objective test of impartiality, the Government considered that the mere participation of a judge at previous stages of the proceedings could not in itself raise any doubts as to his or her lack of impartiality. It was true that during the proceedings Judge Z. Č. had asked to withdraw from the case, but he had merely relied on his interpretation of the relevant domestic requirements without providing concrete grounds for the possible appearance of a lack of impartiality on his part. The final decision concerning his request had been given by the Supreme Court, which had examined the request for transfer of the proceedings to another court submitted by the President of the Dubrovnik County Court. The Supreme Court had explained that the fact that a judge had ordered pre-trial detention could not affect his or her impartiality as such a decision did not concern the same issues that the judge had to decide when examining the case on the merits. In the Government ’ s view, this interpretation had followed the relevant practice of the Court and the Constitutional Court. The applicant had thus misconstrued the request of Judge Z. Č. to withdraw from the case as that request had merely referred to the relevant practice on the matter and not any concrete circumstances of the case. (b) The Court ’ s assessment ( i ) General principles 111. The Court reiterates that Article 6 § 1 of the Convention requires a court to be impartial. Impartiality denotes the absence of prejudice or bias. According to the Court ’ s case-law, there are two tests for assessing whether a tribunal is impartial within the meaning of Article 6 § 1. The first test (subjective) consists in seeking to determine the personal conviction of a particular judge in a given case. The personal impartiality of a judge must be presumed until there is proof to the contrary. As to the second test (objective), it means determining whether, quite apart from the personal conduct of a judge, there are ascertainable facts which may raise doubts as to his/her impartiality (see, for example, Padovani v. Italy, 26 February 1993, § 26, Series A no. 257 ‑ B; Gautrin and Others v. France, 20 May 1998, § 58, Reports 1998 ‑ III ). 112. The Court notes that in the vast majority of cases raising impartiality issues it has focused on the objective test. However, there is no watertight division between subjective and objective impartiality since the conduct of a judge may not only prompt objectively held misgivings as to impartiality from the point of view of the external observer (objective test) but may also go to the issue of his or her personal conviction (subjective test) (see Kyprianou v. Cyprus [GC], no. 73797/01, § 119, ECHR 2005 ‑ XIII). Thus, in some cases where it may be difficult to procure evidence with which to rebut the presumption of the judge ’ s subjective impartiality, the requirement of objective impartiality provides a further important guarantee (see Pullar v. the United Kingdom, 10 June 1996, § 32, Reports of Judgments and Decisions 1996 ‑ III). 113. The Court also emphasises that in this respect even appearances may be of a certain importance or, in other words, “justice must not only be done, it must also be seen to be done” (see De Cubber v. Belgium, 26 October 1984, § 26, Series A no. 86). What is at stake is the confidence which the courts in a democratic society must inspire in the public. Thus, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw (see Castillo Algar v. Spain, 28 October 1998, § 45, Reports of Judgments and Decisions 1998 ‑ VIII; and Micallef v. Malta [GC], no. 17056/06, § 98, ECHR 2009). 114. In cases where a judge presiding over the trial has already dealt with the case at an earlier stage of the proceedings and has given various decisions in respect of the applicant at the pre-trial stage – including decisions on continued detention – the Court has observed that, in general, one of the roles of the trial judge is to manage the proceedings with a view to ensuring the proper administration of justice. It is perfectly normal that a judge may consider and dismiss an application for release lodged by a detained defendant. In doing so the judge is required, under both the Convention and the domestic law, to establish the existence of a “reasonable suspicion” against the defendant. The mere fact that a trial judge has already taken pre-trial decisions in the case, including decisions relating to detention, cannot in itself justify fears as to his impartiality; only special circumstances may warrant a different conclusion (see Hauschildt v. Denmark, 24 May 1989, § 51, Series A no. 154; Sainte-Marie v. France, no. 12981/87, § 32, 16 December 1992; and Romenskiy v. Russia, no. 22875/02, § 27, 13 June 2013). What matters is the extent and nature of the pre-trial measures taken by the judge (see Fey v. Austria, 24 February 1993, § 30, Series A no. 255 ‑ A). 115. Any misgivings which the accused may occasion in these instances are understandable but cannot in themselves be treated as objectively justified. Indeed, the questions which the judge has to answer when taking decisions on continuing detention are not the same as those which are decisive for his final judgment. When taking a decision on detention on remand and other pre-trial decisions of this kind the judge summarily assesses the available data in order to ascertain whether there are prima facie grounds for the suspicion against an accused of having committed an offence; when giving judgment at the conclusion of the trial he must assess whether the evidence that has been produced and debated in court suffices for finding the accused guilty. Suspicion and formal finding of guilt are not to be treated as being the same (see Jasiński v. Poland, no. 30865/96, § 55, 20 December 2005 ). (ii) Application of these principles to the present case 116. The Court notes that during the proceedings in the applicant ’ s case his pre-trial detention was extended four times by a three-judge panel of the Dubrovnik County Court in which Judge Z.Č., who later assumed responsibility for the applicant ’ s case as the president of the trial bench, took part as either the president or member of the panel (see paragraphs 24, 30, 32 and 41 above). The applicant ’ s detention was extended on the grounds of a risk of reoffending and the gravity of the charges. 117. The assessment of those grounds involved an analysis of all the relevant circumstances of the offence, the manner of its commission and the gravity of specific elements of the charges such as the necessary criminal resolve and engagement in the commission of the offence (see paragraphs 24 and 30 above). However, in the assessment, the judges referred only to the offence as “the subject matter of the charges”, which did not convey their conviction that the applicant had committed the offences in question and cannot be considered tantamount to a finding of guilt ( compare Jasiński, cited above, § 56, and, by contrast, Romenskiy, cited above, § 28). 118. Similarly, the Court does not consider that the reference to the particular circumstances of the charges, indicating the gravity of the offences and the applicant ’ s previous convictions, could be seen as going beyond what should be regarded as an objective and reasonable evaluation of the situation for the purposes of deciding the question of his pre-trial detention. These elements played a role in the assessment of the grounds for ordering pre-trial detention under the relevant domestic law and, as such, had to be reviewed by Judge Z.Č. from the point of view of justification for the applicant ’ s continued detention. However, they could not be seen as indicating any preconceived view of the applicant ’ s guilt or sentence which should be imposed on him (see Jasiński, cited above, § 56 ). 119. The Court therefore considers that the mere fact that Judge Z.Č. sat as a member of the three-judge panel of the Dubrovnik County Court which extended the applicant ’ s detention does not raise an issue of lack of impartiality under the Convention. 120. The Court notes, however, that during the proceedings, owing to his previous involvement in the case, Judge Z.Č., of his own motion, sought leave from the President of the Dubrovnik County Court to withdraw from the case as president of the trial bench (see paragraph 38 above). Leave was granted by the President of the Dubrovnik County Court, who, relying on the same grounds, asked the Supreme Court to transfer the proceedings to another court (see paragraph 39 above) because all the judges of the Criminal Division of that court had already taken part in the proceedings. However, leave was refused by the Supreme Court on the grounds that there were no reasons to doubt the impartiality of the Dubrovnik County Court judges. It explained that the mere fact that a judge had presided over the panels extending the applicant ’ s detention could not raise any issue of his impartiality since the questions to be decided when the detention was extended differed from those which the judge had to decide when examining the case on the merits (see paragraph 40 above). 121. Whereas this situation could have raised certain misgivings on the part of the applicant, the Court notes that, in his request, Judge Z.Č. did not refer to any specific reason for his withdrawal but requested leave to withdraw as a merely precautionary measure (see paragraph 38 above). Moreover, in dismissing the request the Supreme Court gave sufficient and relevant reasons for its decision, which were compatible with the Court ’ s case-law (see paragraph 120 above, and, by contrast, Rudnichenko v. Ukraine, no. 2775/07, § § 116- 18, 11 July 2013). 122. In view of the foregoing, the Court finds that the applicant ’ s misgivings about the impartiality of the judge presiding over his trial cannot be regarded as objectively justified. 123. There has accordingly been no violation of Article 6 § 1 of the Convention. B. Use of evidence obtained by secret surveillance in the proceedings 1. Admissibility 124. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits (a) The parties ’ submissions 125. The applicant contended that he had not had a fair trial because the trial bench had admitted in evidence the recordings unlawfully obtained by virtue of the secret surveillance orders and had based its decisions on that evidence. This had been contrary to the relevant rules on admissibility of evidence under the Code of Criminal Procedure which had rendered his trial unfair. 126. The Government submitted that during the proceedings the applicant had had every possibility to examine the recordings obtained by secret surveillance and to oppose their use as evidence. Indeed, he had challenged the lawfulness of such evidence and had asked that they be excluded from the case file. The domestic courts had dismissed his request and provided sufficient reasons for their decisions. (b) The Court ’ s assessment ( i ) General principles 127. The Court reiterates that its duty, according to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting States to the Convention. In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law (see, amongst many others, Schenk v. Switzerland, 12 July 1988, §§ 45-46, Series A no. 140; and Teixeira de Castro v. Portugal, 9 June 1998, § 34, Reports of Judgments and Decisions 1998 ‑ IV ). 128. It is not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, unlawfully obtained evidence – may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the “unlawfulness” in question and, where a violation of another Convention right is concerned, the nature of the violation found (see Allan v. the United Kingdom, no. 48539/99, § 42, ECHR 2002 ‑ IX ). 129. In determining whether the proceedings as a whole were fair, regard must also be had to whether the rights of the defence were respected. It must be examined in particular whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use. In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy. While no problem of fairness necessarily arises where the evidence obtained was unsupported by other material, it may be noted that where the evidence is very strong and there is no risk of its being unreliable, the need for supporting evidence is correspondingly weaker (see, amongst many others, Bykov, cited above, § 90). 130. As regards, in particular, the examination of the nature of the Convention violation found, the Court observes that in several cases it has found the use of covert listening devices to be in breach of Article 8 since such interference was not “in accordance with the law”. Nonetheless, the admission in evidence of information obtained thereby did not in the circumstances of a particular case conflict with the requirements of fairness guaranteed by Article 6 § 1 (see Khan, cited above, §§ 25-28; P.G. and J.H. v. the United Kingdom, no. 44787/98, §§ 37-38, ECHR 2001 ‑ IX; and Bykov, cited above, §§ 94-105). (ii) Application of these principles to the present case 131. The Court notes at the outset that the applicant did not put forward any argument disputing the reliability of the information obtained by secret surveillance measures but limited his objection exclusively to the formal use of such information as evidence during the proceedings (compare Khan, cited above, § 38; P.G. and J.H., cited above, § 79; and Bykov, cited above, § 95). 132. He also had an effective opportunity to challenge the authenticity of the evidence and oppose its use and used that opportunity during the proceedings before the first-instance court (see paragraphs 35 and 42 above), and in his appeal (see paragraph 47 above) and constitutional complaint (see paragraph 49 above). The domestic courts examined his arguments on the merits and provided reasons for their decisions (see paragraphs 46, 48 and 50 above). The fact that the applicant was unsuccessful at each step does not alter the fact that he had an effective opportunity to challenge the evidence and oppose its use (see Schenk, cited above, § 47, and Khan, cited above, § 38). 133. The Court further notes that the impugned evidence was not the only evidence on which the conviction was based (compare Schenk, cited above, § 48 ). When convicting the applicant the Dubrovnik County Court took into account the applicant ’ s statements and the statements of his co-accused and examined them against the statements of other witnesses and evidence obtained by numerous searches and seizures (see paragraph 45 above). 134. Against the above background, the Court considers that there is nothing to substantiate the conclusion that the applicant ’ s defence rights were not properly complied with in respect of the evidence adduced or that its evaluation by the domestic courts was arbitrary (see Bykov, cited above, § 98). In conclusion, the Court finds that the use of the impugned recordings in evidence did not as such deprive the applicant of a fair trial. 135. There has accordingly been no violation of Article 6 § 1 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 136. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 137. The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage. 138. The Government considered the applicant ’ s claim excessive, unfounded and unsubstantiated. 139. Having regard to all the circumstances of the present case, the Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 7 ,500 in respect of non-pecuniary damage, plus any tax that may be chargeable to him. B. Costs and expenses 140. The applicant also claimed 16,493.75 Croatian kunas for the costs and expenses incurred before the Court. 141. The Government considered the applicant ’ s claim unsubstantiated and unfounded. 142. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,160 plus any tax that may be chargeable, covering costs for the proceedings before the Court. C. Default interest 143. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 of the Convention. It found in particular that Croatian law, as interpreted by the national courts, did not provide reasonable clarity as to the authorities’ discretion in ordering surveillance measures and it did not in practice – as applied in the applicant’s case – provide sufficient safeguards against possible abuse. |
143 | Sexual abuse | RELEVANT LEGAL FRAMEWORK AND PRACTICE DOMESTIC LAW AND PRACTICEThe Criminal Code The Criminal Code The Criminal Code 115. The relevant provisions of the Criminal Code as in force at the material time read as follows: Article 31 “(1) Any person over the age of eighteen who commits an offence while he or she is capable of discernment shall be criminally liable. (2) Persons between the ages of fourteen and eighteen shall be criminally liable if, at the time of the offence, they were capable of understanding the nature and consequences of their actions and of controlling them.” Article 149 “(1) Any person who engages with a minor under the age of fourteen in acts aimed at arousing or satisfying a sexual impulse without intercourse shall be sentenced to a term of imprisonment of one to six years for sexual abuse ( блудство ). (2) Any person who commits sexual abuse using force or threats, taking advantage of the victim’s vulnerability or placing the victim in a vulnerable situation, or abusing a position of dependence or authority, shall be sentenced to a term of imprisonment of two to eight years. ... (4) The sentence shall be three to fifteen years’ imprisonment: 1. if the acts are committed by two or more persons; ... (5) The sentence shall be five to twenty years’ imprisonment : 1. if the acts are committed against two or more minors. ...” Article 151 “(1) Any person who engages in sexual intercourse with a minor under the age of fourteen, in so far as the act does not constitute the offence referred to in Article 152, shall be sentenced to a term of imprisonment of two to six years. ...” Article 152 “(1) Any person who engages in sexual intercourse with a person of the female sex : 1. who is unable to defend herself, where she has not consented; 2. who was compelled by the use of force or threats; 3. who was reduced to a state of helplessness by the perpetrator; shall be sentenced to a term of imprisonment of two to eight years for rape. ... (4) The sentence for rape shall be ten to twenty years’ imprisonment: 1. if the victim is under fourteen years of age; ...” Article 155b “Any person who incites a minor under fourteen years of age to take part in sexual acts, whether real, virtual or simulated, between persons of the same or the opposite sex, or in lascivious displays of sexual organs, sodomy, masturbation, sadism or masochism, or to observe such acts, shall be sentenced to a term of imprisonment of up to three years or to a probationary period.” Article 157 “(1) Any person who engages in an act of sexual penetration or sexual gratification with a person of the same sex using force or threats, abusing a position of dominance or authority or taking advantage of the person’s helplessness, shall be sentenced to a term of imprisonment of two to eight years. (2) Where the victim is under fourteen years of age the sentence shall be three to twenty years’ imprisonment. (3) Any person who engages in an act of sexual penetration or sexual gratification with a person of the same sex under the age of fourteen shall be sentenced to between two and six years’ imprisonment. ...” Article 159 “(1) Any person who creates, exhibits, distributes, offers, sells, rents out or otherwise propagates pornographic material shall be sentenced to up to one year’s imprisonment and to a fine ranging from 1,000 to 3,000 levs [approximately 500 to 1,500 euros]. ... (4) The offences referred to in paragraphs 1 to 3 shall be punishable by a sentence of up to six years’ imprisonment and a fine of up to 8,000 levs [approximately 4,000 euros] where a person who is or appears to be under the age of eighteen is employed in the production of pornographic material. ...” The Code of Criminal Procedure 116. Under Articles 207 to 211 of the 2006 Code of Criminal Procedure, criminal proceedings are instituted by the authorities where there are legal grounds ( законен повод ) and sufficient evidence ( достатъчно данни ) pointing to the commission of a criminal offence. The legal grounds may be a report ( съобщение ) addressed to the public prosecutor or another competent body alleging that an offence has been committed, a press article, statements made by the perpetrator of the offence, or direct observation by the prosecuting authorities of the commission of an offence. 117. In order to decide whether it is necessary to institute criminal proceedings the public prosecutor opens a case file ( преписка ) and carries out a preliminary investigation ( проверка ). In that connection he or she may – either in person or by delegating powers to the competent public authorities, and in particular the police – gather all the documents, information, testimony, expert opinions and other relevant evidence (section 145 of the Judiciary Act). 118. Where the prosecutor decides not to institute criminal proceedings and discontinues the case ( отказ да се образува досъдебно производство ), he or she must inform the victim of the alleged offence or his or her heirs, any legal entity affected, and the person who made the report (Article 213 of the Code of Criminal Procedure). The higher-ranking prosecutor may, on an application from the above-mentioned persons or of his or her own motion, set aside the discontinuance order and order the opening of criminal proceedings (Article 46 § 3 and Article 213 § 2 of the Code). 119. Under Article 160 of the Code of Criminal Procedure, a search may be ordered in the context of criminal proceedings where there are reasonable grounds to consider that objects, documents or IT systems containing information that may be of relevance to the case are likely to be found at a particular location. Searches may only be conducted with judicial authorisation, except in urgent situations where an immediate search is the only means of gathering and preserving the evidence (Article 161 of the Code). 120. Under Article 172 of the Code of Criminal Procedure, the prosecuting authorities may make use of special information-gathering techniques such as telephone tapping, only in investigating serious offences including those referred to in Articles 149 to 159 of the Criminal Code, and where the relevant circumstances cannot be established using other means or it would be particularly difficult for the authorities to establish them without using these techniques. The use of special information-gathering methods and techniques must be approved by a judge on a reasoned application by the prosecutor in charge of the investigation (Article 173). The Child Protection Act 121. The Child Protection Act passed in 2000 is aimed at ensuring the protection of children and respect for their rights. Section 3 establishes the defence of the child’s best interests as one of the guiding principles of child protection. Under section 11, each child is entitled to protection, in particular, against child-rearing methods that are contrary to his or her dignity and against all forms of physical, psychological and other violence. 122. The SACP is the main authority tasked with ensuring child protection, in cooperation with social services, the various ministries, mayors and the municipal social services. Under section 17a(1) of the Child Protection Act, the President of the SACP is empowered, among other things, to monitor respect for children’s rights by schools, healthcare establishments and specialised institutions such as orphanages. In the event of an infringement of these rights or of the applicable rules, he or she issues binding instructions with a view to remedying the shortcomings identified. The President of the SACP, like the municipal social welfare services, has powers to report a case to the police, the prosecuting authorities or the courts where a child is at risk. INTERNATIONAL LAWUnited Nations United Nations United Nations 123. The Convention on the Rights of the Child, adopted on 20 November 1989 and ratified by almost all the member States of the United Nations, is designed to recognise and protect specific rights for children, extending to the latter the concept of human rights set out in the Universal Declaration of Human Rights. 124. The relevant provisions of that Convention read as follows: Article 3 “1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. ...” Article 19 “1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. 2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.” 125. The Committee on the Rights of the Child monitors implementation of the Convention on the Rights of the Child. In its General Comment No. 13 of 18 April 2011, entitled “The right of the child to freedom from all forms of violence” and prompted by the “[alarming] extent and intensity of violence exerted on children”, it made the following observations concerning Article 19 of that Convention : (a) Article 19 § 1 prohibits all forms of violence, including physical bullying and hazing by adults and by other children; (b) sexual abuse comprises any sexual activities imposed by an adult on a child, or “committed against a child by another child, if the child offender is significantly older than the child victim or uses power, threat or other means of pressure”; (c) Article 19 § 1 prohibits “[t]he process of taking, making, permitting to take, distributing, showing, possessing or advertising indecent photographs ... and videos of children ...”; (d) Article 19 § 2 imposes an obligation to take measures to identify and report violence, to investigate and to ensure judicial involvement. 126. As regards investigations, General Comment No. 13 states as follows: “Investigation of instances of violence, whether reported by the child, a representative or an external party, must be undertaken by qualified professionals who have received role-specific and comprehensive training, and require a child rights ‑ based and child-sensitive approach. Rigorous but child-sensitive investigation procedures will help to ensure that violence is correctly identified and help provide evidence for administrative, civil, child-protection and criminal proceedings. Extreme care must be taken to avoid subjecting the child to further harm through the process of the investigation. Towards this end, all parties are obliged to invite and give due weight to the child’s views.” The General Comment specifies that judicial involvement may include criminal-law procedures “which must be strictly applied in order to abolish the widespread practice of de jure or de facto impunity, in particular of State actors.” Council of EuropeThe Lanzarote Convention The Lanzarote Convention The Lanzarote Convention 127. The Council of Europe Convention on Protection of Children against Sexual Exploitation and Sexual Abuse (“the Lanzarote Convention”), which was adopted by the Committee of Ministers on 12 July 2007 and entered into force on 1 July 2010, is designed to prevent and combat sexual exploitation and sexual abuse of children, protect the rights of child victims of sexual exploitation and sexual abuse, and promote national and international cooperation against sexual exploitation and sexual abuse of children. It entered into force on 1 April 2012 in respect of Bulgaria and on 1 May 2013 in respect of Italy. It requires the States Parties, in particular, to criminalise all forms of sexual exploitation and sexual abuse of children (Articles 18 to 24) and to adopt measures to assist victims. The Convention also lays down certain requirements to be met as regards the investigation and prosecution of such offences. The relevant parts of this Convention provide as follows: Chapter IV – Protective measures and assistance to victims Article 11 – Principles “1. Each Party shall establish effective social programmes and set up multidisciplinary structures to provide the necessary support for victims, their close relatives and for any person who is responsible for their care. ...” Article 12 – Reporting suspicion of sexual exploitation or sexual abuse “... 2. Each Party shall take the necessary legislative or other measures to encourage any person who knows about or suspects, in good faith, sexual exploitation or sexual abuse of children to report these facts to the competent services. ...” Article 13 – Helplines “Each Party shall take the necessary legislative or other measures to encourage and support the setting up of information services, such as telephone or Internet helplines, to provide advice to callers, even confidentially or with due regard for their anonymity. ” Article 14 – Assistance to victims “... 3. When the parents or persons who have care of the child are involved in his or her sexual exploitation or sexual abuse, the intervention procedures taken in application of Article 11, paragraph 1, shall include: – the possibility of removing the alleged perpetrator; ...” Chapter VI - Substantive criminal law Article 18 – Sexual abuse “1. Each Party shall take the necessary legislative or other measures to ensure that the following intentional conduct is criminalised: (a) engaging in sexual activities with a child who, according to the relevant provisions of national law, has not reached the legal age for sexual activities; (b) engaging in sexual activities with a child where: – use is made of coercion, force or threats; or – abuse is made of a recognised position of trust, authority or influence over the child, including within the family; or – abuse is made of a particularly vulnerable situation of the child, notably because of a mental or physical disability or a situation of dependence. ...” Article 25 – Jurisdiction “1. Each Party shall take the necessary legislative or other measures to establish jurisdiction over any offence established in accordance with this Convention, when the offence is committed: (a) in its territory; or ... (d) by one of its nationals; or (e) by a person who has his or her habitual residence in its territory.” Article 27 – Sanctions and measures “1. Each Party shall take the necessary legislative or other measures to ensure that the offences established in accordance with this Convention are punishable by effective, proportionate and dissuasive sanctions, taking into account their seriousness. These sanctions shall include penalties involving deprivation of liberty which can give rise to extradition. ... 3. Each Party shall take the necessary legislative or other measures to: (a) provide for the seizure and confiscation of: – goods, documents and other instrumentalities used to commit the offences, established in accordance with this Convention or to facilitate their commission; – proceeds derived from such offences or property the value of which corresponds to such proceeds; (b) enable the temporary or permanent closure of any establishment used to carry out any of the offences established in accordance with this Convention, without prejudice to the rights of bona fide third parties, or to deny the perpetrator, temporarily or permanently, the exercise of the professional or voluntary activity involving contact with children in the course of which the offence was committed. ...” Chapter VII – Investigation, prosecution and procedural law Article 30 – Principles “1. Each Party shall take the necessary legislative or other measures to ensure that investigations and criminal proceedings are carried out in the best interests and respecting the rights of the child. 2. Each Party shall adopt a protective approach towards victims, ensuring that the investigations and criminal proceedings do not aggravate the trauma experienced by the child and that the criminal justice response is followed by assistance, where appropriate. 3. Each Party shall ensure that the investigations and criminal proceedings are treated as priority and carried out without any unjustified delay. 4. Each Party shall ensure that the measures applicable under the current chapter are not prejudicial to the rights of the defence and the requirements of a fair and impartial trial, in conformity with Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. 5. Each Party shall take the necessary legislative or other measures, in conformity with the fundamental principles of its internal law: – to ensure an effective investigation and prosecution of offences established in accordance with this Convention, allowing, where appropriate, for the possibility of covert operations; – to enable units or investigative services to identify the victims of the offences established in accordance with Article 20, in particular by analysing child pornography material, such as photographs and audiovisual recordings transmitted or made available through the use of information and communication technologies.” Article 31 – General measures of protection “1. Each Party shall take the necessary legislative or other measures to protect the rights and interests of victims, including their special needs as witnesses, at all stages of investigations and criminal proceedings, in particular by: (a) informing them of their rights and the services at their disposal and, unless they do not wish to receive such information, the follow-up given to their complaint, the charges, the general progress of the investigation or proceedings, and their role therein as well as the outcome of their cases; ... (c) enabling them, in a manner consistent with the procedural rules of internal law, to be heard, to supply evidence and to choose the means of having their views, needs and concerns presented, directly or through an intermediary, and considered; (d) providing them with appropriate support services so that their rights and interests are duly presented and taken into account; (e) protecting their privacy, their identity and their image and by taking measures in accordance with internal law to prevent the public dissemination of any information that could lead to their identification; ... 2. Each Party shall ensure that victims have access, as from their first contact with the competent authorities, to information on relevant judicial and administrative proceedings. ...” Article 32 – Initiation of proceedings “Each Party shall take the necessary legislative or other measures to ensure that investigations or prosecution of offences established in accordance with this Convention shall not be dependent upon the report or accusation made by a victim, and that the proceedings may continue even if the victim has withdrawn his or her statements.” Article 34 – Investigations “1. Each Party shall adopt such measures as may be necessary to ensure that persons, units or services in charge of investigations are specialised in the field of combating sexual exploitation and sexual abuse of children or that persons are trained for this purpose. ...” Article 35 – Interviews with the child “1. Each Party shall take the necessary legislative or other measures to ensure that: (a) interviews with the child take place without unjustified delay after the facts have been reported to the competent authorities; (b) interviews with the child take place, where necessary, in premises designed or adapted for this purpose; (c) interviews with the child are carried out by professionals trained for this purpose; (d) the same persons, if possible and where appropriate, conduct all interviews with the child; (e) the number of interviews is as limited as possible and in so far as strictly necessary for the purpose of criminal proceedings; (f) the child may be accompanied by his or her legal representative or, where appropriate, an adult of his or her choice, unless a reasoned decision has been made to the contrary in respect of that person. 2. Each Party shall take the necessary legislative or other measures to ensure that all interviews with the victim or, where appropriate, those with a child witness, may be videotaped and that these videotaped interviews may be accepted as evidence during the court proceedings, according to the rules provided by its internal law. ...” Article 36 – Criminal court proceedings “1. Each Party shall take the necessary legislative or other measures, with due respect for the rules governing the autonomy of legal professions, to ensure that training on children’s rights and sexual exploitation and sexual abuse of children is available for the benefit of all persons involved in the proceedings, in particular judges, prosecutors and lawyers. ...” Chapter IX – International co-operation Article 38 – General principles and measures for international co-operation “1. The Parties shall co-operate with each other, in accordance with the provisions of this Convention, and through the application of relevant applicable international and regional instruments, arrangements agreed on the basis of uniform or reciprocal legislation and internal laws, to the widest extent possible, for the purpose of: (a) preventing and combating sexual exploitation and sexual abuse of children; (b) protecting and providing assistance to victims; (c) investigations or proceedings concerning the offences established in accordance with this Convention. 2. Each Party shall take the necessary legislative or other measures to ensure that victims of an offence established in accordance with this Convention in the territory of a Party other than the one where they reside may make a complaint before the competent authorities of their State of residence. ...” The Explanatory Report on the Lanzarote Convention 128. The Explanatory Report on the Lanzarote Convention stresses that Article 18, which defines the offence of sexual abuse of a child, requires that children, irrespective of their age, be protected in “situations where the persons involved abuse a relationship of trust with the child resulting from a natural, social or religious authority which enables them to control, punish or reward the child emotionally, economically, or even physically.” 129. With regard to Article 30 of the Lanzarote Convention concerning the principles governing investigations, the Explanatory Report specifies as follows. (a) According to paragraph 3 of that Article, investigations and proceedings “should be treated as priority and without unjustified delays, as the excessive length of proceedings may be understood by the child victim as a denial of his testimony or a refusal to be heard and could exacerbate the trauma which he or she has already suffered”. (b) Paragraph 5, first indent, states that “the Parties must take the necessary legislative or other measures to ensure an effective investigation and prosecution of the offences established ... It is for the Parties to decide on the methods of investigation to be used. However, States should allow, where appropriate and in conformity with the fundamental principles of their internal law, the use of covert operations. ” (c) The second indent urges the Parties “to develop techniques for examining material containing pornographic images in order to make it easier to identify victims.” Regarding the recommendation to conduct covert operations where appropriate, the report specifies that “it is left to the Parties to decide on when and under which circumstances such investigative methods should be allowed, taking into account, inter alia, the principle of proportionality in relation to the rules of evidence and regarding the nature and seriousness of the offences under investigation.” Declaration of the Lanzarote Committee on protecting children in out-of-home care from sexual exploitation and sexual abuse 130. The Committee of the Parties to the Council of Europe Convention on the protection of children against sexual exploitation and sexual abuse (“the Lanzarote Committee”) is tasked with monitoring the implementation of the Lanzarote Convention. To that end it is mandated, in particular, to facilitate the effective use and implementation of the Convention, including the identification of any problems, and to express an opinion on any question concerning its application (Article 41 §§ 1 and 3 of the Lanzarote Convention). 131. At its 25 th meeting (15-18 October 2019) the Lanzarote Committee adopted a declaration on protecting children in out-of-home care from sexual exploitation and sexual abuse. The relevant parts of the declaration read as follows: “The Lanzarote Committee calls upon the States Parties to the Lanzarote Convention to: ... 2. ensure that in all types of out of home care settings there are: (i) comprehensive screening procedures for all persons taking care of children; (ii) specific measures to prevent abuse of children’s increased vulnerability and dependence; (iii) adequate mechanisms for supporting children to disclose any sexual violence; (iv) protocols to ensure that, in the event of disclosure, effective follow-up is given in terms of assistance to the alleged victims and investigation of the alleged offences by the appropriate authorities; (v) clear procedures to allow for the possibility of removing the alleged perpetrator from the out of home care setting from the onset of the investigation; ... 4. provide victims of sexual abuse in out-of-home care settings with long-term assistance in terms of medical, psychological and social support, and also provide them with legal aid and compensation; ... 8. encourage research and action at national and international levels to: (i) analyse and review the phenomenon of child sexual abuse in all types of out ‑ of ‑ home care, including the issue of liability of legal persons; (ii) allow the voices of the survivors of child sexual abuse in out-of-home care to be heard and acknowledged; (iii) identify best practices for supporting survivors of child sexual abuse that occurred in out-of-home care; (iv) develop comprehensive planning for addressing child sexual abuse in out-of-home care by effective measures for prevention, service provision and the prosecution of offenders.” The European Social Charter 132. Article 7 of the European Social Charter (adopted in 1961 and revised in 1996) provides that children and young persons have the right to special protection against physical and moral danger to which they are exposed. Article 17 of the Revised Social Charter provides for the right of children and young persons to appropriate social, legal and economic protection. Sub-paragraph 1 (b) of Article 17 requires, in particular, that all appropriate and necessary measures be taken to protect children and young persons against negligence, violence or exploitation. Guidelines on child-friendly justice 133. The Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice were adopted by the Committee of Ministers on 17 November 2010. The relevant passages read as follows: III. Fundamental principles A. Participation “1. The right of all children to be informed about their rights, to be given appropriate ways to access justice and to be consulted and heard in proceedings involving or affecting them should be respected. This includes giving due weight to the children’s views bearing in mind their maturity and any communication difficulties they may have in order to make this participation meaningful. ...” B. Best interests of the child “1. Member states should guarantee the effective implementation of the right of children to have their best interests be a primary consideration in all matters involving or affecting them. ...” D. Protection from discrimination “... 2. Specific protection and assistance may need to be granted to more vulnerable children, such as migrant children, refugee and asylum-seeking children, unaccompanied children, children with disabilities, homeless and street children, Roma children, and children in residential institutions.” IV. Child-friendly justice before, during and after judicial proceedings A. General elements of child-friendly justice “1. Information and advice 1. From their first involvement with the justice system or other competent authorities (such as the police, immigration, educational, social or health care services) and throughout that process, children and their parents should be promptly and adequately informed of, inter alia : a. their rights, in particular the specific rights children have with regard to judicial or non-judicial proceedings in which they are or might be involved, and the instruments available to remedy possible violations of their rights including the opportunity to have recourse to either a judicial or non-judicial proceeding or other interventions. This may include information on the likely duration of proceedings, possible access to appeals and independent complaints mechanisms; b. the system and procedures involved, taking into consideration the particular place the child will have and the role he or she may play in it and the different procedural steps; c. the existing support mechanisms for the child when participating in the judicial or non-judicial procedures; d. the appropriateness and possible consequences of given in-court or out-of-court proceedings; e. where applicable, the charges or the follow-up given to their complaint; f. the time and place of court proceedings and other relevant events, such as hearings, if the child is personally affected; g. the general progress and outcome of the proceedings or intervention; ... k. the availability of the services (health, psychological, social, interpretation and translation, and other) or organisations which can provide support and the means of accessing such services along with emergency financial support, where applicable; l. any special arrangements available in order to protect as far as possible their best interests if they are resident in another state. 2. The information and advice should be provided to children in a manner adapted to their age and maturity, in a language which they can understand and which is gender and culture sensitive. 3. As a rule, both the child and parents or legal representatives should directly receive the information. Provision of the information to the parents should not be an alternative to communicating the information to the child. ...” D. Child-friendly justice during judicial proceedings “... 3. Right to be heard and to express views 44. Judges should respect the right of children to be heard in all matters that affect them or at least to be heard when they are deemed to have a sufficient understanding of the matters in question. Means used for this purpose should be adapted to the child’s level of understanding and ability to communicate and take into account the circumstances of the case. Children should be consulted on the manner in which they wish to be heard. ... 48. Children should be provided with all necessary information on how effectively to use the right to be heard. However, it should be explained to them that their right to be heard and to have their views taken into consideration may not necessarily determine the final decision. 49. Judgments and court rulings affecting children should be duly reasoned and explained to them in language that children can understand, particularly those decisions in which the child’s views and opinions have not been followed. ... 5. Organisation of the proceedings, child-friendly environment and child-friendly language 54. In all proceedings, children should be treated with respect for their age, their special needs, their maturity and level of understanding, and bearing in mind any communication difficulties they may have. Cases involving children should be dealt with in non-intimidating and child-sensitive settings. ... 58. Children should be allowed to be accompanied by their parents or, where appropriate, an adult of their choice, unless a reasoned decision has been made to the contrary in respect of that person. 59. Interview methods, such as video or audio-recording or pre-trial hearings in camera, should be used and considered as admissible evidence. ... 6. Evidence/statements by children 64. Interviews of and the gathering of statements from children should, as far as possible, be carried out by trained professionals. Every effort should be made for children to give evidence in the most favourable settings and under the most suitable conditions, having regard to their age, maturity and level of understanding and any communication difficulties they may have. 65. Audiovisual statements from children who are victims or witnesses should be encouraged, while respecting the right of other parties to contest the content of such statements. 66. When more than one interview is necessary, they should preferably be carried out by the same person, in order to ensure coherence of approach in the best interests of the child. 67. The number of interviews should be as limited as possible and their length should be adapted to the child’s age and attention span. 68. Direct contact, confrontation or interaction between a child victim or witness with alleged perpetrators should, as far as possible, be avoided unless at the request of the child victim. ... 70. The existence of less strict rules on giving evidence such as absence of the requirement for oath or other similar declarations, or other child-friendly procedural measures, should not in itself diminish the value given to a child’s testimony or evidence. ... 73. A child’s statements and evidence should never be presumed invalid or untrustworthy by reason only of the child’s age.” V. Promoting other child-friendly actions “Member states are encouraged to: ... e. facilitate children’s access to courts and complaint mechanisms and further recognise and facilitate the role of NGOs and other independent bodies or institutions such as children’s ombudsmen in supporting children’s effective access to courts and independent complaint mechanisms, both on a national and international level; ... g. develop and facilitate the use by children and others acting on their behalf of universal and European human and children’s rights protection mechanisms for the pursuit of justice and protection of rights when domestic remedies do not exist or have been exhausted; ... j. set up child-friendly, multi-agency and interdisciplinary centres for child victims and witnesses where children could be interviewed and medically examined for forensic purposes, comprehensively assessed and receive all relevant therapeutic services from appropriate professionals; k. set up specialised and accessible support and information services, such as online consultation, help lines and local community services free of charge; ...” Recommendation Rec(2005)5 of the Committee of Ministers on the rights of children living in residential institutions 134. In this recommendation, adopted on 16 March 2005, the Committee of Ministers of the Council of Europe called on the governments of the member States to adopt the necessary legislative and other measures to guarantee that the principles and quality standards set out in the recommendation were observed, in particular by putting in place an efficient system of monitoring and external control of residential institutions. Under the heading of basic principles, the recommendation stated as follows: “– any measures of control and discipline which may be used in residential institutions, including those with the aim of preventing self-inflicted harm or injury to others, should be based on public regulations and approved standards; ...” The recommendation also set forth certain specific rights for children living in residential institutions, including: “– the right to respect for the child’s human dignity and physical integrity; in particular, the right to conditions of human and non-degrading treatment and a non-violent upbringing, including the protection against corporal punishment and all forms of abuse; ... – the right to make complaints to an identifiable, impartial and independent body in order to assert children’s fundamental rights.” European Union 135. Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography establishes minimum rules concerning the definition of criminal offences and sanctions in the area of sexual abuse and sexual exploitation of children, child pornography and solicitation of children for sexual purposes. It also sets out provisions designed to strengthen the prevention of this type of crime and the protection of the victims thereof. It contains provisions similar to those of the Lanzarote Convention. The time-limit for transposal of the directive was 18 December 2013, after the events of relevance to the present case. 136. Prior to Directive 2011/93/EU, Council Framework Decision 2004/68/JHA of 22 December 2003 on combating the sexual exploitation of children and child pornography provided that member States should criminalise the most serious forms of sexual abuse and sexual exploitation of children by means of a comprehensive approach including effective, proportionate and dissuasive sanctions accompanied by the widest possible judicial cooperation, and provide a minimum level of assistance to victims. For its part, Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings established a set of victims’ rights in criminal proceedings, including the right to protection and compensation. 137. The Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, which entered into force in 2005 and was applicable at the time of the events in the present case, is designed to supplement and facilitate implementation of the provisions concerning mutual legal assistance among the European Union member States. THE LAW SCOPE OF THE CASE BEFORE THE GRAND CHAMBER 138. The Court notes that the adoptive parents of the three applicants lodged the original application on the applicants’ behalf and also on their own behalf. On 5 September 2016 the President of the Section decided to give notice of the complaints to the respondent Government in so far as they related to the three minor applicants, and to declare inadmissible the complaints raised by the parents on their own behalf (see paragraph 4 above). Under Article 27 § 2 of the Convention and Rule 54 § 3 of the Rules of Court, the decision to declare those complaints inadmissible is final. 139. The Chamber, in its judgment, reiterated these circumstances and specified that the judgment did not concern the complaints that had been declared inadmissible (see X and Others v. Bulgaria, no. 22457/16, § 58, 17 January 2019 – “the Chamber judgment”). 140. In the Grand Chamber proceedings, the applicants maintained that the Court should examine the complaints submitted by the parents on their own behalf. The Government disagreed, arguing that the decision to declare part of the application inadmissible was final. 141. The Court reiterates that, according to its case-law, the content and scope of the “case” referred to the Grand Chamber are delimited by the Chamber’s decision on admissibility and do not include the complaints that have been declared inadmissible (see Ilnseher v. Germany [GC], nos. 10211/12 and 27505/14, § 100, 4 December 2018, and Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 84, 24 January 2017). Accordingly, the Grand Chamber will confine its examination in the present case to the complaints raised on behalf of the three minor applicants and declared admissible by the Chamber. THE GOVERNMENT’S PRELIMINARY OBJECTION 142. Before the Grand Chamber, the Government reiterated the objection of inadmissibility for abuse of the right of individual application which the Chamber had dismissed in its judgment (see paragraphs 62-64 of the Chamber judgment). 143. Firstly, they argued that the applicants’ legal representatives, in an attempt to mislead the Court, had knowingly presented untrue facts, and that their allegations generally were based on fantasy and not corroborated by any hard evidence such as medical certificates. Secondly, the Government complained of what they regarded as the disrespectful and insulting language used in the applicants’ observations with regard to the Bulgarian authorities and individuals whom the applicants had described as paedophiles and accomplices to criminal acts. 144. The applicants did not comment on this issue. 145. The Court reiterates that, according to its case-law, an application is an abuse of the right of application if it is knowingly based on untrue facts with a view to deceiving the Court (see, among other authorities, Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014). In the present case, irrespective of whether the accusations of sexual abuse committed against the applicants are well founded, there is no basis for the Court to conclude that their representatives deliberately presented facts which they knew to be untrue. 146. An application may also be regarded as an abuse of the right of application where the applicant, in his or her correspondence, uses particularly vexatious, insulting, threatening or provocative language – whether this be against the respondent Government, its Agent, the authorities of the respondent State, the Court itself, its judges, its Registry or members thereof. Nevertheless, it is not sufficient for the applicant’s language to be merely cutting, polemical or sarcastic; it must exceed “the bounds of normal, civil and legitimate criticism” in order to be regarded as abusive ( see Zafranas v. Greece, no. 4056/08, § 26, 4 October 2011, and the case-law cited therein). In that connection, the legal professionals representing applicants before the Court must also ensure compliance with the procedural and ethical rules, including the use of appropriate language. In the present case the Court notes that, in their observations, the applicants made accusations against identified individuals, referring to them as “paedophiles”, and accused the Bulgarian authorities, including the Government Agents, of covering up criminal acts. Although the language used in the applicants’ observations was indeed disrespectful, the Court notes that the subject matter and the context of the present case imposed a heavy emotional burden on the parents and that two of the applicants were still minors at the time their representatives made these remarks. It therefore considers that the applicants themselves cannot be held responsible for the remarks made, and concludes that those remarks did not overstep acceptable limits to an extent that would justify rejecting the application on that ground. 147. In view of the foregoing, the Court considers that the Government’s preliminary objection should be dismissed. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 148. Relying on Articles 3, 6, 8 and 13 of the Convention, the applicants alleged that they had been the victims of sexual abuse while living in the orphanage in Bulgaria and that the Bulgarian authorities had failed in their positive obligation to protect them against that treatment and in their obligation to conduct an effective investigation into those allegations. 149. The Court reiterates that it is master of the characterisation to be given in law to the facts of the case and that it is not bound by the characterisation given by an applicant or a Government (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018, and S.M. v. Croatia [GC], no. 60561/14, §§ 241-43, 25 June 2020). Having regard to the circumstances complained of by the applicants and the manner in which their complaints were formulated, it considers it more appropriate to examine the complaints under Article 3 of the Convention alone (for a similar approach, see S.Z. v. Bulgaria, no. 29263/12, § 30, 3 March 2015). Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The Chamber judgment 150. The Chamber examined the applicants’ complaints from the standpoint of Articles 3 and 8 of the Convention, which it found to be applicable in the present case. With regard to the procedural aspect of those provisions, it found that the Bulgarian authorities had conducted the investigation in a sufficiently prompt, diligent and thorough manner in the circumstances of the case, that they had responded properly to the appeal lodged by the applicants’ parents and that their findings could not be considered arbitrary or unreasonable. Accordingly, it held that there had been no violation of Articles 3 and 8 in this regard (see paragraphs 98 ‑ 106 of the Chamber judgment). 151. With regard to the substantive aspect of those provisions, while noting that the applicants had not called into question the legal framework of victim protection established by domestic law, the Chamber observed at the outset that a number of general measures had been taken designed to ensure the safety of the children living in the orphanage. It went on to examine whether the Bulgarian authorities had failed in a possible obligation to take concrete preventive action to protect the applicants against a risk of ill-treatment. After observing that it had not been established that the competent authorities had known or ought to have known of the existence of a real and immediate risk to the applicants, it held that the situation had not given rise to any such obligation on the part of the authorities in question. The Chamber therefore found that there had been no violation of the substantive aspect of these provisions (see paragraphs 107 ‑ 10 of the Chamber judgment). The parties’ submissions before the Grand ChamberThe applicants The applicants The applicants 152. The applicants alleged that they had been the victims of sexual abuse and violence while they had been living in the orphanage in Bulgaria, in the charge of the public authorities. They submitted that their accounts had been deemed credible, on the basis of scientific methods, by their psychologists and by the Italian judicial authorities, which had requested the Bulgarian authorities to institute proceedings. They also referred to the investigative journalism giving rise to the article in L’Espresso and to a report broadcast on Italian television in 2016, which, they maintained, confirmed their allegations. 153. The applicants contended that Bulgaria was a corrupt country and a destination for paedophile sex tourism. In their view, the location of the orphanage, in a small remote village, was conducive to incidents of this type. 154. According to the applicants, the orphanage was very far from being the model institution portrayed in the reports and the Government’s observations. Referring in particular to the statements by another Italian adoptive family which they had found on an Internet forum, they maintained that the children had not been supervised continuously and had not slept in separate dormitories, that male workers had had contact with the children and that the orphanage had housed children who were older than the maximum age permitted for this type of institution. They also pointed out that the orphanage had been closed down a few years after the events in question. 155. The applicants asserted that other children had made complaints of sexual abuse prior to the events in the present case and that nothing had been done. They were not convinced by the explanation offered by the director, who, they said, had claimed that “group emotional transference” had occurred following the stories told by the young girl M. (see paragraph 113 in fine above). 156. The applicants maintained that the absence of medical certificates – the issuing of which, moreover, would have entailed invasive examinations – did not cast doubt on their statements, as sexual abuse did not always leave physical traces, and in any event such traces tended to disappear over time. Likewise, in their submission, the fact that the general practitioner had not observed signs of violence or sexual abuse did not mean that their existence should be ruled out. They asserted that it was entirely possible that children bearing signs of violence had not been sent to the doctor for examination, or that the doctor had been complicit in the abuse. 157. The applicants further contended that the Bulgarian authorities had not conducted an effective investigation capable of shedding light on the facts and identifying the persons responsible, but rather had been at pains to demonstrate that Bulgaria could not be held responsible and to call into question their parents’ ability to raise them. They pointed to several purported shortcomings in the investigations carried out, and referred in particular to the analysis contained in the blog of a certain S.S., who they said was a Bulgarian expert on children’s rights working in the non ‑ governmental sector. 158. The applicants alleged, firstly, that the Bulgarian authorities had not acted promptly and had waited several weeks, until the publication of the article in L’Espresso, before ordering an investigation. In this connection they stated that the complaint submitted to the SACP on 16 November 2012 had not been anonymous since their father’s name had featured in the message; furthermore, no action had been taken in response to the request for the reply, written in Bulgarian, to be translated. They further maintained that the journalist from L’Espresso had sent concrete evidence to the police officer, K., as early as 19 December 2012, and that the Milan public prosecutor’s office had also sent specific information, including the names of the persons responsible, to the Bulgarian embassy on 15 January 2013. 159. The applicants criticised the Bulgarian authorities for disclosing their identity and the name of the orphanage to the press, thereby publicising the events of the case. In their view, this had breached their right to confidentiality and had also alerted the perpetrators. 160. They criticised the manner in which the Bulgarian authorities had carried out the investigation, and in particular the fact of conducting the interviews with the children on the premises of the orphanage and in the presence of staff members who could have been the abusers, and not applying scientific methods. In the applicants’ view, in order to be effective the investigations should have included measures such as telephone tapping, surveillance by undercover agents, searches of the institution and of the employees’ homes, the taking of DNA samples from the children and the employees, and the temporary suspension of the director in order to prevent pressure being put on the children. In their submission, the authorities should also have lodged a request to interview the applicants, their parents and other potential witnesses. 161. The applicants asserted that in acting as they had, the Bulgarian authorities had also breached their obligations under the international conventions on the protection of children’s rights such as the Convention on the Rights of the Child and the Lanzarote Convention. They argued in particular that Bulgaria had not enacted the general measures of protection required by the Lanzarote Convention, such as the establishment of a national register of persons convicted of paedophile offences, or orders barring such individuals from carrying out occupations involving contact with children. In the investigation in the present case the authorities had breached the victims’ right under that Convention to be informed of the follow-up to their complaint, to give evidence, to receive appropriate assistance and not to have their identity disclosed. The Government 162. In the Government’s view, the facts of the present case did not disclose a violation of the Convention. They requested the Grand Chamber to uphold the Chamber’s findings in that regard. 163. In their submission, it was beyond doubt that a legal framework existed in Bulgaria, particularly in the criminal sphere, enabling acts such as those complained of in the present case to be punished and conforming to the requirements of the relevant international instruments. Prior to 2012 the country had already enacted a number of domestic-law provisions in order to comply with the Convention on the Rights of the Child. As to the Lanzarote Convention, it had come into force in respect of Bulgaria on 1 April 2012 and had therefore not been applicable for most of the period during which the applicants claimed to have been subjected to abuse. Nevertheless, the majority of the substantive and procedural standards advocated by that Convention had been adopted between 2009 and 2011. 164. As to the applicants’ claims that they had been subjected to physical violence and sexual abuse in the orphanage, the Government submitted that the investigations carried out by the Bulgarian authorities had not brought to light any evidence to suggest that the acts in question had in fact occurred, whether with regard to the applicants or to other children in the orphanage, still less that a systematically run criminal organisation had existed. In their view, those accusations had been based solely on the applicants’ statements, which gave very little detail and contained contradictions that had been highlighted by the Bulgarian prosecuting authorities. They added that the applicants’ allegations had varied even in the proceedings before the Court; the original application had mainly complained of abuse by other children, whereas the request for referral to the Grand Chamber had contained much more serious allegations concerning the existence of an organised criminal network. 165. The Government stressed the fact that the applicants had not produced any medical certificates to corroborate their allegations of rape, in particular. Basing their view on an expert opinion, they maintained that the relevant examinations were not invasive or traumatic. 166. They further submitted that had the applicants’ allegations of very serious violence been true the general practitioner, who was based outside the orphanage and visited twice a week, would have been bound to notice traces of the said violence when conducting his check-ups. No complaint to that effect had been reported to the psychologist or to any other member of staff. The stories told by the young girl, M., had concerned a rape allegedly committed within her family, and a medical examination had been carried out straight away in response to her allegations. 167. The Government also submitted that, contrary to the applicants’ assertions, the decisions of the Italian judicial authorities, and in particular the Youth Court’s decision of 13 May 2014 (see paragraphs 94-96 above), did not contain any finding to the effect that the applicants had been the victims of criminal offences. The decision in question had merely reiterated the applicants’ statements and ordered the termination of the proceedings. In any event, that decision had not been sent to the Bulgarian authorities in charge of the investigation. 168. The Government maintained that the orphanage had taken the necessary measures to ensure the children’s safety. The orphanage had been equipped with security cameras and access by persons from outside had been subject to checks. In addition, the children had been able to report possible abuse, as they had had access to a telephone and to the number of the national helpline for children in danger, and to the orphanage’s psychologist. The children had also attended school and, in some cases, returned home to their families periodically, with the result that they had had contact with the outside world. 169. In view of the seriousness of the applicants’ allegations, a team of psychologists had been sent to the orphanage for a week following the first inspection in January 2013, in order to provide the children with the necessary support. 170. As to the possible procedural obligations arising out of the relevant provisions of the Convention, the Government maintained that the competent authorities in Bulgaria had acted swiftly after learning of the applicants’ allegations through the articles in the press. It was only at that stage, when the name of the intermediary organisation, AiBi, had been made public, that the authorities had obtained the applicants’ identity from that organisation. Prior to that date, the information provided by the applicants’ father in his email and by the Nadja Centre had not been sufficiently precise to enable an investigation to be started. 171. The Government contended that the investigation carried out had been independent, thorough and full. In particular, the SACP and all the individuals involved in the investigations had had no hierarchical links with the potential abusers. The SACP had issued detailed methodological instructions for the conduct of inspections concerning respect for children’s rights in schools, specialised institutions and all institutions that received children. According to those instructions, the experts conducting the inspections were required, among other things, to be objective and independent, to comply with professional ethical standards, and to ensure respect for the children’s personality and dignity and the confidentiality of the personal data collected. The recommended methods for the conduct of inspections included a review of the files, interviews, a written inquiry, observation, study of best practice, group discussions and role play. 172. As to the thoroughness of the investigations, the Government argued that the obligation on the State was one of means and not one of result. In the present case the various relevant services had carried out several inspections at the orphanage and had sought explanations from the individuals who were the subject of the applicants’ allegations. In order to arrive at the truth, they had compared the results of those investigations and the applicants’ allegations. 173. In that regard the Government raised an objection in principle to any consideration of the comments made by S.S. and reiterated by the applicants (see paragraph 157 above). In their view, S.S. had no connection with the investigation and was not qualified to express an opinion. 174. On the subject of searches, the Government explained that such measures could be taken only where criminal proceedings had been initiated and where there were reasonable grounds to consider that items of evidence were likely be found at a particular location. The carrying-out of such searches was subject to judicial authorisation except in urgent cases. In the present case the applicants’ allegations and the investigations carried out had not disclosed any evidence to justify conducting searches. As to the use of covert operations, the Government stressed that the applicants had made the case public with the publication of the article in L’Espresso. Furthermore, the applicants had not requested at any stage that additional investigative steps be taken, including in their appeal against the order discontinuing the case. 175. Regarding the information provided to the applicants, the Government submitted that the proceedings in Bulgaria had not been instituted at the request of the adoptive parents, but of the authorities’ own motion, and that the decisions taken had been notified to the Italian authorities in January 2015 at the latter’s request. In the Government’s submission, there had been nothing to prevent the applicants’ parents from seeking more detailed information from the public prosecutor’s office or requesting further investigative measures. Furthermore, the observations made by the applicants had been examined by the higher-ranking prosecutor’s office. The Court’s assessmentGeneral principles General principles General principles 176. The Court reiterates that Article 3 of the Convention enshrines one of the fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment. Ill ‑ treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of that level is, in the nature of things, relative and depends on all the circumstances of the case, principally the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 116, 25 June 2019). 177. The obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals (see, among other authorities, O’Keeffe v. Ireland [GC], no. 35810/09, § 144, ECHR 2014 (extracts), and M.C. v. Bulgaria, no. 39272/98, § 149, ECHR 2003 ‑ XII). Children and other vulnerable individuals, in particular, are entitled to effective protection (see A. v. the United Kingdom, 23 September 1998, § 22, Reports of Judgments and Decisions 1998 ‑ VI; M.C. v. Bulgaria, cited above, § 150; and A and B v. Croatia, no. 7144/15, § 106, 20 June 2019). 178. It emerges from the Court’s case-law as set forth in the ensuing paragraphs that the authorities’ positive obligations under Article 3 of the Convention comprise, firstly, an obligation to put in place a legislative and regulatory framework of protection; secondly, in certain well-defined circumstances, an obligation to take operational measures to protect specific individuals against a risk of treatment contrary to that provision; and, thirdly, an obligation to carry out an effective investigation into arguable claims of infliction of such treatment. Generally speaking, the first two aspects of these positive obligations are classified as “substantive”, while the third aspect corresponds to the State’s positive “procedural” obligation. (a) Positive obligation to put in place an appropriate legislative and regulatory framework 179. The positive obligation under Article 3 of the Convention necessitates in particular establishing a legislative and regulatory framework to shield individuals adequately from breaches of their physical and psychological integrity, particularly, in the most serious cases, through the enactment of criminal-law provisions and their effective application in practice (see S.Z. v. Bulgaria, cited above, § 43, and A and B v. Croatia, cited above, § 110). Regarding, more specifically, serious acts such as rape and the sexual abuse of children, it falls upon the member States to ensure that efficient criminal-law provisions are in place (see Söderman v. Sweden [GC], no. 5786/08, § 82, ECHR 2013, and M.C. v. Bulgaria, cited above, § 150). This obligation also stems from the provisions of other international instruments, such as, in particular, Articles 18 to 24 of the Lanzarote Convention (see paragraph 127 above). In that connection the Court reiterates that the Convention must be applied in accordance with the principles of international law, in particular with those relating to the international protection of human rights (see Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96 and 2 others, § 90, ECHR 2001 ‑ II, and Al ‑ Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001 ‑ XI). 180. The positive obligation of protection assumes particular importance in the context of a public service with a duty to protect the health and well ‑ being of children, especially where those children are particularly vulnerable and are under the exclusive control of the authorities (see, in the context of primary education, O’Keeffe, cited above, § 145, and, in the context of a facility for disabled children and under Article 2 of the Convention, Nencheva and Others v. Bulgaria, no. 48609/06, §§ 106 ‑ 16 and 119-20, 18 June 2013). It may, in some circumstances, require the adoption of special measures and safeguards. Hence, the Court has specified in relation to cases of child sexual abuse, particularly where the abuser is in a position of authority over the child, that the existence of useful detection and reporting mechanisms is fundamental to the effective implementation of the relevant criminal laws (see O’Keeffe, cited above, § 148). (b) Positive obligation to take operational protective measures 181. As with Article 2 of the Convention, Article 3 may, in certain circumstances, require a State to take operational measures to protect victims, or potential victims, of ill-treatment (see, mutatis mutandis, Osman v. the United Kingdom, 28 October 1998, § 115, Reports 1998-VIII). 182. However, this positive obligation is to be interpreted in such a way as not to impose an impossible or disproportionate burden on the authorities, bearing in mind the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources. Accordingly, not every risk of ill-treatment can entail for the authorities a Convention requirement to take measures to prevent that risk from materialising. However, the required measures should, at least, provide effective protection in particular of children and other vulnerable persons and should include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge (see O’Keeffe, cited above, § 144). 183. Therefore, for a positive obligation to arise it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk of ill-treatment of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see Đorđević v. Croatia, no. 41526/10, § 139, ECHR 2012, and Buturugă v. Romania, no. 56867/15, § 61, 11 February 2020). (c) Procedural obligation to carry out an effective investigation 184. Furthermore, where an individual claims on arguable grounds to have suffered acts contrary to Article 3, that Article requires the national authorities to conduct an effective official investigation to establish the facts of the case and identify and, if appropriate, punish those responsible. Such an obligation cannot be considered to be limited solely to cases of ill ‑ treatment by State agents (see S.Z. v. Bulgaria, cited above, § 44, and B.V. v. Belgium, no. 61030/08, § 56, 2 May 2017). 185. In order to be effective, the investigation must be sufficiently thorough. The authorities must take reasonable measures available to them to obtain evidence relating to the offence in question (see S.Z. v. Bulgaria, cited above, § 45). They must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation (see Bouyid v. Belgium [GC], no. 23380/09, § 123, ECHR 2015, and B.V. v. Belgium, cited above, § 60). Any deficiency in the investigation which undermines its ability to establish the facts or the identity of the persons responsible will risk falling foul of this standard (see Bouyid, cited above, § 120, and Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 134, ECHR 2004 ‑ IV (extracts)). 186. However, the obligation to conduct an effective investigation is an obligation not of result but of means. There is no absolute right to obtain the prosecution or conviction of any particular person where there were no culpable failures in seeking to hold perpetrators of criminal offences accountable (see A, B and C v. Latvia, no. 30808/11, § 149, 31 March 2016, and M.G.C. v. Romania, no. 61495/11, § 58, 15 March 2016). Furthermore, the Court is not concerned with allegations of errors or isolated omissions in the investigation: it cannot replace the domestic authorities in the assessment of the facts of the case, nor can it decide on the alleged perpetrators’ criminal responsibility (see B.V. v. Belgium, cited above, § 61, and M. and C. v. Romania, no. 29032/04, § 113, 27 September 2011). Likewise, it is not the Court’s task to call into question the lines of inquiry pursued by the investigators or the findings of fact made by them, unless they manifestly fail to take into account relevant elements or are arbitrary (see S.Z. v. Bulgaria, cited above, § 50, and Y v. Bulgaria, no. 41990/18, § 82, 20 February 2020). Nevertheless, a failure to pursue an obvious line of inquiry can decisively undermine the investigation’s ability to establish the circumstances of the case and the identity of those responsible (see M.N. v. Bulgaria, no. 3832/06, § 48, 27 November 2012, and Y v. Bulgaria, cited above, § 82). 187. Moreover, for an investigation to be effective, the institutions and persons responsible for carrying it out must be independent from those targeted by it. This means not only a lack of hierarchical or institutional connection but also a practical independence (see, among other authorities, Bouyid, cited above, § 118). 188. A requirement of promptness and reasonable expedition is also implicit in the obligation to carry out an investigation. In this connection the Court has considered it an essential requirement that investigations be promptly instituted and carried out. Regardless of the final outcome of the proceedings, the protection machinery provided for in domestic law must operate in practice within a reasonable time such as to conclude the examination on the merits of specific cases submitted to the authorities (see W. v. Slovenia, no. 24125/06, § 64, 23 January 2014; S.Z. v. Bulgaria, cited above, § 47; and V.C. v. Italy, no. 54227/14, § 95, 1 February 2018). 189. Moreover, the victim should be able to participate effectively in the investigation (see Bouyid, cited above, § 122, and B.V. v. Belgium, cited above, § 59). In addition, the investigation must be accessible to the victim to the extent necessary to safeguard his or her legitimate interests (see, in an Article 2 context, Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 303, ECHR 2011 (extracts)). 190. The investigation’s conclusions, meanwhile, must be based on thorough, objective and impartial analysis of all relevant elements (see A and B v. Croatia, cited above, § 108). Nevertheless, the nature and degree of scrutiny which satisfy the minimum threshold of the investigation’s effectiveness depend on the circumstances of the particular case. They must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work (see, mutatis mutandis, Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 234, 30 March 2016). 191. The requirement of effectiveness of the criminal investigation may in some circumstances include an obligation for the investigating authorities to cooperate with the authorities of another State, implying an obligation to seek or to afford assistance. The nature and scope of these obligations will inevitably depend on the circumstances of each particular case, for instance whether the main items of evidence are located on the territory of the Contracting State concerned or whether the suspects have fled there (see, from the standpoint of Article 2 of the Convention, Güzelyurtlu and Others v. Cyprus and Turkey [GC], no. 36925/07, § 233, 29 January 2019). This means that the States concerned must take whatever reasonable steps they can to cooperate with each other, exhausting in good faith the possibilities available to them under the applicable international instruments on mutual legal assistance and cooperation in criminal matters. Although the Court is not competent to supervise respect for international treaties or obligations other than the Convention, it normally verifies in this context whether the respondent State has used the possibilities available under these instruments (ibid., § 235, and the references cited therein). 192. Lastly, it is clear from the Court’s case-law that, in cases where children may have been victims of sexual abuse, compliance with the positive obligations arising out of Article 3 requires, in the context of the domestic proceedings, the effective implementation of children’s right to have their best interests as a primary consideration and to have the child’s particular vulnerability and corresponding needs adequately addressed (see A and B v. Croatia, cited above, § 111, and M.M.B. v. Slovakia, no. 6318/17, § 61, 26 November 2019; see also M.G.C. v. Romania, cited above, §§ 70 and 73). These requirements are also set out in other international instruments of relevance to the present case such as the Convention on the Rights of the Child, the Lanzarote Convention and the instruments adopted by the European Union (see paragraphs 124-27 and 135-37 above). More generally, the Court considers that in cases potentially involving child sexual abuse the procedural obligation under Article 3 of the Convention to conduct an effective investigation must be interpreted in the light of the obligations arising out of the other applicable international instruments, and more specifically the Lanzarote Convention. Application to the present case 193. The Court observes that the applicants, owing to their young age and their status as children left without parental care and placed in an institution, were in a particularly vulnerable situation. Against this background, the sexual abuse and violence to which they were allegedly subjected, if established, are sufficiently serious to come within the scope of application of Article 3 of the Convention (see also paragraph 82 of the Chamber judgment). The Court will therefore examine whether the respondent State complied in the present case with its obligations under that provision. (a) Positive obligation to put in place an appropriate legislative and regulatory framework 194. The Court notes at the outset that the applicants did not call into question the existence in the domestic law of the respondent State of criminal legislation aimed at preventing and punishing child sexual abuse. It observes in that regard that the Bulgarian Criminal Code punishes sexual abuse of minors under the age of 14 by persons over 14, even in the absence of force; that it lays down heavier penalties where sexual assault is committed against a minor; and that it prescribes penalties for specific offences such as the exposure of minors to sexual acts or the distribution of pornography (see paragraph 115 above). The provisions in question appear apt to cover the acts complained of by the applicants in the present case. 195. The Court further reiterates, in the light of the principles established in the judgments in O’Keeffe and Nencheva and Others (see paragraph 180 above), that States have a heightened duty of protection towards children who, like the applicants in the present case, are deprived of parental care and have been placed in the care of a public institution which is responsible for ensuring their safety and well-being, and who are therefore in a particularly vulnerable situation. The Court observes in that regard that the respondent State maintained that a number of mechanisms to prevent and detect ill-treatment in children’s facilities had been put in place. In their respective reports, the competent services which carried out checks at the orphanage in question stated that, pursuant to the rules in force, a number of measures had been taken to ensure the safety of the children living there. According to those reports, access to the institution by persons from outside was monitored by a caretaker and by security cameras and the children were in principle not left unsupervised by staff, in particular during the night and on trips outside the orphanage. The reports also stated that the children were seen regularly by an outside doctor and by the orphanage’s psychologist and that they had access to a telephone and to the number of the helpline for children in danger. Lastly, the Court notes that the respondent State had created a specialised institution, the State Agency for Child Protection (“the SACP”). This body was tasked, among other things, with carrying out inspections of children’s residential facilities on a periodic basis and in response to reports, and was empowered to take the appropriate steps to protect the children, or to apply to the competent authorities for the purpose of engaging the disciplinary or criminal responsibility of the persons involved (see paragraph 122 above). 196. The Court notes that the applicants contest the actual existence and the effectiveness of some of these measures and mechanisms. However, it observes that the information in the case file does not enable it to confirm or refute the factual findings contained in the reports of the relevant services which inspected the orphanage as regards the implementation of these measures. Moreover, the Court does not have in its possession any evidence to indicate that at the time of the events in Bulgaria there existed, as the applicants have suggested, a systemic issue related to paedophile sex tourism or sexual abuse of young children in residential facilities or in schools, such as to require more stringent measures on the part of the authorities (compare O’Keeffe, cited above, §§ 157-69, in which the Court found that the respondent State had had knowledge of a large number of cases of sexual abuse in primary schools and had not taken measures to prevent the risk of such abuse occurring). In view of the foregoing, the Court does not have sufficient information to find that the legislative and regulatory framework put in place by the respondent State in order to protect children living in institutions against serious breaches of their integrity was defective and thus in breach of the obligations arising out of Article 3 of the Convention in that regard. (b) Positive obligation to take preventive operational measures 197. As the Court observed above, the applicants in the present case were in a particularly vulnerable situation and had been placed in the sole charge of the public authorities. The management of the orphanage had an ongoing duty to ensure the safety, health and well-being of the children in their care, including the applicants. In these circumstances the Court considers that the obligation imposed on the authorities by Article 3 of the Convention to take preventive operational measures where they have, or ought to have, knowledge of a risk that a child may be subjected to ill ‑ treatment, was heightened in the present case and required the authorities in question to exercise particular vigilance. It must therefore ascertain whether, in the particular case, the authorities of the respondent State knew or ought to have known at the time of the existence of a real and immediate risk to the applicants of being subjected to treatment contrary to Article 3 and, if so, whether they took all the measures that could reasonably be expected of them to avoid that risk (see, mutatis mutandis, Osman, cited above, § 116). 198. The Court notes, on the basis of the documents produced by the Government, that the domestic investigations did not find it established that the director of the orphanage, another member of staff or any other authority had been aware of the abuse alleged by the applicants. According to the investigators’ reports, the psychologist and the general practitioner, who monitored the children in the orphanage on a regular basis, told the investigators that they had not detected any signs leading them to suspect that the applicants or other children had been subjected to violence or sexual abuse. As to the case of the young girl M., referred to by the applicants, the evidence in the file shows that it did not concern abuse committed in the orphanage (see paragraphs 56 and 113 in fine above). In these circumstances, and in the absence of evidence corroborating the assertion that the first applicant had reported abuse to the director, the Court does not have sufficient information to find that the Bulgarian authorities knew or ought to have known of a real and immediate risk to the applicants of being subjected to ill-treatment, such as to give rise to an obligation to take preventive operational measures to protect them against such a risk (see, conversely, Đorđević, cited above, §§ 144-46; V.C. v. Italy, cited above, §§ 99-102; and Talpis v. Italy, no. 41237/14, § 111, 2 March 2017). 199. In view of the foregoing considerations (see paragraphs 194-98 above), the Court finds that there has been no violation of the substantive limb of Article 3 of the Convention. (c) Procedural obligation to carry out an effective investigation 200. The Court observes that, leaving aside the question whether the first reports made to the Bulgarian authorities were sufficiently detailed, the fact is that, as early as February 2013, those authorities had received more detailed information from the Milan public prosecutor’s office concerning the applicants’ allegations that they had been subjected to sexual abuse in the orphanage in which they had been placed, perpetrated by other children but also by several adults, both members of staff and persons from outside (see paragraph 65 above). This information showed, firstly, that the applicants’ psychologists had deemed their allegations to be credible and, secondly, that the specialised association Telefono Azzurro, the Italian CAI and the Milan public prosecutor’s office had considered them sufficiently serious to warrant an investigation (see paragraphs 22, 62 and 65 above). 201. Accordingly, the Court considers that the Bulgarian authorities were faced with “arguable” claims, within the meaning of the Court’s case-law, of serious abuse of children in their charge, and that they had a duty under Article 3 of the Convention to take the necessary measures without delay to assess the credibility of the claims, clarify the circumstances of the case and identify those responsible (see M.M.B. v. Slovakia, cited above, § 66, and B.V. v. Belgium, cited above, § 66). 202. The Court observes that following the press coverage and after the Milan public prosecutor’s office had sent them the evidence gathered and the request made to the Bulgarian Ministry of Justice by the Italian CAI, the Bulgarian authorities took a number of investigative steps. Thus, the SACP and other social services carried out checks and the public prosecutor ordered the opening of a preliminary investigation. Without prejudging their effectiveness and their thoroughness (see paragraphs 210-23 below), it should be observed that these measures appear appropriate and apt, in principle, to establish the facts and identify and punish those responsible. Depending on their findings, these investigations were capable of leading to the opening of criminal proceedings against individuals suspected of committing acts of violence or sexual abuse against the applicants, but also to the adoption of other measures such as disciplinary action against any employees who may have failed in their duty to ensure the safety of the children in the orphanage, or appropriate measures in relation to children who may have committed punishable acts but were not criminally liable. The Court will therefore examine whether the investigations carried out were sufficiently effective from the standpoint of Article 3 of the Convention. 203. With regard, firstly, to the promptness and speediness expected of the authorities, the Court notes that an initial inspection ordered by the SACP was carried out at the orphanage as early as Monday 14 January 2013, that is, on the first working day following the Bulgarian press coverage of the article in L’Espresso. It observes in that connection that the informal contacts between the journalist from the Italian weekly magazine and an unidentified police officer (see paragraph 77 above) do not provide sufficient evidence that the applicants’ allegations had been brought to the authorities’ attention for the purposes of the Court’s case-law. Admittedly, the applicants’ father had written to the SACP as early as 16 November 2012 and the Nadja Centre had informed the SACP on 20 November 2012 of the father’s phone call. However, the Court notes that those messages did not mention the children’s names or the name of the orphanage in question and that the father’s message did not contain any specific allegations (see paragraphs 42-44 above). It is true that the SACP was empowered to carry out checks and in fact it took some steps to that end; however, these had not yet produced results by the time the article appeared in L’Espresso. In these circumstances, it seems difficult to criticise the authorities for the fact that a few weeks elapsed before an inspection was carried out. 204. The Court also notes that the SACP informed the prosecuting authorities swiftly of the disclosures made by the Italian weekly magazine and the findings of its first inspection. After receiving new and more specific evidence from the Milan public prosecutor’s office in January 2013, this time disclosing the names of individuals possibly implicated in the alleged abuse, the Veliko Tarnovo prosecutor’s office quickly ordered the opening of a police investigation and further checks by the child protection services. The Court considers that all these investigative measures were taken within a reasonable time given the circumstances of the case, bearing in mind, in particular, the longer time needed in an international cooperation context for information to be sent between the various services involved and for documents to be translated. The two cases opened by the Bulgarian prosecuting authorities were completed within a matter of months, in June and November 2013 respectively, and led the authorities to conclude that the evidence obtained did not constitute grounds for instituting criminal proceedings. 205. It is true that longer periods of time elapsed subsequently before the findings of the investigation were sent to the Italian authorities and the applicants’ parents. Nevertheless, the Court considers that these periods did not compromise the effectiveness of the investigation, which was completed in 2013 (see paragraphs 100-02 above). 206. In view of the above, the Court considers that there is no reason to call into question the promptness and expedition with which the Bulgarian authorities acted. 207. As to the applicants’ claim that the SACP lacked independence and objectivity, the Court observes that the SACP is an administrative authority specialised in child protection, empowered to monitor compliance with the regulations applicable in children’s residential facilities, to identify possible shortcomings in the arrangements to ensure the safety and care of those children, and to take steps to remedy such shortcomings. The Court notes that neither the SACP nor its employees were implicated in the case and, moreover, that there is no evidence in the case file capable of casting doubt on their independence. As to the SACP’s alleged lack of objectivity, the Court will address this issue below (see paragraph 224). 208. The applicants also claimed that the Bulgarian authorities had not kept their legal representatives adequately informed of the progress of the investigation. The Court observes in that connection that Article 31 § 1 (a), (c) and (d) of the Lanzarote Convention lays down a requirement to inform victims of their rights and the services at their disposal and, unless they do not wish to receive such information, of the progress of the proceedings and their right to be heard, while providing them, where necessary, with appropriate support services (see paragraph 127 above). It notes that in the present case the applicants’ parents did not lodge a formal complaint in Bulgaria and did not contact the prosecuting authorities in charge of the criminal investigation, which was instituted in response to the SACP’s reports despite the absence of a formal complaint, in line with the recommendations of the Lanzarote Convention. However, even though the applicants’ parents did not seek to be involved in the investigation, the Court finds it regrettable that the Bulgarian authorities did not attempt to contact them in order to provide them with the necessary information and support. Although the parents were indeed informed through the Italian authorities of the outcome of the criminal investigation (see paragraphs 100 ‑ 02 above), the fact that they were not provided with information and support in good time prevented them from taking an active part in the various proceedings, with the result that they were unable to lodge an appeal until long after the investigations had been concluded (see paragraphs 104 ‑ 09 above). 209. In so far as the applicants complained that the authorities had disclosed their names to the press, the Court notes that they did not submit a separate complaint in this regard, notably under Article 8 of the Convention, but instead maintained that this circumstance constituted an aspect of the ineffectiveness, as they saw it, of the investigation. In that regard, the Court does not have any information in its possession to indicate that the investigating authorities were responsible for such a disclosure or that it undermined the effectiveness of the investigation. Moreover, it observes that the SACP claimed to have taken certain measures in response to the complaint made by the applicants’ parents (see paragraph 64 above). 210. As to the thoroughness of the investigation, the Court reiterates at the outset that the procedural obligation to conduct an effective investigation is an obligation not of result but of means. Accordingly, the sole fact that the investigations in the present case did not result in specific persons being held criminally or otherwise liable is not sufficient to cast doubt on their effectiveness (see A and B v. Croatia, cited above, §§ 110 and 129, and M.P. and Others v. Bulgaria, no. 22457/08, § 111, 15 November 2011). 211. It observes in this connection that the competent domestic authorities took a number of investigative measures. In the course of the first inspection, carried out in January 2013 following the press disclosures concerning the case and the identification of the applicants, the child protection services carried out on ‑ site checks to verify the proper running of the orphanage and, according to the reports drawn up by the investigators in that regard, consulted the files, including the medical records, of the applicants and the other children who had lived there during the period in question. They interviewed the director of the orphanage, the other members of staff, the general practitioner and the mayor of the municipality, who was responsible for the running of the orphanage. They also interviewed the children living in the orphanage, conducting interviews – albeit in a format that was not adapted to the children’s age and level of maturity and without video-recording them – and asking the older children to complete an anonymous questionnaire (see, as regards in particular the need to conduct interviews with children in premises suitable for this purpose and to videotape their statements, Article 35 §§ 1 and 2 of the Lanzarote Convention, cited at paragraph 127 above). During the second set of inquiries, conducted in February 2013 by a team of experts from the different administrative authorities concerned and the police following receipt of the more detailed information sent by the Milan public prosecutor’s office, further documentary checks were carried out and several of the persons concerned were interviewed. In particular, the police questioned various men who might have been the alleged perpetrators named by the applicants and some of whom, like the driver Da., the caretaker K. and the heating technician I., were employees of the orphanage, while others, like the photographer D. and the electrician N., worked there occasionally. Interviews were also conducted with four children mentioned by the applicants who still lived in the orphanage, although, again, their statements were not video-recorded and the child B. had to be interviewed a second time by the police (see paragraphs 68 and 72 above, and Article 35 §§ 1 and 2 of the Lanzarote Convention). 212. The Court further notes that the authorities apparently neglected to pursue some lines of inquiry which might have proved relevant in the circumstances of the case, and to take certain investigative measures. 213. It reiterates in that connection that the authorities’ obligation to conduct a sufficiently thorough investigation is triggered as soon as they receive arguable allegations of sexual abuse. This obligation cannot be limited to responding to any requests made by the victim or leaving it to the initiative of the victim to take responsibility for the conduct of any investigatory procedures (see S.M. v. Croatia, cited above, § 314, and Y v. Bulgaria, cited above, § 93; see also S.Z. v. Bulgaria, cited above, § 50, in which the Court criticised the authorities for not following certain lines of inquiry, even though the applicant had not challenged an order discontinuing the proceedings in part, and M. and Others v. Italy and Bulgaria, no. 40020/03, § 104, 31 July 2012, in which the Court identified some witnesses whom the authorities should have questioned, although the issue had not been raised in the domestic proceedings). 214. Similarly, it should be emphasised that other international instruments such as the Convention on the Rights of the Child and the Lanzarote Convention have incorporated the standards of the Court’s case ‑ law in relation to violence against children, particularly as regards the procedural obligation to conduct an effective investigation (see Article 19 § 2 of the Convention on the Rights of the Child as interpreted by the Committee on the Rights of the Child, paragraphs 124-26 above, and also Articles 12-14 and 30-38 of the Lanzarote Convention read in conjunction with the Explanatory Report on that Convention, paragraphs 127-28 above). Under the terms of those instruments, whose applicability ratione temporis to the investigations in the present case has not been disputed (see paragraph 163 above), States are required to take the appropriate legislative and other measures to provide the necessary support for the child and those who have the care of the child, for the purposes of reporting, identification and investigation (Article 19 of the Convention on the Rights of the Child), with a view to assisting and advising them (Articles 11-14 of the Lanzarote Convention) while protecting their anonymity (Article 13 of the Lanzarote Convention, which also refers to reporting by means of confidential telephone and Internet helplines). The aim of these provisions is to ensure that investigations, while securing the defence rights of the accused, are conducted in the child’s best interests (Article 30 §§ 1, 4 and 5 of the Lanzarote Convention). The Lanzarote Convention also stipulates the need to enable the children concerned “to be heard, to supply evidence and to choose the means of having their views, needs and concerns presented, directly or through an intermediary, and considered” (Article 31 § 1 (c) of the Lanzarote Convention), including by allowing them to be accompanied by their legal representative. In order to keep the number of interviews to a minimum and thus avoid further trauma, the Lanzarote Convention also provides for the use of video-recording and recommends that such recordings should be accepted as evidence (Article 35). 215. In the present case the Court notes that the applicants’ accounts, as obtained and recorded by the psychologists from the RTC with the help of the applicants’ father, and the accounts they subsequently gave to the Italian public prosecutor for minors, which were also recorded on DVD, were deemed credible by the Italian authorities on the basis of the findings made by specialists, contained some precise details, and named individuals as the perpetrators of the alleged abuse. Most of the available documents were transmitted progressively to the Bulgarian authorities in the context of several requests for the opening of criminal proceedings made by the Milan public prosecutor via diplomatic channels and later by the Italian Ministry of Justice and the CAI (see paragraphs 62, 65 and 97 above). If the Bulgarian authorities had doubts as to the credibility of those allegations, in particular on account of certain contradictions observed in the applicants’ successive accounts or the possibility that their parents had influenced them, they could have attempted to clarify the facts by lodging a request to interview the applicants and their parents (for a similar situation, see G.U. v. Turkey, no. 16143/10, § 71, 18 October 2016). This would have made it possible to assess the credibility of the applicants’ allegations and if necessary to obtain further details concerning some of them. As professionals who had heard the children’s statements, the various psychologists who had spoken with the applicants in Italy would also have been in a position to provide relevant information. 216. It is true that it might not have been advisable for the Bulgarian authorities to interview the applicants – an option left open by the Italian prosecutor, who had advised against questioning the applicants further in view of the fact that the Bulgarian authorities might wish to interview them (see paragraph 92 above) – given the risk of exacerbating whatever trauma the applicants may have suffered, the risk that the measure would prove unsuccessful in view of the time that had passed since their initial disclosures, and the possibility that their accounts would be tainted by overlapping memories or outside influences. Nevertheless, the Court considers that in these circumstances the Bulgarian authorities should have assessed the need to request such interviews. The decisions given by the prosecuting authorities do not, however, contain any reasoning in this regard and the possibility of questioning the applicants appears not to have been considered, presumably for the sole reason that they were not living in Bulgaria. The Court observes in that regard that Article 38 § 2 of the Lanzarote Convention provides that victims of alleged abuse may make a complaint before the competent authorities of their State of residence and cannot be required to travel abroad. Article 35 of that Convention, for its part, provides that all interviews with the child should as far as possible be conducted by the same person and that, where possible, audiovisual recordings should be used in evidence. Hence, in the instant case the Bulgarian authorities, guided by the principles set out in the international instruments, could have put measures in place to assist and support the applicants in their dual capacity as victims and witnesses, and could have travelled to Italy in the context of mutual legal assistance or requested the Italian authorities to interview the applicants again. 217. The Court reiterates that, according to its case-law, in transnational cases the procedural obligation to investigate may entail an obligation to seek the cooperation of other States for the purposes of investigation and prosecution (see paragraph 191 above). The possibility of recourse to international cooperation for the purposes of investigating child sexual abuse is also expressly provided for by Article 38 of the Lanzarote Convention (see paragraph 127 above). In the present case, although the Milan public prosecutor declined jurisdiction on the grounds that there was an insufficient jurisdictional link with Italy in respect of the facts, it would have been possible for the applicants to be interviewed under the judicial cooperation mechanisms existing within the European Union in particular (see paragraph 137 above). 218. Even if they had not sought to interview the applicants directly, the Bulgarian authorities could at least have requested from their Italian counterparts the video-recordings made during the applicants’ conversations with the psychologists from the RTC and their interviews with the public prosecutor for minors (see paragraphs 16 and 82 above). Because of this omission in the investigation, which could very easily have been avoided, the Bulgarian authorities were not in a position to request professionals “trained for this purpose” to view the audiovisual material and assess the credibility of the accounts given (see Article 34 § 1 and Article 35 § 1 (c) of the Lanzarote Convention). 219. Similarly, as the applicants did not produce medical certificates, the Bulgarian authorities could, again in the context of international judicial cooperation, have requested that they undergo a medical examination which would have enabled certain possibilities to be confirmed or ruled out, in particular the first applicant’s allegations of rape. 220. The Court further notes that the applicants’ accounts and the evidence furnished by their parents also contained information concerning other children who had allegedly been victims of abuse and children alleged to have committed abuse. In that connection it observes that even if it was not possible to institute criminal proceedings against children under the age of criminal responsibility, some of the acts described by the applicants as having been perpetrated by other children amounted to ill ‑ treatment within the meaning of Article 3 of the Convention and violence within the meaning of Article 19 of the Convention on the Rights of the Child (see paragraph 124 above); hence, the authorities were bound by their procedural obligation to shed light on the facts alleged by the applicants. However, despite these reports, the investigations were limited to interviewing and issuing questionnaires to a few children still living in the orphanage, in an environment that was liable to influence their answers (as regards the conditions in which those interviews took place, see paragraph 211 above). Indeed, the Court notes that the Bulgarian authorities did not attempt to interview all of the children named by the applicants who had left the orphanage in the meantime (see, for instance, paragraphs 25 and 28 in fine above), whether directly or, if necessary, through recourse to international judicial cooperation mechanisms. 221. Furthermore, in view of the nature and seriousness of the alleged abuse, and as suggested by the applicants, investigative measures of a more covert nature such as surveillance of the perimeter of the orphanage, telephone tapping or the interception of telephone and electronic messages, as well as the use of undercover agents, should have been considered. Covert operations of this kind are expressly provided for in Article 30 § 5 of the Lanzarote Convention and are widely used across Europe in investigations concerning child abuse. In that regard the Court takes note of the Government’s argument that such measures were liable to infringe the right to privacy of the persons concerned and required judicial authorisation, based on the existence of credible evidence that an offence had been committed. It reiterates that considerations relating to compliance with the guarantees contained in Article 8 of the Convention may legitimately place restraints on the scope of investigative action (see Đorđević, cited above, § 139). Nevertheless, in the present case, such measures appear appropriate and proportionate, given the applicants’ allegations that an organised ring was involved and the fact that identifiable individuals had been named. Measures of this kind could have been implemented progressively, beginning with those having the least impact on individuals’ private lives, such as external surveillance of the entrances to and exits from the orphanage, and moving on, if necessary and on the basis of the relevant judicial authorisation, to more invasive measures such as telephone tapping, so as to ensure respect for the Article 8 rights of the individuals concerned, which must also be taken into account. 222. Although the Court cannot speculate as to the progress and outcome of the investigation had it been conducted differently, it nevertheless regrets the fact that, following the email sent by the applicants’ father to the SACP and the report made by the Nadja Centre in November 2012, the SACP merely sent the father a letter, written in Bulgarian, requesting further information (see paragraphs 42-44 above). It observes that the Lanzarote Convention encourages the use of dedicated Internet or telephone helplines as a means of reporting abuse, and does not make the opening of an investigation conditional on the victims’ statements. In the circumstances of the present case it was open to the SACP, within a framework guaranteeing anonymity to the potential victims, to request all the necessary details from the Nadja Centre, which was in contact with Telefono Azzurro; this would have made it possible to identify the orphanage in question and carry out covert investigative measures even before publication of the L’Espresso article in January 2013. While it is true, as pointed out by the Government, that the article in L’Espresso reported on in the Bulgarian press may have alerted the possible perpetrators of the abuse, the Court considers that the very fact of its publication may conceivably have prompted them to contact each other by telephone or via messaging, a possibility which serves to demonstrate the usefulness of such investigative measures. 223. It should also be observed that, despite the applicants’ allegations that the photographer D. had taken photographs and made videos, the investigators did not consider searching his studio, if necessary with the relevant court order, and seizing the media on which such images might have been stored. More generally, the seizure of telephones, computers, cameras, video-cameras or other media used by the persons specifically mentioned in the lists drawn up by the applicants’ father and sent to the Bulgarian authorities (see paragraphs 65 and 97 above) might have made it possible, if not to obtain proof of the abuse to which the applicants had allegedly been subjected several months previously, then at least to obtain evidence concerning similar abuse of other children. 224. The Court also notes that, despite the fact that three investigations were opened following the publication of the press articles and the requests from the Italian authorities, the Bulgarian authorities confined their efforts to questioning the people present in the orphanage or in the vicinity, and closed the case on the sole basis of that investigative method, which was reiterated in different forms in each of the three investigations. In that connection the Court considers it unacceptable that even before the findings of the SACP’s first inspection of the orphanage on 14 and 15 January 2013 – which was very limited in terms of the investigative acts carried out – had been recorded in a written report and notified to the judicial authority, the President of the SACP, speaking on television, accused the applicants’ parents of slander, manipulation and inadequate parenting (see paragraph 58 above). A few days later, when the outcome of the criminal investigation was still not known, a group of MPs who visited the orphanage adopted a similar attitude (see paragraph 59 above). Such statements inevitably undermine the objectivity – and hence the credibility – of the inquiries conducted by the SACP and of the institution itself (see paragraph 207 above). 225. It is of course undeniable that the Bulgarian authorities, by conducting the three investigations in question, formally responded to the requests of the Italian authorities and, indirectly, to those of the applicants’ parents. However, the Court would stress that, from the first statements made by the President of the SACP on 16 January 2013 until the final order issued by the public prosecutor’s office at the Supreme Court of Cassation on 27 January 2016 following communication of the present application by the Court (see paragraph 111 above), the reasons given for the authorities’ decisions are indicative of the limited nature of the investigations carried out. 226. Thus, the first investigation was closed on the sole basis of the SACP’s report (see paragraphs 54 and 60 above). In the second and third investigations, the authorities, without having heard evidence from the applicants directly or even having viewed the video-recordings, attached decisive weight to the explanations offered by the persons who had been questioned and to the contradictions in the applicants’ remarks, particularly on the subject of the names and roles of the individuals they had named, although some of these inconsistencies, notably with regard to the name E., were easily explained (see paragraphs 32, 74 and 105-09 above). The final order issued on 27 January 2016 by the highest-ranking prosecutor’s office posited that the applicants had made allegations of abuse because they “[had been] fearful of being rejected by their adoptive parents, who disapproved strongly of their immoral behaviour ... [and had] sought to inspire pity ... by relating incidents that had not actually occurred in which they were the victims of crimes”. However, that order – which appears to have been based on the statement made by the President of the SACP a few hours after the commencement of the investigations three years previously (see paragraphs 207 and 224 above) – gave no details as to the factual circumstances on which these conclusions were based. 227. In the Court’s view, an analysis of the information gathered and of the reasons given for the decisions reveals shortcomings which were liable to impair the effectiveness of the investigation in the present case. The reasons given do not appear to have resulted from a careful study of the evidence obtained and appear to show that, rather than clarifying all the relevant facts, the investigating authorities sought to establish that the applicants’ allegations were false by highlighting the inaccuracies which they contained, in particular regarding the name of the director and the fact that an individual named N. had not been employed in the orphanage but had worked as an outside contractor. 228. In the Court’s view, all these considerations suggest that the investigating authorities, who did not make use, in particular, of the available investigation and international cooperation mechanisms, did not take all reasonable measures to shed light on the facts of the present case and did not undertake a full and careful analysis of the evidence before them. The omissions observed appear sufficiently serious for it to be considered that the investigation carried out was not effective for the purposes of Article 3 of the Convention, interpreted in the light of the other applicable international instruments and in particular the Lanzarote Convention. It follows that there has been a violation of the procedural limb of Article 3. APPLICATION OF ARTICLE 41 OF THE CONVENTION 229. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 230. The applicants claimed 1,600,000 euros (EUR) each in respect of non-pecuniary damage. The Government considered the applicants’ claims excessive and asked the Court to reject them. 231. The Court considers that the applicants have suffered non ‑ pecuniary damage as a result of the procedural violation of Article 3 of the Convention found in the present case. Having regard to the circumstances of the case, it awards each of the applicants EUR 12,000 under this head. Costs and expenses 232. As the applicants did not submit a claim for reimbursement of their costs and expenses, no award is to be made under that head. Default interest 233. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court found that the applicants, owing to their young age and their status as children left without parental care and placed in an institution, had been in a particularly vulnerable situation, and that the sexual abuse and violence to which they had allegedly been subjected, if established, had been sufficiently serious to come within the scope of application of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. In the present case, the Court held that there had been no violation of the substantive limb of Article 3, finding, in particular, that it did not have sufficient information to conclude that the Bulgarian authorities knew or ought to have known of a real and immediate risk to the applicants of being subjected to ill-treatment, such as to give rise to an obligation to take preventive operational measures to protect them against such a risk. The Court held, however, that there had been a violation of the procedural limb of Article 3. In this respect, it considered in particular that the investigating authorities, who had not made use of the available investigation and international cooperation mechanisms, had not taken all reasonable measures to shed light on the facts of the present case and had not undertaken a full and careful analysis of the evidence before them. In the Court’s view, the omissions observed appeared sufficiently serious for it to be considered that the investigation carried out had not been effective for the purposes of Article 3 of the Convention, interpreted in the light of the other applicable international instruments and, in particular, the Council of Europe “Lanzarote Convention”6. |
819 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | II. RELEVANT DOMESTIC LAW 20. Section 13(1) and (4) of the Seamen ’ s Pension Fund Act (Law no. 49/1974 – “the 1974 Act”) read: “ ( 1 ) Each Fund member who has paid premiums to the Fund for the past three calendar years, and for at least six of the past twelve months, shall be entitled to a disability pension if he suffers a loss of fitness for work that the senior consulting physician assesses at 35% or more. This disability assessment shall be based mainly on the Fund member ’ s incapacity to do the job in which he was engaged and on which his membership of the Fund is based. Despite being disabled, no person shall be entitled to a disability pension while retaining full wages for the job that he used to do, or while receiving equally high wages for another job which grants pension rights, and the pension shall never be higher than the equivalent of the loss of income demonstrably incurred by the Fund member as a result of his disability. ... ( 4 ) A disabled person who applies for a disability pension from the Fund or receives such a pension shall be obliged to provide the Board of the Fund with all the information on his health and earned income that is necessary to determine his right to receive the pension.” Under section 15(3) of the 1974 Act the applicant was eligible to receive child benefits. 21. Section 5 of Law no. 44/1992 (“the 1992 Act”) read: “ For the first five years after the commencement of this Act, the disability assessment of disability pensioners who already receive benefit due to loss of working capacity before the commencement of the Act shall be based on their incapacity for the job in which they were previously engaged and on which their membership of the Fund is based, but after that time it shall be based on their incapacity for work in general. Furthermore, the change in the child benefit entitlement of the recipients of disability pensions resulting from section 8 of this Act shall not take effect until five years after the commencement of the Act. ” 22. The 1974 Act, as amended by the 1992 Act, was replaced by Law no. 94/1994 (“the 1994 Act”) when it came into force on 1 September 1994. All the provisions covering the basis of disability pensions and child benefit payments were removed from the Act and included in the Regulations on the Seamen ’ s Pension Fund, which also came into force on 1 September 1994. According to the Government, this did not affect the applicant specifically, since the interim provision of the 1992 Act still applied to his situation until 1 July 1997. The applicant contended that the interim provision had been repealed on 1 September 1994. THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 AND OF ARTICLE 14 OF THE CONVENTION 23. The applicant complained that the discontinuation of his disability pension had given rise to a violation of Article 1 of Protocol No. 1, taken on its own and in conjunction with Article 14 of the Convention. Those Articles provide: Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” Article 14 of the Convention “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 24. The Government disputed the applicant ’ s allegation and invited the Court to find that no violation had occurred in the present case. A. Alleged violation of Article 1 of Protocol No. 1 1. The applicant 25. The applicant argued that his pension rights fell within the scope of protection of Article 1 of Protocol No. 1 and that the national measures depriving him of these rights entailed an interference with the peaceful enjoyment of his possessions within the meaning of this provision. 26. The applicant further submitted that, contrary to former Article 67 (currently Article 72) of the Icelandic Constitution, the deprivation of his pension rights had not been based on any clear and unequivocal national legal provision. Indeed, the measure had been taken without any legal authority. The retroactive application of the new rules had been founded on an interim provision which had been repealed three years before the authorities decided to cease payment of his pension in June 1997. Thus, the interference with the peaceful enjoyment of his possessions had been unlawful. 27. In the applicant ’ s view, there was no reasonable relationship between the interference and the interests pursued. According to figures supplied by the Government, at the material time there were 689 persons receiving disability pensions from the Pension Fund. The applicant was one of 54 individuals who had lost their entitlement in similar circumstances, a tiny group constituting only about 0.1% of the Fund ’ s total membership, which last year comprised 38,584 members. On any analysis, the restrictions imposed affected only a very small minority and could by no means be regarded as having been of any significant financial advantage to the Fund or as having served the purpose of the Fund. 28. No comparable restrictions had been imposed on the pension rights of other Fund members. The contested measure could not be described as a general measure aimed at an unspecified group of persons in accordance with the principle of equality. In Iceland there was no legal tradition of depriving active pensioners of annuity rights without the payment of compensation. 29. The applicant refuted the Government ’ s suggestion that his disability rating of 100% in terms of loss of fitness for work as a seaman did not affect his chances of earning income to support himself through work on shore. The applicant stated that he had been employed on shore since 1978, but as his disability had substantially reduced his employment possibilities, he had been employed in office work for a transport company on a salary which was only a fraction of what he would have earned as a seaman. Even if he had continued to receive a pension, his total income would have been considerably less than he would have earned as a seaman. 30. The applicant stressed that his income was irrelevant. As a result of the impugned measures, he had been totally deprived of his disability pension entitlements. This would have happened even if he had been unemployed. His subsistence had become completely dependent on his maintaining his office job on shore. 31. Finally, the applicant strongly objected to the Government ’ s contention that he had not suffered any financial loss in that, by reason of the level of his income from employment, the payment of a disability pension would normally have been discontinued under section 13 of the 1974 Act according to the rules operated by the Fund. However, to the applicant ’ s knowledge no such rules had been in force and accessible at the material time. Indeed, any such rules would have been inconsistent with the applicable legislation. The fact was that he would have received a much higher salary had he continued to work as a seaman. He had neither retained a full salary for the job that he used to do nor an equally high salary for another job. This was amply demonstrated by the figures he had presented to the Court and to which the Government had not objected. 2. The Government 32. The Government disputed the applicant ’ s submissions. It was clear that the legislative amendments in question were the logical and necessary consequences of the financial position of the Pension Fund at the material time. Their aim was to serve the general interest of its members and the amendments had been made in accordance with the law. The Government emphasised that the decision to adopt new criteria for the assessment of disability applied in an objective manner to all those who were in the same position. The changes made had been instigated by the Fund ’ s Board, composed of representatives of employers and employees, including those of the employees ’ organisation of which the applicant was a member. The purpose of a disability pension paid from the Fund was indisputably to provide financial assistance to those who had had their working capacity reduced and who had need of special assistance in order to ensure their subsistence. In instances where this mattered, recipients of a disability pension would be given time to adapt themselves to changed conditions, notably through the provision of retraining, irrespective of whether they had started to receive a disability pension before or after the entry into force of the new legislation. 33. The Government accepted that the impugned measure constituted an interference with the applicant ’ s peaceful enjoyment of his possessions for the purposes of the first paragraph of Article 1 of Protocol No. 1. However, they maintained that the interference was justified under the second paragraph of that Article. The measure was provided for by law, it was in accordance with the general interests of the community and there was a reasonable relationship of proportionality between the interference and the interests pursued. 34. The Government stressed that the applicant retained his full right to receive a retirement pension from the Pension Fund. 35. The right to disability pension benefits should be subject to the ordinary considerations of compensation, namely the basic principle in the law on liability that the claimant should receive full compensation, but not more. It had been noted that a considerable number of former seamen who had paid premiums to the Pension Fund and who were no longer considered capable of working at sea due to disability had been receiving disability pensions from the Fund, notwithstanding the fact that they were in full employment on shore. The applicant was such a person. He was in full employment on shore and thus earned income to support himself, but under the former rules he also received a full disability pension. 36. After it had been established by the methods prescribed by law, according to section 8 of the 1974 Act, that there was an operational deficit in the Seamen ’ s Pension Fund, the first obligation of the Board of the Fund was to reduce or stop expenditure such as the payment of disability pensions to those who had not suffered any loss of income through their loss of fitness for work, as they were demonstrably able to perform work other than as seamen. These measures, which curtailed the applicant ’ s rights to disability benefit, were no more extensive than was necessary in terms of the aim they were intended to achieve. Admittedly they only curtailed the rights of those Fund members who were no longer able to work as seamen, but this was done in such a way that this group had the full possibility of earning income on shore, and the majority of them were in fact already earning such income. 37. The Government strongly contested the applicant ’ s view that he could lawfully expect to receive an undiminished disability pension from his pension fund for the next twenty years in addition to the income he received from full employment, and that his financial plans for the future had been based on this premise. They pointed out that at no time was the applicant ’ s right unconditional in the way he maintained, and the 1974 Act gave him no grounds for harbouring any such expectations. Even if no amendments had been made to that Act, the applicant had already become ineligible to receive a pension, having regard to the terms of the condition stated in the final sentence of section 13(1). This clearly stated that no person was entitled to a disability pension if he received equally high wages for another job which granted pension rights, and that the pension could never be higher than the equivalent of the loss of income demonstrably incurred by the Fund member as a result of his disability. During the period until 1 July 1997 when it was making pension payments to him, the Seamen ’ s Pension Fund had no information about the applicant ’ s employment earnings, despite pension beneficiaries ’ duty under section 13 (4) of the Act to provide such information. At the time when the Act was in force, the Pension Fund did not actively monitor whether disability pensioners received wages from paid employment at the same time as drawing compensation payments; for example, disability pensioners were not required to submit tax returns to the Fund. In all likelihood, the applicant ’ s right to receive compensation had actually expired before 1 July 1997; judging by the information submitted by the applicant regarding his income as a head of department at Samskip after 1 July 1997 ( see his letter to the Court dated 12 June 2003), it could be stated with certainty that he was no longer entitled after that date. 38. The Government rejected the view that other Fund members had been treated differently from the applicant when it came to the restriction of their benefit rights, thus resulting in a violation of Article 1 of Protocol No. 1 taken in conjunction with Article 14 of the Convention. There were many Fund members in a similar or identical position to the applicant. The Government stressed that Fund members already in receipt of disability pensions had certainly not been singled out as a small and isolated group of beneficiaries who were expected to shoulder the entire burden of the Fund ’ s financial difficulties. Many other changes of various types had been made to the laws and regulations of the Fund as part of its measures to put its finances in order, the 1992 Act being a part of these, and they affected all Fund members in one way or another. Thus, in 1994, the 1994 Act and the regulations issued under it had made considerable changes to the rights of both current and potential beneficiaries of the Fund. The rights of Fund members aged 60 to 65 to receive old- age pensions had been altered, and considerably reduced. These changes also brought the rules of the Seamen ’ s Pension Fund on old- age pensions into line with those of other Icelandic pension funds, where entitlement to draw an old- age pension generally began at the age of 65. It was clear from the figures presented (see paragraph 13 above) that the new rules, which were based on general, objective and, not least, completely relevant considerations, had affected nearly 30% of all the members of the Fund who had acquired active disability pension rights prior to the commencement of the 1992 Act, and had had exactly the same consequences for all those who were in a comparable position. 3. The Court ’ s assessment 39. The Court reiterates that Article 1 of Protocol No. 1, which guarantees in substance the right of property, comprises three distinct rules ( see James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, pp. 29-30, § 37). The first rule, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second, in the second sentence of the same paragraph, covers deprivation of possessions and subjects it to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled, among other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to the peaceful enjoyment of property, are to be construed in the light of the general principle laid down in the first rule. According to the Convention institutions ’ case-law, the making of contributions to a pension fund may, in certain circumstances, create a property right and such a right may be affected by the manner in which the fund is distributed ( see Bellet, Huertas and Vialatte v. France ( dec .), nos. 40832/98, 40833/98 and 40906/98, 27 April 19 99, and Skorkiewicz v. Poland (dec.), no. 39860/98, 1 June 1999 ). Moreover, the rights stemming from payment of contributions to social insurance systems are pecuniary rights for the purposes of Article 1 of Protocol No. 1 ( see Gaygusuz v. Austria, judgment of 16 September 1996, Reports of Judgments and Decisions 199 6-IV, p. 1142, §§ 39-41). However, even assuming that Article 1 of Protocol No. 1 guarantees benefits to persons who have contributed to a social insurance system, it cannot be interpreted as entitling that person to a pension of a particular amount ( see Müller v. Austria, no. 5849/72, Commission ’ s report of 1 October 19 75, Decisions and Reports 3, p. 25, and Skorkiewicz, cited above ). An important consideration in the assessment under this provision is whether the applicant ’ s right to derive benefits from the social insurance scheme in question has been infringed in a manner resulting in the impairment of the essence of his pension rights ( see Domalewski v. Poland ( dec. ), no. 34610/97, ECHR 1999-V ). 40. In the instant case, the applicant had contributed to the Pension Fund from 1969 to 1981 under a system according to which he did not acquire any claim to an identifiable share in the Fund but only what could be characterised as a right to receive a pension subject to the fulfilment of certain conditions. It has not been contended that the measure amounted to a deprivation or a means of controlling the use of property. However, the parties agree that the termination of the applicant ’ s disability pension amounted to an interference with his right to the peaceful enjoyment of his possessions for the purposes of the first sentence of the first paragraph of Article 1 of Protocol No. 1. The Court sees no reason to hold otherwise. However, the Government disputed the applicant ’ s contention that the application of the new disability criteria to him was unlawful, discriminatory and disproportionate to the community interests pursued. As regards the issue of lawfulness, the Court notes that the applicant ’ s argument was rejected by the Icelandic Supreme Court and sees no need to consider that aspect of the matter any further. It is the issue of proportionality which lies at the heart of the case under the Convention. Accordingly, it will determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual ’ s fundamental rights. In this connection, regard will be had to whether unjustified differential treatment occurred in the instant case. Whereas the Government viewed the case from a broad angle as raising issues of fundamental principles pertaining to the entire Icelandic pension system, the Court will confine its examination to the concrete circumstances of the applicant ’ s case. 41. At the outset the Court takes note of the Government ’ s argument, based on information provided by the Pension Fund on 14 July 2003, that even if no amendment had been made to the Seamen ’ s Pension Fund Act 1974, the applicant had in all likelihood already become ineligible for a pension before 1 July 1997 by virtue of the last sentence of section 13(1) of that Act and thus did not have any legal ground for expecting to receive a full disability pension until the age of 65. The argument was not reviewed by the national courts, but was apparently developed for the first time at the merits stage of the proceedings under the Convention and was rejected by the applicant. The Court is not convinced by these submissions, which are based on facts that are both uncertain and unclear, and will not attach any weight to them in its examination of the case. In any event, whether the applicant, as argued by the Government, could have forfeited his entitlement to a disability pension under a different legal ground is a matter that falls outside the scope of the case, which concerns the effects of the legislative amendments that came into force on 1 July 1997. 42. Although the national authorities ’ decision to discontinue payment of the applicant ’ s disability pension was taken without reference to his income from his office job, the Court will have regard to this income in its examination of the question of proportionality under Article 1 of Protocol No. 1. In that connection, the Court notes that the introduction of the new pension rules had been prompted by legitimate concerns about the need to resolve the Fund ’ s financial difficulties. Furthermore, the changes made to disability entitlements were based on objective criteria, namely, an obligatory renewed medical assessment of each disability pensioner ’ s ability to carry out not just the same work he had performed before his or her disability but work in general ( see Bucheň v. the Czech Republic, no. 36541/97, § 75, 26 November 2002 ), the standard that already applied in other sectors in Iceland. According to the Government ’ s submission, the new rules on disability assessment were intended to ensure that a considerable number of former seamen did not receive disability pensions from the Fund despite being in full employment on shore. The applicant fell within that group of disability pension recipients. One hundred and four – over 30% – of the 336 persons who were in receipt of a disability pension on 1 July 1997 experienced a substantial reduction in their entitlements. Sixty of these experienced a reduction ranging from 50 % to 100 %. The Court is also mindful of the Government ’ s submission that, concurrently with those changes, the Pension Fund ’ s old- age pensions had also been considerably reduced by virtue of the 1994 Act. 43. However, the Court is struck by the fact that the applicant belonged to a small group of 54 disability pensioners (some 15% of the 336 persons mentioned above) whose pensions, unlike those of any other group, were discontinued altogether on 1 July 1997. The above-mentioned legitimate concerns about the need to resolve the Fund ’ s financial difficulties seem hard to reconcile with the fact that after 1 July 1997 the vast majority of the 689 disability pensioners continued to receive disability benefits at the same level as before the adoption of the new rules, whereas only a small minority of disability pensioners had to bear the most drastic measure of all, namely the total loss of their pension entitlements. In the Court ’ s view, although changes made to pension entitlements may legitimately take into account the pension holders ’ needs, the above differential treatment in itself suggests that the impugned measure was unjustified for the purposes of Article 14 of the Convention, which consideration must carry great weight in the assessment of the proportionality issue under Article 1 of Protocol No. 1. 44. The discriminatory character of the interference was compounded by the fact that it affected the applicant in a particularly concrete and harsh manner in that it totally deprived him of the disability pension he had been receiving on a regular basis for nearly twenty years. He had joined the Fund in 1969 and had contributed to it for nearly ten years when he had his accident, which left him 100 % unfit for work as a seaman. Under section 13 of the Seamen ’ s Pension Fund Act 1974, disability was to be assessed mainly on the basis of incapacity to perform the job occupied, and to which Fund membership related, at the time of the injury. According to the Icelandic Supreme Court, there was an unequivocal right to have disability so assessed. In the Court ’ s view, the applicant could validly plead an individual legitimate expectation that his disability would continue to be assessed on the basis of his incapacity to perform his previous job. Regard should be had to the fact that, under the former rules, gainful employment was not incompatible with a Fund member ’ s receipt of a full disability pension, provided that that pension did not exceed the member ’ s loss of income. Understandably, after becoming unfit for work as a seaman, and encouraged by the pension system to which he had contributed over a number of years, the applicant, like many other disability pensioners, had pursued alternative employment whilst at the same time receiving a disability pension. It is significant that, when the applicant lost his pension on 1 July 1997, this was not due to any circumstance of his own but to changes in the law altering the criteria for disability assessment. Although he was still considered 25% incapacitated to perform work in general, the applicant was deprived of the entirety of his disability pension entitlements, which at the time constituted no less than one - third of his gross monthly income, as can be deduced from the figures submitted to the Court. 45. Against this background, the Court finds that, as an individual, the applicant was made to bear an excessive and disproportionate burden which, even having regard to the wide margin of appreciation to be enjoyed by the State in the area of social legislation, cannot be justified by the legitimate community interests relied on by the authorities. It would have been otherwise had the applicant been obliged to endure a reasonable and commensurate reduction rather than the total deprivation of his entitlements (see Müller and Skorkiewicz, both cited above, and, mutatis mutandis, James and Others, cited above, p. 36, § 54, and Lithgow and Others v. the United Kingdom, judgment of 8 July 1986, Series A no. 102, pp. 44-45, § 121 ). Accordingly there has been a violation of Article 1 of Protocol No. 1 in the applicant ’ s case. B. Alleged violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 46. The applicant further alleged a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1, relying essentially on the considerations underlying his complaint under the latter provision taken on its own. 47. The Court, having already taken those arguments into account in its examination of the complaint under Article 1 of Protocol No. 1, finds that no separate issue arises under Article 14 of the Convention and that, accordingly, it is unnecessary to examine the matter under these provisions taken together. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 48. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1. Pecuniary damage 49. The applicant sought compensation for the pecuniary damage he had suffered as a result of the termination of his disability pension on 1 July 1997. He claimed sums totalling 39,524,772 Icelandic krónur (ISK) ( currently corresponding to approximately 450,000 euros (EUR) ), broken down as follows : (a ) ISK 12,637,600 (approximately EUR 143,000) for the loss of his disability pension entitlements, of which (i) ISK 9,373,300 were for the loss of his own pension (ISK 61,356 per month until the age of 65), and ( ii ) ISK 3,264,300 were for the loss of child benefits in respect of his three children ( see paragraph 17 above); ( b ) default interest in respect of the above from 1 July 1997 until the date of payment, which on 26 November 2003 amounted to ISK 26,887,172 (approximately EUR 305,000). 50. The Government disputed the above claim, arguing that, irrespective of the legislative changes that had taken effect on 1 July 1997, the applicant ’ s disability pension entitlements ought to have been discontinued before that date anyway, because of his income from his office job (last sentence of section 13(1) of the Seamen ’ s Pension Fund Act 1974). 51. The Court is satisfied that the applicant has suffered pecuniary damage as a result of the violation found and considers that he should be awarded compensation in an amount reasonably related to any prejudice suffered. It cannot award him the full amount claimed, precisely because a reasonable and commensurate reduction in his entitlement would have been compatible with his Convention rights (see paragraph 4 5 above). Deciding in the light of the figures supplied by the applicant and equitable considerations, the Court therefore awards him EUR 6 0,000 in respect of item (a) above and EUR 15 ,000 for item (b), plus any tax that may be chargeable on those amounts. 2. Non-pecuniary damage 52. The applicant further asked the Court to award him ISK 3,000,000 (currently corresponding to approximately EUR 34,000) in compensation for non-pecuniary damage on account of the suffering and distress caused by the discriminatory deprivation of his disability pension entitlements and the financial insecurity in which he had been left. 53. The Government asked the Court to reject any claim for non-pecuniary damage. 54. The Court considers that the applicant must have suffered anxiety and distress as a result of the violation that cannot be compensated solely by the Court ’ s finding in his case and awards him EUR 1,500 under this head. B. Costs and expenses 55. The applicant requested the reimbursement of legal fees and expenses incurred during the period from 15 January 1997 to 25 November 2003, totalling ISK 3, 610,392 (currently corresponding to approximately EUR 41, 0 00), broken down as follows : (a ) ISK 2, 837, 100 for his lawyer ’ s work ( 111. 25 hours before the District Court, 67 hours before the Supreme Court and 111. 25 hours before the European Court, at ISK 9,800 per hour); (b) ISK 6 95,090 in value-added tax (VAT) in respect of the above; (c) ISK 78,202 in miscellaneous expenses. 56. The Government did not dispute the above claim. 57. The Court is not convinced that all the costs were necessarily incurred. Deciding on an equitable basis, it awards the applicant EUR 20 ,000 (inclusive of VAT). C. Default interest 58. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 1 (protection of property) of Protocol No. 1. It observed that the legitimate concern to resolve the Fund’s financial difficulties seemed hard to reconcile with the fact that the vast majority of the 689 disability pensioners had continued to receive disability benefits at the same level as before the adoption of the new rules, while 54 persons, including the applicant, had to bear the total loss of their pension entitlements. This was an excessive and disproportionate burden, which could not be justified by the legitimate community interests relied on by the authorities. It would have been otherwise had the applicant been obliged to endure a reasonable and commensurate reduction rather than the total deprivation of his entitlements. |
317 | Prevention of terrorism | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Criminal Code (Law no. 5237) 42. Under Article 7 § 2 of the Criminal Code, in case of a difference between the legal provisions in force at the date of commission of an offence and those in force after that date, the provision which is more favourable is applied to the offender. 43. At the material time, Article 220 of the Criminal Code read as follows: Establishing organisations for the purpose of criminal activity “ Article 220 - (1) Anyone who establishes or directs organisations for the purpose of criminal activity shall be liable to imprisonment of between two and six years provided that the structure of the organisation, the number of members, and the quantity of equipment and supplies are sufficient to commit the intended crimes. (2) Anyone who becomes a member of an organisation established for the purpose of criminal activity shall be liable to imprisonment of between one and three years. (3) If the organisation is armed, the sentences stated above shall be increased by a proportion of between one quarter and one half. (4) Any crime committed within the framework of the organisation ’ s activities shall be punished separately. (5) The heads of the organisations shall also be sentenced as the perpetrators of all crimes committed within the framework of the organisation ’ s activities. (6) Anyone who commits a crime on behalf of the (illegal) organisation, even if they are not a member of that organisation, shall also be punished for being a member of the organisation. (7) Anyone who aids and abets an (illegal) organisation knowingly and intentionally, even if they do not belong to the hierarchical structure of the organisation, shall be punished as a member of the organisation. (8) Anyone who makes propaganda for the organisation or its objectives shall be punished by imprisonment of between one and three years. If the said crime is committed through the media and press the sentence shall be increased by one half.” Paragraphs 6 and 7 of Article 220 were amended by Law no. 6352, which entered into force on 2 July 2012, as follows: “ (6) Anyone who commits a crime on behalf of the (illegal) organisation, even if they are not a member of that organisation, shall also be punished for being a member of the organisation. The penalty to be imposed for membership may be reduced by up to half. (7) Anyone who aids and abets an (illegal) organisation knowingly and intentionally, even if they do not belong to the hierarchical structure of the organisation, shall be punished as a member of the organisation. The penalty to be imposed for membership may be reduced by up to two thirds depending on the nature of the assistance .” Article 220 § 6 was further amended by Law no. 6459, which entered into force on 11 April 2013. It currently reads as follows: (6) Anyone who commits a crime on behalf of the (illegal) organisation, even if they are not a member of that organisation, shall also be punished for being a member of the organisation. The penalty to be imposed for membership may be reduced by up to half. This paragraph shall be applicable only for armed organisations. 44. Article 314 of the Criminal Code reads as follows: Armed organisations “ Article 314 - (1) Anyone who forms an armed organisation to commit the crimes listed in the fourth and fifth sections of this chapter, or commands such an organisation, shall be liable to a term of imprisonment of between ten and fifteen years. (2) Anyone who becomes a member of an (armed) organisation mentioned in the first paragraph of this Article shall be liable to a term of imprisonment of between five and ten years. (3) Other provisions relating to the crime of forming an organisation for the purpose of criminal activity are also applicable for this crime .” 45. Article 300 § 1 of the Criminal Code reads as follows: Denigration of symbols of the sovereignty of the State “ Article 300 - (1) Anyone who publicly tears, burns or otherwise denigrates the Turkish flag shall be sentenced to a term of imprisonment of between one and three years. This provision shall apply to all signs bearing the white crescent and star on a red ground described in the Constitution as a symbol of the sovereignty of the State of the Republic of Turkey ... ” 46. Article 265 § 1 of the Criminal Code reads as follows: Resistance with a view obstructing the execution of duties “ Article 265 - (1) Anyone who uses methods of violence or threats against a public officer with a view to obstructing him or her in the execution of his or her duties shall be liable to imprisonment of between six months and three years. ” B. The Meetings and Demonstration Marches Act (Law no. 2911) 47. According to section 23(b) of the Meetings and Demonstration Marches Act (Law no. 2911), in force at the material time, meetings or demonstration marches during which the demonstrators or the participants bear, inter alia, firearms, explosives, cutting and perforating tools, stones, bats, iron or rubber bars, wires, chains, poisons, gas or fog materials, were considered to be “ unlawful meetings and demonstration marches ”. 48. Section 33 (c) of Law no. 2911 provided as follows, before it was amended by Law no. 6008 on 25 July 2010 : “ Section 33 ... ( c) Persons who show resistance with weapons or materials listed in section 23(b) while being dispersed [during meetings and demonstration marches] shall be liable to a term of imprisonment of between five and eight years ... ” Following the amendments introduced by Law no. 6008, section 33 of Law no. 2911 read, in so far as relevant, as follows: “ Persons who take part in meetings and demonstration marches while carrying weapons or materials listed in section 23(b) shall be liable to a term of imprisonment of between six months and three years ... ” 49. Following the amendments introduced by Law no. 6008, section 32(1) and (2) of Law no. 2911 currently reads as follows: “Persons taking part in unlawful meetings or demonstration marches who continue not to disperse despite warnings or use of force shall be liable to a term of imprisonment of between six months and three years. If the offender is one of the organisers of the meeting or the demonstration march, the sentence shall be increased by half. Persons who resist the security forces by methods of violence or threats despite warnings or use of force shall also be punished for committing the crime proscribed by Article 265 of the Criminal Code (Law no. 5237) of 26 September 2004. ” 50. By Law no. 6008 a new provision, section 34/A, was added in Law no. 2911. Section 34/A reads as follows: “ Section 2(2) of the Prevention of Terrorism Act (Law no. 3713) shall not be applicable to children who commit the crime of resistance during unlawful meetings and demonstration marches or who commit the crime of propaganda during meetings and demonstration marches in which they take part.” C. The Prevention of Terrorism Act (Law no. 3713) 51. At the material time, section 7(2) of the Prevention of Terrorism Act read as follows: “Any person who disseminates propaganda in support of a terrorist organisation shall be liable to a term of imprisonment of between one and five years...” 52. Section 2(2) of Law no. 3713 which is referred to in section 34/A of Law no. 2911 ( see paragraph 50 above) reads as follows: “Persons who commit crimes on behalf of a (terrorist) organisation shall be considered as terror offenders even if they are not a member of that terrorist organisation.” D. Code of Criminal Procedure (Law no. 5271) 53. Suspension of the pronouncement of a judgment is governed by Article 231 of the Code of Criminal Procedure, the relevant paragraphs of which read as follows: “... (5) If the accused has been convicted on the charges against him and ordered to pay a fine or sentenced to imprisonment for less than two years, the court may decide to suspend the pronouncement of the judgment ... The suspension of the pronouncement of the judgment entails that the judgment shall not bear any legal consequences for the offender. (6) Suspension of the pronouncement of the judgment may be decided provided that : (a) the offender has never been found guilty of a wilful offence; (b) the court is convinced, taking into account the offender ’ s personal traits and his behaviour during the proceedings, that there is little risk of any further offence being committed; [and] (c) the damage caused to the victim or to society is redressed by way of restitution or compensation. ... (8) If the pronouncement of the judgment is suspended, the offender will be kept under supervision for the following five years. ... (10) If the offender does not commit another wilful offence and abides by the obligations of the supervision order, the judgment [whose] pronouncement had been suspended will be cancelled and the case discontinued. (11) If the offender commits another wilful offence or acts in violation of the obligations of the supervision order, the court shall impose the sentence. Nevertheless, the court may evaluate the offender ’ s situation and may decide that ... up to half of the total sentence will not be executed. If the conditions so permit, the court may also suspend the execution of [any] imprisonment or commute it to other optional measures. (12) An objection to the decision to suspend the pronouncement of the judgment may be filed.” 54. At the material time, according to Article 250 of the Code of Criminal Procedure and section 4 of the Prevention of Terrorism Act assize courts with special jurisdiction were competent to try a number of crimes, including the crimes proscribed by Article 314 of the Criminal Code and section 7(2) of the Prevention of Terrorism Act. By Law no. 6008 a new paragraph (paragraph 4) was inserted in Article 250 of the Code of Criminal Procedure, according to which children could not be tried by assize courts which had special jurisdiction. On 5 July 2012 both Article 250 of the Code of Criminal Procedure and section 4 of the Prevention of Terrorism Act were repealed and assize courts with special jurisdiction were abolished. E. Code of Child Protection (Law no. 5395) 55. Article 23 of the Code of Child Protection reads as follows: “At the end of the criminal proceedings brought against a child, the court may decide to suspend the pronouncement of the judgment if the conditions are fulfilled. With regard to these persons, the period of supervision is three years.” F. The decision of the Court of Cassation of 4 March 2008 ( Case no. 2007/9-282, Decision no. 2008/44) 56. In criminal proceedings brought against a certain F.Ö., on 29 September 2006 Diyarbakır Assize Court convicted him under section 7(2) of Law no. 3713 and section 32(1) and (3) of Law no. 2911 on account of his participation in and conduct during three demonstrations. 57. On 21 February 2007 the Ninth Criminal Division of the Court of Cassation quashed the judgment of the first-instance court, holding that F.Ö. ’ s acts constituted not only the offences proscribed in section 7(2) of Law no. 3713 and section 32(1) and (3) of Law no. 2911, but also membership of an illegal organisation under Article 314 § 2 of the Criminal Code on the basis of Articles 220 § 6 and 314 § 3 of the same Code, as he had committed those offences on behalf of the organisation. The Ninth Chamber therefore considered that F.Ö. should be punished for having committed the offence of membership of an illegal organisation and the other offences proscribed in section 7(2) of Law no. 3713 and section 32(1) and (3) of Law no. 2911. 58. On 31 May 2007 Diyarbakır Assize Court reiterated its previous judgment that F.Ö. ’ s acts did not constitute the offence proscribed in Article 314 § 2 of the Criminal Code. The Assize Court noted the following: “ ... In cases where people participate in the funerals of members of a terrorist organisation or in Newroz celebrations, subsequent to abstract and generalised calls of that organisation, and in cases where chanting slogans constitutes propaganda for that organisation, it is not possible to state that those crimes were committed on behalf of the organisation. In order for a court to conclude that a crime was committed on behalf of an organisation, the latter must have called for action not to an undefined collective, but rather to an individual person who is capable of directly committing that act. ... ” 59. As a result of the disagreement between Diyarbakır Assize Court and the Ninth Criminal Division of the Court of Cassation, the case was transferred to the Plenary Court of Cassation ( Criminal Divisions ). On 4 March 2008 the Plenary Court of Cassation decided to quash the judgment of the Assize Court. Its decision, in so far as relevant, reads as follows: “ ... In the criminal proceedings brought against F.Ö. under Articles 314 § 2, 53, 63, 58 § 9 of the Criminal Code (Law no. 5237) and section 5 of the Prevention of Terrorism Act (Law no. 3713) with reference to Articles 220 §§ 6 and 7 and 314 § 3 of the same Code, the first-instance court held that the accused should be convicted under section 7(2) of Law no. 3713, section 32(1) and (3) of Law no. 2911 and not under Article 314 § 2 of the Criminal Code. The Plenary Court of Cassation ( Criminal Divisions ) must resolve the following issues: 1. Whether the acts of the accused which were considered to have constituted three separate crimes could also be considered to be crimes committed on behalf of an [illegal] organisation in view of the provision which reads as follows: ‘ Anyone who commits a crime on behalf of the (illegal) organisation, even if they are not a member of that organisation, shall also be punished for being a member of the organisation. ’ ... In the light of the information specific to the present case file and also the general information obtained from other case files concerning the [illegal] organisation, it is considered as follows: The PKK, whose aim is to form a Marxist–Leninist state by separation of a part of the territory under the sovereignty of the Republic of Turkey by means of an armed struggle, started developing new policies involving its members and supporters abroad following the arrest of its leader Abdullah Öcalan. To that end, the so-called Presidential Council of the organisation held a congress (the 7 th Congress) between 2 and 23 January 2000. At this congress a new action plan, namely the ‘ Democratisation and Peace Project ’, was adopted. Furthermore, the Central Committee was replaced by the Party Assembly while the ARGK and the ERNK were replaced by the HPG (Kurdistan People ’ s Defence Force) and the YDK (Kurdistan Democratic People ’ s Union) respectively. A new party regulation was prepared and the emblem of the organisation was also changed. In order to ensure the implementation of the decisions taken at the 7 th Congress, a conference that was named as ‘ the 6 th National Conference ’ by the PKK was held between 5 and 22 August 2000. In accordance with the new strategy for achieving the organisation ’ s main goals, an action plan of ‘ Civil Disobedience ’ was adopted. This non-violent action plan aimed at damaging the international reputation of the State of the Republic of Turkey and its security forces and was contrary to the legislation of the Republic of Turkey. In this regard, the following actions had been planned and implemented: ( 1 ) Submitting written petitions to university administrations by university students, who are the supporters or members of the organisation, requesting the inclusion of Kurdish in the curriculum as an elective course; ( 2 ) Creating pressure by submitting petitions to Directorates of National Education by the parents of primary and secondary school students for the use of the Kurdish language as the language of education; ( 3 ) Dressing up in traditional female Kurdish costumes (action to be organised by sympathiser groups); ( 4 ) Applying to courts or population registration offices and requesting to have ‘ Kurdish ’ written on identity cards; ( 5 ) Filing applications containing the phrase ‘ I also am a member of the PKK and I support its new strategy ’; ( 6 ) Extending the campaign for ‘ education in Kurdish ’, which had been pursued at the universities, to primary schools and high schools, by the PKK ’ s so-called Presidency Council. At the 8 th Congress held between 4 and 10 April 2002, the name PKK was changed to KADEK ( Kongra Azadi U Demokrasi A Kürdistane – Kurdistan Freedom and Democracy Congress) and this congress was declared as the ‘ 1 st Foundation Congress ’. Following this congress, a number of NGOs started to voice requests for ‘ education in mother tongue, prohibition of death penalty, general amnesty and permission to publish in the Kurdish language ’ in every arena. At the 9 th Congress held between 26 October and 15 November 2003, the name KADEK was changed to KONGRA-GEL (Kurdish People ’ s Congress) and this congress was declared as the 1 st Foundation Congress. Following this congress, throughout 2003 the organisation continued the aforementioned campaigns in accordance with the civil obedience movement ( Siyasi Serhildan ). In this regard : ( 1) Between 16 and 26 May 2004 the PKK held its 10 th Congress, which is named as the 2 nd Extraordinary Congress, on Mount Kandil in Northern Iraq, and decided to re-activate the militants of the HPG, the organisation ’ s armed wing, due to the weakening of Abdullah Öcalan ’ s influence as a result of the polarisations within the organisation, the inclusion of KONGRA-GEL in the list of terrorist organisations by the European Union, the failure to achieve the expected success within the past five years and in order to unify the organisation ’ s supporter base by reasserting the requests for a general amnesty, legalisation of the [organisation ’ s] political activities and constitutional recognition of the Kurdish cultural identity. It was further decided to carry out (armed) actions as a reprisal for the losses suffered during military operations launched against the organisation. It was also decided to bring forward the following issues via the individuals and NGOs sympathising with the organisation in order to shape public opinion and to apply pressure on the State in the international arena: 1. Adoption of a general amnesty; 2. Release of the leader of the terrorist organisation from prison; 3. Recognition of constitutional citizenship rights for Kurdish people; 4. Declaration of a ceasefire by both parties and establishment of peace; 5. Urging the State to take concrete steps concerning the Kurdish issue and the release of Abdullah Öcalan in order to maintain a conflict-free environment. The organisation also reverted back to its original name of ‘ PKK ’ ( Partiye Karkerani Kürdistan – Kurdistan Workers ’ Party) on 4 April 2005, the birthday of Abdullah Öcalan, who is still serving a prison sentence. ( 2) On 24 March 2006 fourteen PKK militants were killed in the Şenyayla region in the proximity of Solhan district, called Senyayla, during a military operation carried out by security forces of the 49 th Internal Security Infantry Brigade Command and Bingöl Provincial Gendarmerie Command in the region encompassing Bingöl and Muş provinces. Following the autopsy and forensic procedures carried out in Malatya, the remains of four of the militants were released to their families in order to be buried in Diyarbakır. On 28 March 2006 at around 7 a.m., the remains were taken to Şerif Efendi Mosque, located on Bağlar Medine Boulevard, where around 1500-2000 people had gathered. The crowd blocked the traffic; carried the coffins, chanted separatist and violent slogans in support of the organisation and its leader in Turkish and Kurdish and sang the organisation ’ s so-called youth march, the ‘ Hernepeş ’ (Forward). Furthermore, some of the demonstrators burned tyres on the road and some masked and unmasked protestors waved posters of Abdullah Öcalan and banners of the organisation. A banner of 2 x 1 metres in size containing the phrases ‘ Martyrs are our honour ’ and ‘ PKK ’ in capital letters was also held up. Despite the warnings of the security forces that the demonstrators should not chant illegal slogans, disseminate propaganda in support of the organisation and wave illegal flags, the crowd got agitated and started throwing stones at the police officers on duty, injured a number of police officers and caused extensive material damage to State buildings and vehicles, banks, shops and vehicles belonging to private individuals, by throwing stones and Molotov cocktails. The demonstrations continued on 29, 30 and 31 March, as the protesters burned numerous vehicles, looted local businesses, hurled Molotov cocktails particularly at open shops, blocked the roads and attacked police officers and police vehicles with stones, bats and Molotov cocktails, staged an arson attack on a bank building and took down and burned a Turkish flag. Prior to these demonstrations, some media organs controlled by the PKK had called for mass protests. In this respect, Fırat News Agency published the following statements made on behalf of the PKK People ’ s Defence Committee by T.K., a high-level executive of the organisation, on its homepage: ‘ ... Kurdish people have clearly, openly demonstrated their determination and persistence in their requests for freedom and democracy and in supporting the leader A. It is without doubt that Kurdish people will carry on the resistance in various ways throughout the year. It must be understood that the proletarian people, especially the Kurdish youth and women, are determined to turn 2006 into a year of civil disobedience ( Serhildan ) with the motto “freedom and democratic solutions for the Kurdish issue”. Newroz has been one of its [the civil disobedience] most important, most glorious peaks. At the moment, on account of our day and our week of heroism, our people have been carrying on their democratic actions with a view to remembering, embracing and understanding our martyrs. This will continue throughout the month of April... ’ Similarly, on the web page of the HPG, statements summoning the people to partake in actions of civil disobedience called ‘ serhildan ’ had been published: ‘ Amed [5]. ..! They have launched a full scale war against you. They have resorted to all of the dirty tools of war, ranging from drug addicts to prostitutes, from thinner addicts to bag-snatchers, from batons to torture, from bullets to genocide ... You must know these. You must know and rise up : The military, the police, the MIT (the Turkish intelligence agency), the JITEM (Gendarmerie Intelligence and Counter-Terrorism), they are all gangs of executioners... ’ The Kurdish organisation Komalen Ciwan close to the PKK issued the following statement on its Internet homepage: ‘ ... As the Kurdish people celebrate Newroz in a spirit of peace, the belligerent security forces continue their massacres against our people with chemical weapons. Most recently we have been shaken by the massacre of fourteen guerrillas – heroic children of our people in Muş. We are enduring a deep agony. It is the debt of honour of the Kurdish people and the people of A ... to protest against this massacre and to look out for the brave insurgents of the Kurdish people. For this reason, on 28 th of March, in a way that befits our week of heroism, we are calling our people to down their shutters, not to work and to collectively attend the funeral in an effort to embrace our six martyrs ... ’ On 27 March 2006 brochures containing the same statements were handed out to the public in various locations in Diyarbakır. Along with these web sites which are the media organs of the organisation [the PKK], Roj TV, which is the ‘ voice ’ of the organisation, created tension within society with its frequent broadcasts calling the people to stop going to work, to close down their businesses and not to send their children to school. People who attended the funerals of the deceased PKK members carried out the said actions. Similarly, the protests spread to many other cities and districts, notably Batman, Siirt, Istanbul and Mersin. Throughout the nationwide protests, above two hundred police officers were injured; several cars were burned; the windows of an indeterminate number of shops were smashed and many State buildings were set on fire. 9 people died during the events, whereas 41 persons were injured. Archive records of 400 people who were apprehended in relation to the incidents in Diyarbakir reveal that a number of them had previously been investigated on charges of membership of the PKK, aiding the PKK, and disseminating propaganda in support of that organisation. Some of them had been previously convicted on charges such as usurpation and robbery and they tried to take advantage of the chaotic atmosphere which lasted for 3 to 4 days. Out of 77 people who had participated in the protests and who were taken into custody, 26 were younger than 18 years old. F.Ö., who had participated in the protests which occurred upon the PKK ’ s appeals and instructions, was apprehended on 5 May 2006. It has been established beyond any doubt, in the light of the incident reports, reports containing a description of the events on the basis of police video recordings, video footage and photographs, that the accused were involved in the following incidents, apart from the events of 28 April 2006: – Participation in the funeral of E.E., a member of the PKK who had been killed on 26 February 2006. The accused carried the deceased terrorist ’ s coffin, sang the PKK ’ s so-called anthem ‘ Hernepeş ’, chanted slogans praising the PKK and its so-called leader, such as ‘ Öcalan Öcalan, Öcalan is our political will ’, ‘ Kurdistan will be the grave for fascism ’ and ‘ Guerrilla strikes to found Kurdistan ’ and directed the group; – Participation in the Newroz celebrations held in Diyarbakır Fairground on 21 March 2006. The accused was among a group of people who attacked the police officers at the control points at the entrances to the fairground, destroyed the barriers and carried the flags symbolising PKK and the posters of its so-called leader. The accused directed the group and 10 police officers were injured. The dispute to be resolved by the Plenary Court of Cassation ( Criminal Divisions ) is whether the accused ’ s acts (participation in illegal demonstrations of 26 February, 21 March and 28 March 2006, specially held upon the appeals by the PKK in accordance with the latter ’ s general invitation for demonstrations and with its new strategy; leading a group of demonstrators carrying symbols of the PKK and posters of Abdullah Öcalan; giving instruction to the demonstrators to attack the police; attack on the police; being in a group of people who received the remains of members of the organisation killed by the security forces during operations in line with the calls of the PKK and making a victory sign; chanting slogans such as ‘ Öcalan is our political will ’, ‘ Our leader is our political will ’ and ‘ Guerrilla strikes to found Kurdistan; directing a group that lit a fire on a road and blocked the traffic, which constitute independent offences, can also be considered offences committed on behalf of the organisation. Article 314 § 3 of the Criminal Code (Law no. 5237), which entered into force on 1 June 2005, reads as follows: ‘ (3) Other provisions relating to the offence of establishing organisations for the purpose of criminal activity are also applicable for this offence. ’ Article 220 § 6 of the Criminal Code reads as follows: ‘ (6) Anyone who commits a crime on behalf of the (illegal) organisation, even if they are not a member of that organisation, shall also be punished for being a member of the organisation. ’ ... The aforementioned provision reflects an approach that is utterly different from the approach of the former Criminal Code (Law no. 765). According to this provision, the offences committed in line with an [illegal] organisation ’ s activities impose further criminal responsibility. Acts of aiding are also considered as membership of an organisation. A separate offence of aiding an [illegal] organisation was not envisaged. Aiding an organisation by way of providing weapons was proscribed in a separate provision, i.e. Article 315, having regard to the gravity of that offence. Other acts of aiding were proscribed in Articles 220 and 314 of the same Code. In the circumstances of the present case, the [illegal] organisation ’ s public call has been made concrete through broadcasts from media organs of the organisation and there is no need for such calls to target identified individual persons. It is established that the acts carried out on behalf of the organisation were within the knowledge of the organisation and in line with its will. The acts of an accused who participates in these acts carried out on behalf of the organisation constitute a breach of Article 314 § 2 of the Criminal Code on the basis of Articles 220 § 6 and 314 § 3 of the Criminal Code, along with the breaches of criminal law provisions. Thus, the judgment [of the first-instance court] must be quashed. ... ” III. RELEVANT INTERNATIONAL MATERIALS A. United Nations Documents 1. The United Nations Convention on the Rights of the Child 60. The Convention on the Rights of the Child, adopted by the General Assembly of the United Nations on 20 November 1989, has binding force under international law vis-à-vis the Contracting States, including all of the member States of the Council of Europe. Article 1 of the Convention states: “For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.” Article 3 § 1 reads: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Article 37 reads, in so far as relevant, as follows: “States Parties shall ensure that: ... (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; (c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. ..; ” The relevant part of Article 40 provides: “ 1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child ’ s sense of dignity and worth, which reinforces the child ’ s respect for the human rights and fundamental freedoms of others and which takes into account the child ’ s age and the desirability of promoting the child ’ s reintegration and the child ’ s assuming a constructive role in society. ... 3. States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular: ... (b) Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected. 4. A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.” 2. General Comment No. 10 (2007) of the United Nations Committee on the Rights of the Child (CRC/C/GC/10) 61. The relevant part of the General Comment No. 10 of the Committee on the Rights of the Child, dated 25 April 2007, reads: “23. Children in conflict with the law, including child recidivists, have the right to be treated in ways that promote their reintegration and the child ’ s assuming a constructive role in society (art. 40 (1) of CRC). The arrest, detention or imprisonment of a child may be used only as a measure of last resort (art. 37 (b)). It is, therefore, necessary - as part of a comprehensive policy for juvenile justice - to develop and implement a wide range of measures to ensure that children are dealt with in a manner appropriate to their well-being, and proportionate to both their circumstances and the offence committed. These should include care, guidance and supervision, counselling, probation, foster care, educational and training programmes, and other alternatives to institutional care (art. 40 (4)). ... 28. When judicial proceedings are initiated by the competent authority (usually the prosecutor ’ s office), the principles of a fair and just trial must be applied ... At the same time, the juvenile justice system should provide for ample opportunities to deal with children in conflict with the law by using social and/or educational measures, and to strictly limit the use of deprivation of liberty, and in particular pre-trial detention, as a measure of last resort. In the disposition phase of the proceedings, deprivation of liberty must be used only as a measure of last resort and for the shortest appropriate period of time (art. 37 (b)). This means that States parties should have in place a well-trained probation service to allow for the maximum and effective use of measures such as guidance and supervision orders, probation, community monitoring or day report centres, and the possibility of early release from detention. ... 71. The Committee wishes to emphasize that the reaction to an offence should always be in proportion not only to the circumstances and the gravity of the offence, but also to the age, lesser culpability, circumstances and needs of the child, as well as to the various and particularly long-term needs of the society. A strictly punitive approach is not in accordance with the leading principles for juvenile justice spelled out in article 40 (1) of CRC ... ” 3. Concluding Observations of the United Nations Committee on the Rights of the Child: Turkey ( CRC/C/TUR/CO/2-3 ) 62. The relevant part of the Concluding Observations of the United Nations Committee on the Rights of the Child: Turkey ( CRC/C/TUR/CO/2 ‑ 3 ), dated 30 July 2012, states as follows: “ Freedom of association and peaceful assembly ... 39. The Committee recommends that the State party continue its efforts to ensure full enjoyment of the freedoms of expression, association and peaceful assembly by children by amending its legislation to remove the remaining obstacles to these rights, including the minimum age for forming an organisational committee for outdoor meetings. The Committee further recommends that the State party take all measures to remove other obstacles in the procedures and facilitate the process to ensure that children are able to exercise their rights in accordance with the law. ... Administration of juvenile justice 66. The Committee commends the State party for its extensive reforms in the area of juvenile justice, including new legislative changes resulting in the increase of the age of criminal liability from 11 to 12 years, requiring all persons under the age of 18, including those charged under the Counter-terrorism Law, to be considered in juvenile courts; introducing reduced sentences for children and special measures for children who are pushed into crime; as well as establishing child prisons, child prosecutors and child police. However, the Committee is concerned at the following: (a) Insufficient number of professionals working in the juvenile justice system; (b) Poor quality of legal assistance provided to children under the free legal aid programme, due to the low compensation for lawyers; (c) Long duration of trials involving children, resulting in large numbers of children in pre-trial detention, compared to children serving sentences; (d) Unduly heavy penalties against children and lack of alternative measures; (e) Reports that amendments to the Counter-terrorism Law are not upheld in practice, as children detained during demonstrations are initially held together with adults; (f) Long detention periods and poor conditions in some prisons; ... 67. The Committee recommends that the State party bring the juvenile justice system fully in line with the Convention on the Rights of the Child, in particular articles 37, 39 and 40, and with other relevant standards, including the Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), the Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), the Rules for the Protection of Juveniles Deprived of their Liberty (the Havana Rules), the Vienna Guidelines for Action on Children in the Criminal Justice System and the Committee ’ s general comment No. 10 (2007) on the rights of the child in juvenile justice. In particular, the Committee urges the State party to: (a) Increase the number of professionals working in the juvenile justice system; (b) Take measures to provide incentives for lawyers to work on cases involving children; (c) Expedite the investigation and trial process in cases involving children, so as to reduce the number of children in pre-trial detention; (d) Take immediate measures to ensure that the detention of children is used as a last resort and that alternative measures are applied for children; (e) Ensure enforcement of the amendments to the Counter-terrorism Law and ensure that children detained and charged under this law are provided with all basic legal guarantees; ... ” B. Council of Europe documents 1. Resolution 2010 (2014) of the Parliamentary Assembly of the Council of Europe 63. In its Resolution 2010 (2014), adopted on 27 June 2014 and entitled “Child-friendly juvenile justice: from rhetoric to reality”, the Parliamentary Assembly of the Council of Europe states the following: “ ... 6. In particular, the Assembly calls on the member States to: 6.1. establish a specialised juvenile justice system by means of dedicated laws, procedures and institutions for children in conflict with the law, inter alia the institution of a Children ’ s ombudsperson, following the positive practice of some member States; 6.2. set the minimum age of criminal responsibility at at least14 years of age, while establishing a range of suitable alternatives to formal prosecution for younger offenders; 6.3. prohibit exceptions to the minimum age of criminal responsibility, even for serious offences; 6.4. ensure that detention of juveniles is used as a measure of last resort and for the shortest possible period of time, in particular by: 6.4.1. determining an age limit below which it is not permitted to deprive a child of his or her liberty, preferably higher than the minimum age of criminal responsibility; 6.4.2. developing a broad range of alternative non-custodial measures and sanctions to pre-trial detention and post-trial incarceration, including educational measures, community sanctions and treatment programmes; 6.4.3. abolishing life imprisonment of any kind for children; 6.4.4. establishing a reasonable maximum period to which a child may be sentenced; 6.4.5. providing regular reviews of custodial measures and/or sanctions a child may be subjected to; 6.5. ensure that deprivation of liberty, used only as a measure of last resort, aims at rehabilitating and reintegrating children into society, in particular by providing appropriate training and treatment programmes; 6.6. develop a broad range of diversion programmes, respecting human rights standards and based, inter alia, on principles of restorative justice, with a view to dealing with juvenile offenders without resorting to judicial proceedings; 6.7. decriminalise status offences, which are acts classified as offences only when committed by children; 6.8. ensure that all actors involved in the administration of juvenile justice receive appropriate training, with a view to guaranteeing an effective implementation of children ’ s rights in this context; 6.9. prevent the detention of young offenders by, inter alia, introducing a system of rapid intervention with the aim of allowing a multi-professional team, including the police, social workers, psychiatric nurses and youth workers, to facilitate the investigation of crimes committed by young offenders and to offer them and their families support and rehabilitation. ... ” 2. Recommendation R (87) 20 of the Committee of Ministers of the Council of Europe 64. The recommendation of the Committee of Ministers to member States of the Council of Europe on social reactions to juvenile delinquency (R (87)20), adopted on 17 September 1987 at the 410 th meeting of the Ministers ’ Deputies, in so far as relevant, reads as follows: “Recommends the governments of member states to review, if necessary, their legislation and practice with a view: ... 7. to excluding the remand in custody of minors, apart from exceptional cases of very serious offences committed by older minors; in these cases, restricting the length of remand in custody and keeping minors apart from adults; arranging for decisions of this type to be, in principle, ordered after consultation with a welfare department on alternative proposals...” 3. Recommendation CM/Rec(2008)11 of the Committee of Ministers of the Council of Europe 65. The Recommendation on the European Rules for juvenile offenders subject to sanctions or measures (CM/Rec(2008)11), adopted by the Committee of Ministers on 5 November 2008, reads, in so far as relevant, as follows: “A. Basic principles ... 5. The imposition and implementation of sanctions or measures shall be based on the best interests of the juvenile offenders, limited by the gravity of the offences committed (principle of proportionality) and take account of their age, physical and mental well-being, development, capacities and personal circumstances (principle of individualisation) as ascertained when necessary by psychological, psychiatric or social inquiry reports. ... 10. Deprivation of liberty of a juvenile shall be a measure of last resort and imposed and implemented for the shortest period possible. Special efforts must be undertaken to avoid pre-trial detention. ... ” 4. Reports of the Commissioner for Human Rights of the Council of Europe 66. In his report published on 1 October 2009, following his visit to Turkey on 28 June to 3 July 2009 (CommDH(2009)30), Mr Thomas Hammarberg, the former Commissioner for Human Rights of the Council of Europe, stated the following: “ ... 35. During his visit to Turkey, the Commissioner was informed that over the previous nine months approximately 250 children of Kurdish origin, more than 190 of them between 13 and 17 years of age, had been arrested and detained, after having taken part in demonstrations organized by Kurdish groups and thrown stones at police forces. In particular he has been informed that four children aged between 16 and 17 have been detained in the Diyarbakır prison since 14 July 2008, charged with membership of a terrorist organization as a result of participating in a protest in the above town. 36. NGOs that met with the Commissioner during his visit indicated that prosecution in such cases is often based on Article 220, paragraph 6, of the Criminal Code which provides that any person who commits an offence on behalf of an illegal organisation, even though they are not a member of the organization, shall be sentenced for the offence as well as for membership of the organization. The extensive use of this provision by courts against participants of Kurdish-related demonstrations follows a ruling of the General Criminal Board of the Court of Cassation in March 2008 which indicated that persons participating in demonstrations following public calls by the illegal organization PKK should be brought into the ambit, inter alia, of the above provision of the Criminal Code ... 167. It appears necessary to revisit certain over-restrictive provisions of the legislation concerning elections, political parties and broadcasting, as well as criminal law provisions, such as the Criminal Code Articles 301 and 220 which have been used in a number of occasions in a manner that has unjustifiably suppressed freedom of expression ... ” 67. In his report published on 12 July 2011, following his visit to Turkey on 27 to 29 April 2011 (CommDH(2011)25), Mr Thomas Hammarberg stated the following: “ ... 18. Following his 2009 visit the Commissioner expressed his deep concern about the application of Article 220 of the Criminal Code, and in particular its paragraphs 6 and 8, and considers that this concern remains valid in the context of freedom of expression and freedom of the media in Turkey ... ” 68. In his report published on 10 January 2012, following his visit to Turkey on 10 to 14 October 2011 (CommDH(2012)2), Mr Thomas Hammarberg stated the following: “... 63. In his 2009 report on Turkey, the Commissioner expressed his concerns about the interpretation and application of the Turkish Anti-Terrorism Act (Act No. 3713) and certain provisions of the TCC, notably Article 220 dealing with criminal organisations. The Commissioner was particularly preoccupied by the wide interpretation of the courts concerning the definition of offences and their constitutive acts under the above provisions. 64. Pursuant to Article 220 TCC, a person shall be punished as a member of a criminal organisation, even if they are not a member of that organisation or part of its hierarchical structure, if they commit an offence on behalf of that organisation (paragraph 6), or help it knowingly and willingly (paragraph 7). The Commissioner had noted in his 2009 Report that persons participating in demonstrations following public calls by the illegal organization PKK were brought into the ambit of paragraph 6, in accordance with a ruling of the Court of Cassation in March 2008 ... 67. The Commissioner observes that the application of Article 220 TCC, as well as of Articles 6 and 7 of the Anti-Terrorism Act, continues to raise serious concerns ... 68. The Commissioner is fully aware of the severe threat posed to Turkish society by terrorism and terrorist organisations, as well as of the obligation of the Turkish state to combat it with effective measures, including effective investigations and fair proceedings. He wishes to underline, however, that a major lesson learned in the fight against terrorism in Europe has been the importance of public confidence in the justice system. This means that any allegation of terrorist activity must be established with convincing evidence and beyond any reasonable doubt. Experience has shown time and time again that any deviation from established human rights principles in the fight against terrorism, including in the functioning of the judiciary, ultimately serves the interests of terrorist organisations. 69. In this connection, it is crucial to bear in mind that violence or the threat to use violence is an essential component of an act of terrorism, and that restrictions of human rights in the fight against terrorism ‘ must be defined as precisely as possible and be necessary and proportionate to the aim pursued ’. 70. The Commissioner considers that the provisions contained in the Turkish anti-terror legislation and Article 220 TCC allow for a very wide margin of appreciation, in particular in cases where membership in a terrorist organisation has not been proven and when an act or statement may be deemed to coincide with the aims or instructions of a terrorist organisation. The Commissioner encourages the Turkish authorities to reflect on and address these concerns through legislative measures and/or case-law.” 69. On 20 February 2012 Mr Thomas Hammarberg published his comments concerning a draft law presented to the Parliament of Turkey by the Government, which envisaged amendments to various legal provisions, including Article 220 of the Criminal Code. The draft law in question was subsequently adopted on 2 July 2012 (Law no. 6352). In his comments, the former Commissioner for Human Rights considered as follows: “ ... 16. The proposed amendments to Article 220 TCC (Article 65 of the Bill) could be considered in conjunction with the previous amendment. These amendments concern paragraphs 6 and 7 of Article 220 TCC, which provide that a person shall be punished as a member of a criminal organisation, even if they are not a member of that organisation or part of its hierarchical structure, if they commit an offence on behalf of that organisation (paragraph 6), or help it knowingly and willingly (paragraph 7). With these amendments, the penalty is reduced by half for paragraph 6, and may be reduced by up to two thirds for paragraph 7. This would potentially allow persons being tried for these offences, especially where the criminal organisation is considered to fall under the scope of Article 314 TCC on armed criminal organisations, to benefit from alternative measures to remand in custody. 17. While acknowledging that this amendment can have short-term benefits for a number of ongoing trials, the Commissioner considers that it does not offer a lasting solution to serious problems caused by Article 220. As previously highlighted by the Commissioner, his main concern relating to Article 220 is the fact that it allows for a very wide margin of appreciation, in particular in cases where membership in a terrorist organisation has not been proven and when an act or statement may be deemed to coincide with the aims or instructions of a terrorist organisation. The Commissioner considers that this issue calls for a more substantial review of the definition of the offences concerned, and encourages the Turkish authorities to tackle this question in the context of their future reform package, along with other legislative problems identified by the Commissioner in his reports on Turkey.” C. Non- governmental Organisations ’ Reports 1. Report of Human Rights Watch of 1 November 2010 70. On 1 November 2010 the Human Rights Watch published a report entitled “ Protesting as a Terrorist Offence / The Arbitrary Use of Terrorism Laws to Prosecute and Incarcerate Demonstrators in Turkey ”. The 75-page report mainly concerned trials and convictions of demonstrators in Turkey under Laws nos. 5237, 2911 and 3713. The report, in so far as relevant, reads as follows: “In Turkey, many hundreds of people currently face prosecution, or are serving substantial sentences for terrorism convictions. Their ‘ crime ’ was to engage in peaceful protest, or to throw stones or burn a tire at a protest. Legal amendments since 2005, along with case law since 2008, have allowed courts in Turkey to convict demonstrators under the harshest terrorism laws, by invoking two articles of the Turkish Penal Code in combination with the Anti-Terror Law. In July 2010, as this report was being finalized, the government passed legal amendments to improve the treatment of child demonstrators ... ... There are ... fairly frequent localized protests in cities throughout southeast Turkey and in mainly Kurdish-populated districts of cities such as Adana. These typically involve groups of youths and children, who shout pro-Öcalan and PKK slogans, burn tires in the street, and respond to police orders to disperse by throwing stones. In the past, courts in Turkey convicted these protestors under laws governing public order or of ‘ making propaganda for a terrorist organization ’ (Article 7/2, Anti-Terror Law). Yet in recent years, criminal justice officials have deemed Kurdish protestors demonstrating against Turkey ’ s policies towards the Kurds to be ‘ committing crimes on behalf of the PKK without being a member of that organization ’ (Article 220/6, Turkish Penal Code). As a result, they are prosecuted as if they were actually fighting the government as armed ‘ members ’ of the PKK (Article 314/2, Turkish Penal Code). These serious charges, on top of more usual charges under the Law on Demonstrations and Public Assemblies, could result in sentences of 28 years in prison, or more, if there are repeated offenses. To date, the majority of adults convicted under these laws have received prison terms of between seven and 15 years. Prior to a July 2010 legal amendment, child protestors typically received prison sentences of between four and five years, though in 2010, at least several children were sentenced to seven-and-a-half years in prison. Law enforcement authorities and the courts allege that the PKK and its representatives are organizing the demonstrations as part of a wider policy to promote civil unrest, and even uprising, among Kurds in towns and cities throughout Turkey. By way of evidence the government and courts point to the PKK ’ s decrees issued at various congresses, and the fact that senior PKK representatives use sympathetic media outlets to issue ‘ appeals ’ to the Kurdish population to take to the streets in protest. Hence, the template for individual indictments includes an abstract overview of PKK history and policies, followed by a statement of the alleged specific criminal activities of the defendant. In none of the cases examined by Human Rights Watch had prosecutors submitted evidence to establish that the individual defendant either heard the PKK ’ s ‘ appeal ’ or had been directly instructed or motivated by the PKK to participate in the demonstration, much less that the individual had any other specific link with the PKK or committed a crime under its orders. The Turkish courts consider it no obstacle to conviction that the prosecution has failed to provide evidence of the defendant ’ s specific intent to support or aid the illegal activities of the PKK. The General Penal Board of the Court of Cassation has held that it is sufficient to show that sympathetic media outlets broadcast the PKK ’ s ‘ appeals ’ – speeches by the PKK leadership calling on the Kurdish population to protest or raise their voices on various issues. Then the defendant, by joining the demonstration, is assumed to have acted directly under PKK orders. Yet even at extremely local demonstrations not announced in the media beforehand, protestors are routinely charged with acting under the orders of the PKK. In some cases, courts have held that the PKK ’ s ‘ appeal ’ to participate in demonstrations is a continuous generic one, and therefore a specific instance of appeal to the population need not be proved. This legal framework makes no distinction between an armed PKK combatant and a civilian demonstrator. ... On July 22, 2010, after civil society groups campaigned extensively against the prosecution of children under terrorism laws, the Turkish parliament adopted several amendments to limit the applicability of such laws to child demonstrators. Law no. 6008, published in the Official Gazette on July 25, 2010, states that all children will henceforth stand trial in juvenile courts, or adult courts acting as juvenile courts; child demonstrators ‘ who commit propaganda crimes ’ or resist dispersal by the police will not be charged with ‘ committing crimes on behalf of a terrorist organization ’ and hence ‘ membership in a terrorist organization ’ and children will not face aggravated penalties, and may benefit from sentence postponements and similar measures for public order offenses. The amendments also reduce penalties for both children and adults for forcibly resisting police dispersal and offering ‘ armed resistance, ’ including with stones, during demonstrations under the Law on Demonstrations and Public Meetings. Yet the new law omits any provision to prevent children from being charged with ‘ making propaganda for a terrorist organization ’ (either under Article 7/2 of the Anti-Terror Law or Article 220/8 of the Turkish Penal Code). ... ” 2. Reports of Amnesty International 71. The report of Amnesty International published on 17 June 2010, entitled “All Children Have Rights / End Unfair Prosecutions of Children under Anti- terrorism Legislation in Turkey” concerned the rights of the children who are arrested, detained and tried under Laws nos. 5237, 2911 and 3713 on account of their participation in demonstrations. The report reads, in so far as relevant: “ ... While comprehensive statistics regarding the number of children prosecuted under antiterrorism legislation following demonstrations is not available, official statistics show that prosecutions were initiated against 513 children under Article 314 of the Penal Code which criminalizes leadership or membership of an armed organization in 2006-7 and against 737 children under the Anti-Terrorism Law during the same period. Following a parliamentary question tabled by a Member of Parliament Sevahir Bayındır in May 2009, the Justice Ministry in a written answer in December 2009 stated that from 2006-8 prosecutions were initiated against 1,308 children under the Anti-Terrorism Law and 719 children under Article 314 of the Penal Code. ... Children alleged to have participated in the demonstrations are frequently prosecuted under the Anti-Terrorism Law, specifically Article 7/2 which criminalizes making propaganda for a terrorist organization, and under Article 314 of the Penal Code via Article 220/6 of the Penal Code that criminalizes those who commit crimes in the name of a terrorist organization additionally, as if they were members of the organization. In a lesser number of cases Article 220/7 of the Penal Code is applied which states: ‘ persons knowingly and willingly assisting the organization but not within the hierarchical structure of the organization are punished as members of the organization ’. This application of the law followed a ruling of the Supreme Court of Appeals (case number 2007/9282). The Court considered that the tactics of the PKK were to make use of civil disobedience. In this context the Court ruled that in demonstrations publicized by media organizations regarded by the Turkish state to be associated with the PKK, such as Roj TV and Fırat News Agency, those that participate in demonstrations could be said to be acting on behalf of a terrorist organization. Children, who have been prosecuted in connection with their participation in the demonstrations, have frequently faced multiple charges for the same act including making propaganda for a terrorist organization, membership of a terrorist organization and, in addition, violation of the Law on Meetings and Demonstrations. ... Under the Convention on the Rights of the Child, which applies to everyone under 18, states are required to establish laws, procedures, authorities and institutions specifically applicable to children accused of infringing the penal law. The UN Standard Minimum Rules for the Administration of Juvenile Justice ( ‘ The Beijing Rules ’ ), adopted by the UN General Assembly in November 1985, stipulate in particular that proceedings for children should be conducive to the best interests of the child and shall be conducted in an atmosphere of understanding allowing them to participate and to express themselves freely, and that the well-being of the child should be the guiding factor in the consideration of the case. Amnesty International is concerned that by law, children aged 15-17 are tried in Special Heavy Penal courts under the same procedures as adults for terrorism-related offences. Article 9 of the Anti-Terrorism Law stipulates that children aged 15 and above are tried in Special Heavy Penal Courts for prosecutions brought under anti-terrorism legislation ... The courts follow the same procedures as for the prosecution of adults save for the fact that the hearings are closed to the public. ... ” 72. On 27 March 2013 Amnesty International published a report entitled “Turkey: Decriminalize Dissent / Time to deliver on the Right to Freedom of Expression”. The relevant passages of the report read as follows: “Article 220/6: Committing a crime in the name of a terrorist organization Article 220/6 of the Turkish Penal Code allows the state to punish individuals who have not been proven in court to be members of terrorist organization as though they were, if deemed to have performed a criminal act “in the name of an organization”. In full, the Article reads: ‘ A person who commits a crime in the name of an organization without being a member of that organization is punished as a member of the organization. The punishment for membership of an organization can be reduced by up to one half. ’ Courts have used this Article as the basis for imposing increased sentences for supposedly criminal activity with little evidence, either of the commission of a recognizably criminal offence or any demonstrable link to a ‘ terrorist organization ’. As with direct membership cases, the evidence presented for having committed a crime ‘ in the name of an organization ’ frequently amounts to nothing more than participation in demonstrations, or the writing of pro-Kurdish articles. ... Amnesty International considers that 220/6 is neither necessary for the prosecution of individuals for genuinely terrorist-related offences, nor, in practice, applied in such a way as to uphold the right to freedom of expression. Amnesty International therefore recommends that the Article be repealed and that legitimate prosecutions be brought instead under other, existing Penal Code articles requiring proof of membership or intent to assist a terrorist organization.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 73. The applicant complained about his conviction for participating in a demonstration and the allegedly disproportionate sentences imposed on him. He relied on Articles 6, 9 and 10 of the Convention. 74. The Court reiterates that it is the master of the characterisation to be given in law to the facts of the case and is not bound by the characterisation given by the applicant or the Government (see Akdeniz v. Turkey, no. 25165/94, § 88, 31 May 2005; Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 43, ECHR 2012; and Zorica Jovanović v. Serbia, no. 21794/08, § 43, ECHR 2013). 75. The Court notes that, in the circumstances of the present case, Article 10 is to be regarded as a lex generalis in relation to Article 11, which is a lex specialis (see Ezelin v. France, 26 April 1991, § 35, Series A no. 202; Galstyan v. Armenia, no. 26986/03, § 95, 15 November 2007; Kasparov and Others v. Russia, no. 21613/07, § 82, 3 October 2013; and Lütfiye Zengin and Others v. Turkey, no. 36443/06, § 35, 14 April 2015). The Court also observes that the applicant ’ s submissions under Articles 6 and 9 of the Convention essentially concern the alleged breach of his right to freedom of assembly. Accordingly, the Court will examine these complaints from the standpoint of Article 11 of the Convention. 76. However, notwithstanding its autonomous role and particular sphere of application, Article 11 must, in the present case, also be considered in the light of Article 10. The protection of personal opinions, secured by Article 10, is one of the objectives of freedom of peaceful assembly as enshrined in Article 11 (see Ezelin, cited above, § 37; Galstyan, cited above, § 96; and Kasparov and Others, cited above, § 83). Article 11 of the Convention reads as follows: “ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” 77. The Government contested the applicant ’ s allegations. A. Admissibility 78. The Court considers that the issue of the applicant ’ s “victim status” is closely linked to the merits of the applicant ’ s complaints under this head. It therefore joins this issue to the merits. The Court further notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 79. The applicant submitted that he had been convicted under Article 314 § 2 of the Criminal Code with reference to Articles 220 § 6 and 314 § 3 of the same Code despite the fact that he had not been a member of any illegal organisation and that there had been no evidence in the case file showing that the demonstration of 14 July 2008 had been held upon the instructions of the PKK. The applicant stated that it had not been established that the calls published on different websites emanated from the PKK as alleged. He contended that, in any event, in order to be convicted of membership of an illegal organisation under Article 314 § 2 of the Criminal Code, with reference to Article 220 § 6, a person should receive a personalised call from an illegal organisation to commit a specific offence on its behalf. As the appeal which allegedly emanated from the PKK was an abstract and generalised appeal, containing no call to commit any offence, he should not have been convicted of committing an offence on behalf of the organisation or, accordingly, for membership of an illegal organisation. 80. The applicant further contended that propaganda should be defined as influencing a person or a group of people about a certain opinion or attempting to convince them about the veracity of that opinion. Besides, for an offence of dissemination of propaganda to be made out, the person should have the intention of disseminating propaganda. According to the applicant, in the light of the aforementioned explanation, he could not be considered as having committed the offence of disseminating propaganda in support of a terrorist organisation in breach of section 7(2) of Law no. 3713. He further had not used a weapon when taking part in the demonstration as maintained in the judgment convicting him, pursuant to sections 23(b) and 33(c) of Law no. 2911. He had thrown pebbles at the security forces after the latter had launched an attack on the demonstrators. The applicant finally considered that, even assuming that he had committed the offences in question, only one sentence should have been imposed on him and that he had been disproportionately sentenced. (b) The Government 81. In their submissions dated 13 March 2013, the Government stated at the outset that there had been an interference with the applicant ’ s right to freedom of assembly as he had been taken into police custody and subsequently convicted for his participation in a demonstration organised in support of the PKK. 82. The Government further submitted that the interference in question had been prescribed by law. They noted in this regard that the applicant ’ s conviction had been based on section 23 ( b ) of Law no. 2911 and Articles 220 § 6 and 314 § 2 of the Criminal Code. According to the Government, these provisions, and in particular Article 220 § 6 of the Criminal Code, fulfilled the requirement of “foreseeability” for the purposes of Article 11 of the Convention. 83. With regard to the applicant ’ s conviction under Article 220 § 6 of the Criminal Code, the Government contended that the applicant had deliberately taken part in the demonstration held in Diyarbakır on 14 July 2008 in support of a terrorist and armed criminal organisation, following the publication of a call for participation on the website of the Fırat News Agency, which was considered to be the voice of the PKK. The Government noted that the applicant had not denied the fact that he had participated in the demonstration. He had, however, denied being a member of the PKK. Thus, the charges brought against him under Article 220 § 6 of the Criminal Code were in conformity with the domestic law, given that he had not been an active and permanent member of the PKK. 84. The Government contended that criminal proceedings were brought against both adults and minors who had committed the offence proscribed by Article 220 § 6 of the Criminal Code. However, being a minor was a mitigating circumstance under Article 31 § 3 of the Criminal Code. 85. The Government also stated that all illegal activities allowing terrorist organisations to achieve their aims would be considered to be acts committed on behalf of those organisations. The Government further noted that the expression “committing a crime” was deemed to refer to an offence proscribed by one of the criminal codes in Turkish law. 86. Referring to the Court ’ s judgment in the case of Leyla Şahin v. Turkey ([GC], no. 44774/98, § 98, ECHR 2005 ‑ XI), the Government submitted, in particular, that Article 220 § 6 of the Criminal Code, read in the light of the decision of the Plenary Court of Cassation ( Criminal Divisions ) dated 4 March 2008 (see paragraphs 5 6 - 5 9 above) was sufficiently precise in its terms as to satisfy the requirement of foreseeability. According to the Government, an applicant who threw stones at the security forces during a demonstration organised in support of a terrorist organisation and who accepted that he had committed that act should have been aware of the fact that his acts would be punished. In the Government ’ s view, the applicant was aware of the consequences of his acts having regard, in particular, to the fact that other demonstrators had knocked over waste containers, thrown stones at the police and destroyed cars and shop windows. The Government therefore concluded that the interference with the applicant ’ s right to freedom of assembly had a legal basis in domestic law. 87. As to the question of a “legitimate aim”, the Government contended that the interference in question pursued the aims of protecting public order and the rights and freedom of others. They further submitted that the national authorities had a positive obligation to take reasonable and appropriate measures to protect people and public order during public demonstrations. 88. As to the question of the necessity of the interference in a democratic society, the Government submitted at the outset that the demonstration in issue had been illegal as the organisers had failed to notify the national authorities of its existence in accordance with the provisions of Law no. 2911. The Government considered that while individuals who held demonstrations without giving prior notification to the national authorities had the right to hold peaceful gatherings and to express their opinions without intervention by the security forces, they should be prepared to be sanctioned for failing to comply with the requirement of prior notification. In this regard, the Government referred to the national authorities ’ duty to take the necessary measures in order to guarantee the smooth conduct of legal demonstrations and the security of all citizens. 89. The Government further contended that the interference in the present case had been necessary given that the applicant had not only been convicted on account of participation in an illegal demonstration but also for throwing stones at the police. They noted that the applicant and the other demonstrators had been asked to disperse, but had refused to do so. 90. The Government finally stated that at the time of the submission of their observations, that is to say on 13 March 2013, the re-assessment of the applicant ’ s sentence was pending and therefore the proportionality of the penalties imposed on the applicant could not and should not be assessed by the Court. On 20 June 2014 the Government submitted the judgment of Diyarbakır Juvenile Court dated 20 December 2012, upon the request of the Court. However, they did not make any further submissions on the basis of the judgment of 20 December 2012. 2. The Court ’ s assessment (a) Whether there was an interference 91. The Court reiterates that an interference with the exercise of freedom of peaceful assembly does not need to amount to an outright ban, whether legal or de facto, but can consist in various other measures taken by the authorities. The term “restrictions” in Article 11 § 2 must be interpreted as including both measures taken before or during an act of assembly and those, such as punitive measures, taken afterwards ( see Ezelin, cited above, § 39 ). Thus, the Court has considered in a number of cases that penalties imposed for taking part in a rally amounted to an interference with the right to freedom of assembly (see, for example, Ezelin, cited above, § 41; Osmani and Others v. “the former Yugoslav Republic of Macedonia” (dec.), no. 50841/99, ECHR 2001 ‑ X; Mkrtchyan v. Armenia, no. 6562/03, § 37, 11 January 2007; Galstyan, cited above, § 101; Ashughyan v Armenia, no. 33268/03, § 77, 17 July 2008; Sergey Kuznetsov v. Russia, no. 10877/04, § 36, 23 October 2008; Uzunget and Others v. Turkey, no. 21831/03, § 43, 13 October 2009; and Yılmaz Yıldız and Others v. Turkey, no. 4524/06, § 34, 14 October 2014). 92. The Court notes that it is not disputed between the parties that there was an interference with the applicant ’ s right to freedom of assembly. In particular, in their submissions to the Court, the Government considered that the applicant ’ s arrest and conviction pursuant to Article 314 § 2 of the Criminal Code on the basis of Articles 220 § 6 and 314 § 3 of the same Code, section 7(2) of Law no. 3713 and sections 23 (b) and 33(c) of Law no. 2911 had constituted an interference with the applicant ’ s right to freedom of assembly. The Court nevertheless must examine two issues under this head. 93. Firstly, the Court observes that the applicant was arrested, detained on remand and subsequently convicted on the ground of having attended a demonstration and thrown stones at the security forces during that demonstration. The Court reiterates in this regard that in a number of cases where demonstrators had engaged in acts of violence, it held that the demonstrations in question had been within the scope of Article 11 of the Convention but that the interferences with the right guaranteed by Article 11 of the Convention were justified for the prevention of disorder or crime and for the protection of the rights and freedoms of others. 94. Thus, for instance in the aforementioned case of Osmani and Others, the applicant, the mayor of a town, stated in a speech made during a public assembly his refusal to remove an Albanian flag, in defiance of a decision of the Constitutional Court. That speech triggered a fight between those citizens who wanted to remove the flag and those who wanted to keep it. After that incident, that applicant organised an armed vigil to protect the Albanian flag. The police later found weapons in the town hall and in the applicant ’ s flat. On the same day as they found the cache of weapons, the police were attacked by a group of about 200 people, who were armed with metal sticks and threw stones, rocks, Molotov cocktails and teargas projectiles at them. The Court found that in the very sensitive interethnic situation of that time the applicant ’ s speeches and actions had encouraged interethnic violence and violence against the police. Nonetheless, noting that the applicant was found guilty of stirring up national, racial and religious hatred, disagreement and intolerance, on account of the fact that he had organised a public meeting, the Court rejected the Government argument that Article 11 of the Convention was not applicable in that case. The Court considered that there had been an interference with the exercise of the applicant ’ s freedom of peaceful assembly. It then examined the necessity and the proportionality of the sanction imposed on the applicant and concluded that the applicant ’ s complaint under Article 11 was manifestly ill-founded. 95. Similarly, in the case of Protopapa v. Turkey (no. 16084/90, ( §§ 104-112, 24 February 2009 ), where the applicant and other demonstrators had clashed with the security forces while demonstrating and had subsequently been arrested, the Court considered that there had been an interference with the applicant ’ s right of assembly. The Court however concluded that the interference was necessary in a democratic society as it found that the intervention of the security forces had been provoked by the demonstrators ’ acts of violence and that the interference had not been disproportionate for the purposes of Article 11 § 2 (see also Vrahimi v. Turkey, no. 16078/90, §§ 111-122, 22 September 2009; Andreou Papi v. Turkey, no. 16094/90, §§ 105-116, 22 September 2009); and Asproftas v. Turkey, no. 16079/90, §§ 103-114, 2 7 May 2010). 96. Finally, in the case of Taranenko v. Russia (no. 19554/05, §§ 70-71 and §§ 90-97, 15 May 2014), the applicant was part of a group of about forty people who forced their way through identity and security checks into the reception area of the President ’ s Administration building which was open to public. When they stormed the building, the protestors pushed one of the guards aside and jumped over furniture before locking themselves in a vacant office where they started to wave placards and to distribute leaflets out of the windows. The applicant was arrested, subsequently charged with participation in mass disorder in connection with her taking part in the protest action and remanded in custody for a year, at the end of which time she was convicted as charged. She was sentenced to three years ’ imprisonment, suspended for three years. In those circumstances, the Court considered that the applicant ’ s arrest, detention and conviction constituted an interference with the right to freedom of expression. Unlike the aforementioned cases, in the case of Taranenko, the Court ultimately found a violation of Article 10 of the Convention interpreted in the light of Article 11. 97. In the present case, the Court observes that according to the documents in the case file the demonstration of 14 July 2008 was organised by the DTP to protest about the conditions of detention of Abdullah Öcalan. The Court notes that nothing in the case file suggests that this demonstration was not intended to be peaceful or that the organisers had violent intentions. The Court further observes that the applicant claimed that when he first joined the demonstrators, he started walking and chanting slogans with them. Thus, he had the intention of showing support for Mr Öcalan, but not of behaving violently when he started demonstrating, and these submissions were not contested by the Government. Besides, there is nothing in the domestic courts ’ decisions showing that the applicant had violent intentions when he joined the demonstration. What is more, the charges against the applicant did not concern infliction of any bodily harm on anyone. The Court therefore accepts that during the events of 14 July 2008 the applicant enjoyed the protection of Article 11 of the Convention ( compare Primov and Others v. Russia, no. 17391/06, § 156, 12 June 2014), as also acknowledged by the Government. 98. The Court must secondly address the issue of the applicant ’ s “victim status” under this head. In this connection, the Court observes that the applicant was convicted under Article 314 § 2 of the Criminal Code, on the basis of Articles 220 § 6 and 314 § 3 of the same Code; section 7(2) of Law no. 3713; and sections 23 (b) and 33(c) of Law no. 2911 by the judgment of Diyarbakır Assize Court and sentenced to a total of seven years and six months ’ imprisonment. This judgment was upheld by the Court of Cassation on 6 October 2009 (see paragraphs 18-2 5 above). Subsequent to the entry into force of Law no. 6008, the applicant was released from prison on 25 July 2010 and a re-assessment of the applicant ’ s convictions and sentences was carried out by Diyarbakır Juvenile Court. The Juvenile Court rendered its judgment on 20 December 2012, acquitting the applicant of the charges brought against him under Article 314 § 2 of the Criminal Code and convicting him under section 7(2) of Law no. 3713, sections 33(1), 32(1) and (2) of Law no. 2911 and Article 265 § 1 of the Criminal Code (see paragraphs 3 5 - 40 above). The court also decided to suspend the pronouncement of the judgment with regard to the applicant ’ s convictions under the aforementioned provisions for a period of three years in accordance with Article 231 of Law no. 5271 and section 23 of Law no. 5395. 99. The Court reiterates in this connection that a decision or measure favourable to an applicant is not sufficient in principle to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Öztürk v. Turkey [GC], no. 22479/93, § 73, ECHR 1999 ‑ VI; Erdoğdu v. Turkey, no. 25723/94, § 72, ECHR 2000 ‑ VI; Müslüm Özbey v. Turkey, no. 50087/99, § 26, 21 December 2006; and Ulusoy v. Turkey, no. 52709/99, § 34, 31 July 2007 ). 100. In the instant case, the Court observes at the outset that the applicant was released from prison on 25 July 2010 and the content of the judgment of 20 December 2012 was more favourable to the applicant compared to that of 11 November 2008 in so far as it concerned the applicant ’ s conviction under Article 314 § 2 of the Criminal Code. However, the Court does not lose sight of the fact that the applicant was detained on remand for three months and twenty days between 21 July and 11 November 2008 and partly served his prison sentence arising from the judgment of Diyarbakır Assize Court between 11 November 2008 and 25 July 2010. Thus, the applicant was deprived of his liberty for more than two years within the context of the criminal proceedings brought against him. Besides, the judgment of 20 December 2012 neither acknowledged nor afforded redress for the alleged breach of the applicant ’ s right to freedom of assembly on account of his previous conviction under Article 314 § 2 of the Criminal Code. The Court therefore finds that following the judgment of 20 December 2012, the applicant did not lose his “victim” status to complain about a breach of Article 11 on account of his conviction under Article 314 § 2 of the Criminal Code by the judgment of 11 November 2008 (see, Birdal v. Turkey, no. 53047/99, § 25, 2 October 2007, and Aktan v. Turkey, no. 20863/02, §§ 27-28, 23 September 2008). 101. The Court further observes that, in its judgment of 20 December 2012, Diyarbakır Juvenile Court did not conduct a new examination of the facts of the case when it once again convicted the applicant of dissemination of propaganda in support of a terrorist organisation and resistance to security forces. Nor did it provide reasoning for the applicant ’ s re-conviction of these charges. The Court therefore finds that Diyarbakır Juvenile Court adhered to the conclusions of Diyarbakır Assize Court regarding the assessment of the evidence and the establishment of the facts of the applicant ’ s case. Besides, the judgment of 20 December 2012 did not acknowledge or provide redress for the alleged breach of the applicant ’ s freedom of assembly on account of the applicant ’ s original convictions for having disseminated propaganda in support of the PKK and having resisted to the police. Thus, in the Court ’ s view, the re ‑ assessment of the applicant ’ s convictions and sentences as well as the application of Article 231 of Law no. 5271 did not deprive the applicant of victim status. What is more, the juvenile court ’ s judgment also had a deterrent effect on the applicant ’ s future exercise of his right guaranteed under Article 11, since the pronouncement of the applicant ’ s convictions under section 7(2) of Law no. 3713, sections 33(1), 32(1) and (2) of Law no. 2911 and Article 265 § 1 of the Criminal Code was suspended on condition that he did not commit another wilful offence and any failure on the applicant ’ s part to comply with that condition would lead to the pronouncement of these convictions and the execution of the sentences ( see paragraphs 36-39 and 52 above and compare Erdoğdu, cited above, § 72; Aslı Güneş v. Turkey, no. 53916/00, § 21, 27 September 2005; Ulusoy, cited above, §§ 32-35; İsak Tepe v. Turkey, no. 17129/02, § 14, 21 October 2008; Lütfiye Zengin and Others, cited above, §§ 44 and 58). 102. Having regard to the above, the Court considers that the judgments of 11 November 2008 and 20 December 2012 and the applicant ’ s detention, both pending trial and for the execution of his sentence, entailed real and effective restraint and had a deterrent effect on the applicant ’ s exercise of his right to freedom of assembly. As a result, the Court concludes that the applicant ’ s criminal convictions for membership of the PKK, dissemination of propaganda in support of the PKK and resistance to the police contained in the aforementioned judgments, as well as the imposition upon him of prison sentences and his detention between 21 July 2008 and 25 July 2010, constituted interference with his right to freedom of assembly as guaranteed by Article 11 of the Convention. (b) Whether the interference was prescribed by law 103. The Court reiterates that the expression “prescribed by law” in Article 11 of the Convention not only requires that the impugned measure should have some basis in domestic law, but also refers to the quality of the law in question. The law should be accessible to the persons concerned and formulated with sufficient precision to enable them – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail and to regulate their conduct (see, among many others, Leyla Şahin, cited above, § 84; Kruslin v. France, 24 April 1990, § 27, Series A no. 176 ‑ A; and Vyerentsov v. Ukraine, no. 20372/11, § 52, 11 April 2013 ). Besides, the legal norms should be compatible with the rule of law (see, for example, Association Ekin v. France, no. 39288/98, § 44, ECHR 2001 ‑ VIII; and Cumhuriyet Vakfı and Others v. Turkey, no. 28255/07, § 50, 8 October 2013). 104. Further, as regards the words “in accordance with the law” and “prescribed by law” which appear in Articles 8 to 11 of the Convention, the Court observes that it has always understood the term “law” in its “substantive” sense, not its “formal” one; it has included both “written law”, encompassing enactments of lower ranking statutes (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 93, Series A no. 12) and regulatory measures taken by professional regulatory bodies under independent rule ‑ making powers delegated to them by Parliament (see Barthold v. Germany, judgment of 25 March 1985, § 46, Series A no. 90), and unwritten law. “Law” must be understood to include both statutory law and judge-made “law” (see, among many other authorities, The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 47, Series A no. 30; and Kruslin, cited above, § 29). In sum, the “law” is the provision in force as the competent courts have interpreted it (see Leyla Şahin, cited above, § 88). 105. In the present case, the Court observes that it is not in dispute between the parties that the interference in question had a legal basis : By the judgment of 11 November 2008, the applicant was convicted of the crimes proscribed by Article 314 § 2 of Law no. 5237, with reference to Articles 220 § 6 and 314 § 3 of the same Law; sections 23(b) and 33(c) of Law no. 2911; and section 7(2) of the Prevention of Terrorism Act (Law no. 3713). The applicant ’ s criminal convictions contained in the judgment of 20 December 2012 were based on section 7(2) of Law no. 3713, sections 33(1), 32(1) and (2) of Law no. 2911 and Article 265 § 1 of the Criminal Code. 106. As regards the applicant ’ s conviction under Article 314 § 2 of the Criminal Code with reference to Articles 220 § 6 and 314 § 3 of the same Code, the Court observes that the decision of the Plenary Court of Cassation ( Criminal Divisions ) of 4 March 2008 concerns the conviction of a certain F.Ö. under Article 314 § 2 of Law no. 5237 with reference to Articles 220 § 6 and 314 § 3 of the same Code, section 7(2) of Law no. 3713 and section 32(1) and (3) of Law no. 2911 on account of his participation in and conduct during three demonstrations (see paragraphs 5 6 -5 9 above). The line of reasoning in this decision was also used by Diyarbakır Assize Court in its judgment of 11 November 2008 ( see paragraph 19 above). The Court therefore considers that the question as to whether the interference based on Article 314 § 2 of the Criminal Code with the applicant ’ s right to freedom of assembly was prescribed by law must be examined on the basis not only of the wording of Articles 220 § 6, 314 § 2 and 314 § 3 of the Criminal Code, but also on that of the decision of 4 March 2008. There remains the question of the accessibility and foreseeability of the effects of the aforementioned provisions and the decision of 4 March 2008, as well as their compatibility with the rule of law. 107. In this connection, the Court considers that there is no doubt that the aforementioned provisions of Laws nos. 5237, 3713 and 2911 were accessible. As to the decision of 4 March 2008, the Court observes that while this decision was not published in the Official Gazette, it was available on the Internet. Thus, the Court does not find it necessary to pursue further the issue of the accessibility of domestic law (see Roman Zakharov v. Russia [GC], no. 47143/06, § 242, 4 December 2015 ). 108. Regarding the question whether the domestic courts ’ interpretation of the offence of membership of an illegal organisation could reasonably be foreseen by the applicant at the material time, the Court observes that Diyarbakır Assize Court considered that the applicant had taken part in the demonstration of 14 July 2008 and committed the offences proscribed under sections 23(b) and 33(c) of Law no. 2911 and section 7(2) of the Prevention of Terrorism Act (Law no. 3713) on behalf of the PKK, given that the latter had made a general call for participation in this demonstration. The applicant was therefore convicted of membership of the PKK and sentenced to four years and two months ’ imprisonment. This interpretation of Articles 220 § 6 and 314 §§ 2 and 3 of the Criminal Code is in accordance with the reasoning contained in the decision of the Plenary Court of Cassation of 4 March 2008. According to this line of interpretation, at the material time, if a demonstrator took part in a demonstration or a march for which the PKK had made a general call to participate, and committed one or more offences proscribed under the criminal codes during that event, he or she would be liable to be punished not only for the individual offences committed but also for membership of the PKK. In the light of its examination of these matters below, from the point of view of the “necessity” of the interference in a democratic society (see paragraphs 1 10 ‑ 11 8 below), the Court considers that it is not required to reach a final conclusion on the lawfulness issue in so far as it relates to the applicant ’ s conviction under Article 314 § 2 of the Criminal Code. For the same reason, the Court does not deem it necessary to examine the lawfulness of the applicant ’ s convictions under section 7(2) of the Prevention of Terrorism Act (Law no. 3713) and sections 23(b) and 33(c) of Law no. 2911 by the judgment of 11 November 2008 and those under section 7(2) of Law no. 3713, sections 33(1), 32(1) and (2) of Law no. 2911 and Article 265 § 1 of the Criminal Code contained in the judgment of 20 December 2012. (c) Whether the interference pursued a legitimate aim 109. The Court is of the opinion that, in the present case, the national authorities may be considered to have pursued the legitimate aims of preventing disorder and crime and the protection of the rights and freedoms of others. (d) Whether the interference was necessary in a democratic society 110. The Court reiterates that the right to freedom of assembly is a fundamental right in a democratic society and is one of the foundations of such a society. This right, of which the protection of personal opinion is one of the objectives, is subject to a number of exceptions which must be narrowly interpreted, and the necessity for any restrictions must be convincingly established. When examining whether restrictions on the rights and freedoms guaranteed by the Convention can be considered “necessary in a democratic society” the Contracting States enjoy a certain but not unlimited margin of appreciation. It is, in any event, for the European Court to give a final ruling on the restriction ’ s compatibility with the Convention and this is to be done by assessing the circumstances of a particular case (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 142, 15 October 2015; Galstyan, cited above, § 114, and the cases cited therein). 111. In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole. An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see Navalnyy and Yashin v. Russia, no. 76204/11, § 53, 4 December 2014). In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 11 of the Convention (see, Kudrevičius and Others cited above, § 143; and also mutatis mutandis, Cumhuriyet Vakfı and Others, cited above, § 59 ). The Court further reiterates that the nature and severity of the penalties imposed are also factors to be taken into account when assessing the proportionality of the interference (see, mutatis mutandis, Başkaya and Okçuoğlu v. Turkey [GC], nos. 23 536/94 and 24408/94, § 66, ECHR 1999 ‑ IV; Kar and Others v. Turkey, no. 58756/00, § 48, 3 May 2007; and Murat Vural v. Turkey, no. 9540/07, § 64, 21 October 2014 ). 112. In the present case, the Court observes at the outset that Diyarbakır Assize Court concluded that the applicant had participated in the march as a result of the calls of the PKK published on two websites when it convicted the applicant of membership of the PKK, without providing any reason for that conclusion. Even assuming that the applicant took part in the demonstration of 14 July 2008 after having received the PKK ’ s call, the Court observes that there is no justification in the first-instance court ’ s judgment for the conclusion that the applicant participated in the demonstration and acted pursuant to the PKK ’ s purposes or on behalf of that organisation upon its specific instructions to him. In this regard, the Court agrees with the Council of Europe ’ s Commissioner for Human Rights that the conviction of a person for membership of an illegal organisation for an act or statement which may be deemed to coincide with the aims or instructions of an illegal organisation is of concern (see paragraphs 6 6 -6 9 above). 113. Likewise, the judgment of Diyarbakır Assize Court does not contain any information as to the reasons for which the applicant was found guilty of disseminating propaganda in support of a terrorist organisation. The Assize Court did not explain which of the acts of the applicant, a fifteen - year-old boy at the material time, constituted the offence proscribed by section 7(2) of Law no. 3713. Besides, the assize court noted in its judgment that in his statements before the national authorities the applicant had accepted that he had made propaganda in support of an illegal organisation (see paragraph 19 above), whereas there is nothing in the case file to substantiate this finding. Both before the Diyarbakır public prosecutor and the Fifth Division of Diyarbakır Assize Court the applicant maintained that he had participated in the demonstration, chanted the slogan “Long live President Öcalan” and thrown stones at the police when they intervened (see paragraphs 12, 13 and 16 above). On no occasion did he state that he had disseminated propaganda in support of the PKK. Besides, Diyarbakır Juvenile Court also failed to offer an explanation for the applicant ’ s conviction under section 7(2) of Law no. 3713 (see paragraph 3 7 above). 114. The Court reiterates in this connection that the obligation to provide reasons for a decision is an essential procedural safeguard under Article 6 § 1 of the Convention, as it demonstrates to the parties that their arguments have been heard, affords them the possibility of objecting to or appealing against the decision, and also serves to justify the reasons for a judicial decision to the public. This general rule, moreover, translates into specific obligations under Articles 10 and 11 of the Convention, by requiring domestic courts to provide “relevant” and “sufficient” reasons for an interference. This obligation enables individuals, amongst other things, to learn about and contest the reasons behind a court decision that limits their freedom of expression or freedom of assembly, and thus offers an important procedural safeguard against arbitrary interference with the rights protected under Articles 10 and 11 of the Convention. The Court is of the opinion that the failure of the domestic courts to provide relevant and sufficient reasons to justify the applicant ’ s conviction under Article 314 § 2 of the Criminal Code and section 7(2) of Law no. 3713 also stripped the applicant of the procedural protection that he was entitled to enjoy by virtue of his right under Article 1 1 (see, mutatis mutandis, Saygılı and Seyman v. Turkey, no. 51041/99, § 24, 27 June 2006; Menteş v. Turkey (no. 2), no. 33347/04, §§ 51-54, 25 January 2011; and Cumhuriyet Vakfı and Others, cited above, §§ 67- 68, and the cases cited therein ). 115. In assessing the proportionality of the interference with the applicant ’ s right to freedom of assembly, the Court has also had regard to the fact that the applicant was a minor at the relevant time. In this context, the Court notes Article 37 of the UN Convention on the Rights of the Child and General Comment No. 10 (2007) of the United Nations Committee on the Rights of the Child, according to which the arrest, detention or imprisonment of a child can be used only as a measure of last resort and for the shortest appropriate period of time (see paragraphs 60 and 61 above). The Committee of Ministers and the Parliamentary Assembly of the Council of Europe also issued resolutions and recommendations in the same vein (see paragraphs 6 2 -6 4 above). In the present case, there is nothing in the case file to show that the national courts sufficiently took the applicant ’ s age into consideration in ordering and continuing his detention on remand or in imposing a prison sentence. The Court notes the extreme severity of the penalties imposed on the applicant by Diyarbakır Assize Court pursuant to Article 314 § 2 of the Criminal Code and section 7(2) of Law no. 3713, that is, a total of four years, eight months and twenty days of imprisonment, a sentence that the applicant partly served for a period of one year and eight months before he was released. What is more, the applicant was detained pending trial for almost four months and the Government did not argue that alternative methods had been considered first or that the applicant ’ s detention had been used only as a measure of last resort, in compliance with their obligations under both domestic law and a number of international conventions (see, mutatis mutandis, Güveç v. Turkey, no. 70337/01, § 108, ECHR 2009 (extracts) ). 116. Finally, as to the applicant ’ s conviction under sections 23(b) and 33(c) of Law no. 2911 and subsequently under sections 32 (1) and (2), 33(1) of Law no. 2911 and Article 265 § 1 of the Criminal Code for throwing stones at police officers, the Court first observes that both the applicant ’ s statements before the national authorities and the photographs in the case file reveal that he threw stones at the security forces and was thus involved in an act of violence. The Court considers that when individuals are involved in such acts the State authorities enjoy a wider margin of appreciation when examining the need for an interference with freedom of assembly (see, mutatis mutandis, Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999 ‑ IV). As a result, the imposition of a sanction for such a reprehensible act would be considered to be compatible with the guarantees of Article 11 of the Convention, as also submitted by the Government (see Osmani and Others, cited above; Galstyan, cited above, § 115; and Yılmaz Yıldız and Others, cited above, § 42). While it is true that with the judgment of 20 December 2012 the juvenile court decided to suspend the pronouncement of the criminal convictions arising from the applicant ’ s act of violence, the Court cannot overlook the harshness of the sentence imposed on the applicant by Diyarbakır Assize Court pursuant to sections 23(b) and 33(c) of Law no. 2911, that is to say, two years, nine months and ten days ’ imprisonment, a sentence that the applicant partly served, or the lengthy period during which he was detained pending trial. In the Court ’ s view, its considerations regarding the disproportionate nature of the penalties imposed on the applicant by the assize court pursuant to Article 314 § 2 of the Criminal Code and section 7(2) of Law no. 3713 equally apply under this head, in particular, in view of the applicant ’ s age. In this context, the Court cannot but conclude that the applicant ’ s punishment for throwing stones at the police officers during the demonstration was not proportionate to the legitimate aims pursued. 117. In the light of the foregoing, the Court finds that the applicant ’ s criminal convictions for membership of the PKK, dissemination of propaganda in support of the PKK and resistance to the police as well as the imposition upon him of prison sentences and his detention between 21 July 2008 and 25 July 2010, were not “necessary in a democratic society”. There has accordingly been a violation of Article 11 of the Convention. II. ALLEGED VIOLATIONS OF ARTICLES 5 AND 6 OF THE CONVENTION AND ARTICLE 2 OF PROTOCOL No. 1 TO THE CONVENTION 118. The applicant complained of a violation of Article 5 of the Convention and Article 2 of Protocol No. 1 to the Convention. He further complained that he should have been tried by a juvenile court and not an assize court. 119. The Court observes that the applicant submitted these complaints in very general terms and failed to provide detailed explanations or supporting documents. He thereby failed to lay the basis of an arguable claim, which might have allowed its effective examination by the Court. 120. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 121. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 122. The applicant did not submit a claim for just satisfaction within the specified time-limit. Accordingly, the Court considers that there is no call to award him any sum on that account. | The Court held that there had been a violation of Article 11 (freedom of assembly and association) of the Convention. It first of all noted that, even if the applicant had been convicted of an act of violence against police officers, there was nothing to suggest that when joining the demonstration, he had had any violent intentions. Furthermore, it took issue with the fact that the domestic courts had failed to provide any reasons for his conviction of membership of the PKK or of disseminating propaganda in support of a terrorist organisation. Moreover, it also noted the extreme severity of the penalties – a total of seven years and six months’ imprisonment – imposed on the applicant, only 15 years old at the time of the incident, sentences that he partly served for a period of one year and eight months, after having been detained pending trial for almost four months. The Court therefore concluded that, given the applicant’s young age, the harshness of the sentences imposed was disproportionate to the legitimate aims of preventing disorder and crime and the protection of the rights and freedoms of others. |
80 | Parental authority, child custody and access rights | II. RELEVANT DOMESTIC LAW 15. Act no. IV of 1952 on Marriage, Family and Guardianship (“the Csjt.”) provides as follows: Section 1 “(2) In the application of this Act the minor child’s interest shall always be taken into account and his or her rights shall be safeguarded.” Section 92 “(1) The child shall have the right to maintain direct contact in person with his or her parent living separately. Maintenance of regular contact with the child is a right and obligation of the parent living separately (access rights). The parent or any other person bringing up the child shall be under the obligation of ensuring undisturbed maintenance of contact. (2) A parent shall – unless [subject to a restraining order] – have the right to maintain contact with his or her child even where the parent’s custody rights are suspended. (3) In exceptionally justified cases, in the interest of the child, the parent whose custody was withdrawn by the court or ceased under section 48 (3) and the child has not been adopted may also be entitled to maintain contact with his or her child. Such a decision shall be delivered by the court which terminated the parent’s custody or – where the child has been placed in permanent foster care – by the guardianship authority. (4) In absence of agreement between the parents, or in case of dispute between the parents and the guardian, the decision on the maintenance of contact shall be taken by the guardianship authority. The guardianship authority or the court proceeding in marriage- or child-placement-related cases may restrict or terminate this right or suspend its exercise. (5) Where the decision on the maintenance of contact was taken by a court, amendment of the court’s decision may only be sought before a court, within two years from its having become final. (6) The execution of the court decision on the maintenance of contact shall be arranged for by the guardianship authority.” 16. Government Decree no. 149/1997. (IX. 10.) on Child Custody Boards, Child Protection Procedure and Child Custody Board Procedure provides as follows: Section 27 “(1) The aim of the access rights is: a) to maintain family contact between the child and the persons entitled to access according to paragraph (1) of section 28, and b) that the parent having access rights follow continuously and support, by doing his/her utmost, the upbringing and the growth of the child.” Section 28 “(1) The parents, the grandparents, the major siblings ... are all entitled to access.” Section 30 “(6) The guardianship authority or the court may appoint as the place of exercising access rights the [premises of the child welfare centre].” Section 30/A “(1) If the parents ... cannot find an agreement about the time or manner of exercising access rights, the guardianship authority shall draw the parties’ attention to the possibility of availing themselves of ‘mediation with a view to protecting the child’ ( gyermekvédelmi közvetítői eljárás ).” Section 31 “(5) The guardianship authority or the court may – upon request – withdraw the access rights of the person with access if he or she exercises the access rights in grave violation of the interest of the child or the person having custody and by this conduct gravely endangers the child’s upbringing and development.” Section 32 “(1) The re-regulation of access rights – not including the restriction, suspension or withdrawal of the access rights – may be requested within two years from the date on which the decision thereon became final, if the circumstances underlying the decision of the court or the guardianship authority have later significantly changed and the re-regulation of the access rights serves the interest of the child... (4) In the proceedings for the re-regulation of the access rights the guardianship authority or the court may, upon request, in the interest of the child, lift the restrictions imposed on the access rights and may restore the access rights where the circumstances on which the decision was based no longer prevail.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 14 READ IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION 17. The applicant complained that the denial of his access rights in respect of his son had been based on his adherence to the religious denomination Hit Gyülekezete, amounting to a differential treatment in respect of the enjoyment of his right to respect for family life. He claimed in this respect a violation of his rights under Article 8 of the Convention, both taken alone and read in conjunction with Article 14. He further complained that his right to freedom of thought, conscience and religion had been violated, since the impugned measure had been directly linked to the manifestation of his religious belief and thus fell within the ambit of Article 9 of the Convention. Article 8 reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 9 provides as follows: “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” Article 14 reads as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 18. The Government contested these arguments. 19. The Court considers that it is appropriate to examine the applicant’s complaints under Article 14 read in conjunction with Article 8 of the Convention (see, e.g., mutatis mutandis, Zaunegger v. Germany, no. 22028/04, § 34, 3 December 2009). A. Admissibility 20. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ arguments a. The applicant 21. The applicant submitted that he had been treated differently due to his religious convictions in respect of the enjoyment of his rights under Article 8 of the Convention from other persons seeking access rights to their children following divorce or separation. In particular, he submitted that the domestic authorities’ decision withdrawing his access rights in respect of his son on the basis of his religious beliefs had amounted to an unjustifiable interference with his right to respect for family life. 22. The applicant moreover argued that access to his son had been refused not in the interest of the child’s physical or mental integrity but due to his religious convictions. Relying in particular on the decision of the Csongrád County Regional Court, he claimed that the domestic courts had found deficiencies in his methods and ideas of upbringing since he had intended to transfer his religious worldview to his son. 23. Furthermore, the applicant submitted that although several less restrictive measures existed under Hungarian law, the domestic authorities had failed to examine them. b. The Government 24. The Government acknowledged that there had been an interference with the applicant’s right to family life. They stressed however that intervention by the domestic courts had been prescribed by law, namely section 92 (4) of the Csjt. (see paragraph 15 above). Moreover, it pursued a legitimate aim, that is, the protection of the child’s interests, and was necessary in a democratic society. They added that in this field the child’s interests were paramount, overriding the interests of the parents. 25. The Government moreover disputed the allegation that in the instant case the applicant had been treated differently. They pointed out that the domestic courts had taken into account, in accordance with the Hungarian law, the child’s best interest alone, and the decisions of the Szeged District Court and the Csongrád Court of Appeal had been based on the fact that, in the circumstances of the case, the maintenance of the applicant’s contact rights would not have served the child’s interest. 26. The Government concluded that the domestic courts, in reaching their decision, had had regard exclusively to the overriding interest of the child and not the applicant’s religious beliefs. Thus, the applicant had not been discriminated against in any manner. 2. The Court’s assessment 27. The Court reiterates that Article 14 of the Convention complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded thereby. Although the application of Article 14 does not presuppose a breach of those provisions, there can be no room for its application unless the facts at issue fall within the ambit of one or more of them (see, among many other authorities, Camp and Bourimi v. the Netherlands, no. 28369/95, § 34, ECHR 2000 ‑ X). 28. The Court notes at the outset that in the instant case the applicant had regular contact with his son until the decision of the Csongrád County Regional Court of 4 February 2008 which deprived him of all access rights (see paragraph 14 above). In this respect, the Court recalls that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life (see Eriksson v. Sweden, 22 June 1989, § 58, Series A no. 156). The applicant having been deprived of this element, the Court finds that the Regional Court’s decision constituted an interference with the applicant’s right to respect for family life. Thus the case falls within the ambit of Article 8 of the Convention. 29. The Court further reiterates that in the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without an objective and reasonable justification, of persons in similar situations (see Hoffmann v. Austria, 23 June 1993, § 31, Series A no. 255 ‑ C). In other words, the notion of discrimination includes in general cases where a person or group is treated, without proper justification, less favourably than another (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 82, Series A no. 94). 30. Consequently, it must first be determined whether the applicant can complain of such a difference in treatment in regard to his right to respect for family life. 31. The Court will first ascertain whether or not the applicant’s access rights were removed essentially on account of his religious conviction. It is true that the domestic courts had regard above all to the child’s interest when granting the request for the withdrawal of the applicant’s access rights (see paragraph 13 above). However, the Court notes that when deciding on the applicant’s suitability to contribute to his son’s development, the domestic authorities added to their consideration the factor – for that matter, evidently the decisive one – of the applicant’s religious conviction and its possible effects on the child. In particular, the Regional Court based its ruling on the expert opinion stating that the applicant’s “irrational worldview made him incapable of bringing up his child”. Furthermore, the Regional Court held against the applicant that during his contacts with the child, he had intended to transfer his religious convictions to him (see paragraph 14 above). It does not appear that other points of fact or law were considered in depth. In this connection, the Court has already held that a distinction based essentially on a difference in religion alone is not acceptable (see Hoffmann, cited above, § 36). Therefore, in the Court’s view, the applicant’s religious convictions had a direct bearing on the outcome of the matter in issue. Consequently, there has been a difference of treatment between the applicant and other parents in an analogous situation, which consisted of reproaching the applicant for his strong religious convictions. 32. As has been well established in the Court’s case-law, such a difference in treatment is discriminatory in the absence of an “objective and reasonable justification”, that is, if it is not justified by a “legitimate aim” and if there is no “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see, among other authorities, Palau-Martinez v. France, no. 64927/01, § 39, ECHR 2003 ‑ XII). 33. The Court is of the opinion that the aim pursued in the instant case, namely the protection of the health and rights of the child, is legitimate. 34. It remains to be determined whether there was a reasonable relationship of proportionality between the means employed, namely depriving the father of his access rights altogether, and the legitimate aim pursued. 35. The Court recalls that Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment. The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the circumstances, the subject matter and its background (see Zaunegger, cited above, § 50). 36. The Court notes that the subject matter of this case is the applicant’s differential treatment in the context of the total removal of his access rights to his son, and this to a decisive extent on account of the applicant’s religious beliefs. It considers that, in the light of the importance of the rights enshrined in Article 9 of the Convention in guaranteeing the individual’s self-fulfilment, such a treatment will only be compatible with the Convention if very weighty reasons exist. The Court has applied a similar approach in the context of differences in treatment on the basis of sex (see Abdulaziz, Cabales and Balkandali, cited above, § 50), birth status (see Inze v. Austria, 28 October 1987, § 41, Series A no. 126), sexual orientation (see L. and V. v. Austria, nos. 39392/98 and 39829/98, § 50, ECHR 2003 ‑ I) and nationality ( Gaygusuz v. Austria, 16 September 1996, § 42, Reports of Judgments and Decisions 1996 ‑ IV). 37. In the present case, the Government have pointed to the importance of protecting the child’s psychological health from the purported stress exerted by the applicant’s intensive efforts to transfer his convictions to him. While the Court accepts that the domestic authorities may have showed legitimate concern in this respect, it has reservations as to whether this consideration qualifies as a very weighty reason allowing for differential treatment. It would add that the rights to respect for family life and religious freedom as enshrined in Articles 8 and 9 of the Convention, together with the right to respect for parents’ philosophical and religious convictions in education, as provided in Article 2 of Protocol No. 1 to the Convention, convey on parents the right to communicate and promote their religious convictions in the bringing up of their children. The Court adds in this context that this would be an uncontested right in the case of two married parents sharing the same religious ideas or worldview and promoting them to their child, even in an insistent or overbearing manner, unless this exposes the latter to dangerous practices or to physical or psychological harm, and it sees no reason why the position of a separated or divorced parent who does not have custody of his or her child should be different per se. 38. The Court observes that in the present case there is no evidence that the applicant’s religious convictions involved dangerous practices or exposed his son to physical or psychological harm. It is true that the expert appointed by the District Court considered that the applicant’s participation in the boy’s life was harmful, notably because of his insistence on proselytism (see paragraph 12 above) but no convincing evidence was presented to substantiate a risk of actual harm, as opposed to the mere unease, discomfort or embarrassment which the child may have experienced on account of his father’s attempts to transmit his religious beliefs. The Court notes in this connection that the expert did not examine the applicant, nor was his suggestion that the applicant should be examined by a psychiatrist followed up. It further notes that while the Regional Court, in upholding the first-instance judgment, referred to the child’s “anxiety and fear”, it deprived the applicant of his access rights essentially on account of the applicant’s “irrational worldview” and his attempts to impose his religious convictions on the child, without explaining what real harm these caused to the child. 39. In any event, even assuming that the authorities’ concern about the psychological damage the applicant’s child may have suffered amounts to a very weighty reason for the purposes of assessing the differential treatment in question, the Court considers that the solution chosen by the authorities in the face of this problem cannot be accepted for the following reasons. 40. In respect of restrictions on family life, the Court reiterates that as regards restrictions placed by authorities on parental rights of access, a stricter scrutiny is called for than in the context of custody (see Görgülü v. Germany, no. 74969/01, § 42, 26 February 2004). It is in a child’s interest for its family ties to be maintained, as severing such ties means cutting a child off from its roots (see Gnahoré v. France, no. 40031/98, § 59, ECHR 2000 ‑ IX). 41. The Court observes that the domestic courts’ decisions on the removal of the applicant’s access rights rendered impossible any form of contact and the establishment of any kind of further family life. It is to be recalled that a measure as radical as the total severance of contact can be justified only in exceptional circumstances (see B. v. the United Kingdom, 8 July 1987, § 77, Series A no. 121). 42. In the instant case, the Court considers that the Government have not demonstrated the presence of such exceptional circumstances. This is all the more troubling in the face of the fact that – although the domestic courts examined the psychological strain which his father’s religious practice would represent for the child (see paragraph 14 above) – they gave no consideration to the question whether the mere suspension of the applicant’s access for a certain period of time or any other less severe measure that exists under Hungarian law (such as the exercise of access rights in controlled circumstances) would have been sufficient to allow the child to regain his emotional balance. Instead, they decided to apply an absolute ban on the applicant’s access rights. For the Court, the approach adopted by those authorities amounted to a complete disregard of the principle of proportionality, requisite in this field and inherent in the spirit of the Convention. 43. In sum, in view of the fact that the domestic courts applied a very restrictive measure to the applicant’s detriment, without giving due consideration to possible alternatives, the Court concludes that in respect of the measure at issue there was no reasonable relationship of proportionality between a total ban on the applicant’s access rights and the aim pursued, namely the protection of the best interest of the child. Consequently, the applicant has been discriminated against on the basis of his religious convictions in the exercise of his right to respect for family life. There has accordingly been a violation of Article 14 of the Convention, taken together with Article 8 in the instant case. II. ALLEGED VIOLATION OF ARTICLE 8 TAKEN ALONE OR ARTICLE 9 TAKEN ALONE OR IN CONJUNCTION WITH ARTICLE 14 44. The applicant further complained that there had been an interference with his freedom of religion within the meaning of Article 9 of the Convention, and that this interference was discriminatory within the meaning of Article 9 taken in conjunction with Article 14. He also complained that there had been a breach of Article 8 taken alone. 45. The Court considers that, while these complaints are also admissible, no separate issue arises under these provisions, since the factual circumstances relied on are the same as those for the complaint examined under Article 14 taken in conjunction with Article 8, in respect of which a violation has been found. III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 46. Lastly, invoking Article 6 of the Convention, the applicant complained that the courts had dealt with his case in an unfair manner, accepting unsubstantiated allegations about his capacity to contribute to the upbringing of his child. 47. The Court considers that, while this complaint is also admissible, no separate issue arises under this provision, since the factual circumstances relied on are the same as those for the complaint examined under Article 14 taken in conjunction with Article 8, in respect of which a violation has been found. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 48. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 49. The applicant claimed 642,857 euros (EUR) in respect of non-pecuniary damage. 50. The Government contested this claim. 51. The Court considers that the applicant must have suffered some non-pecuniary damage and awards him, on the basis of equity, EUR 12,500 under this head. B. Costs and expenses 52. The applicant also claimed EUR 6,429 for the costs and expenses incurred before the Court. This sum corresponds to 42 hours of legal work billable by his lawyer charged at an hourly rate of EUR 120 plus VAT (that is, EUR 6,400.80) as well as travel costs in the amount of EUR 28.84. 53. The Government contested this claim. 54. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,000 covering costs under all heads. C. Default interest 55. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 14 (prohibition of discrimination) read in conjunction with Article 8 (right to respect for private and family life) of the Convention. It found that the Hungarian courts had failed to prove that it was in the child’s best interest to have all ties severed with his father, who had therefore been discriminated against in the exercise of his right to respect for family life. Indeed, there had been no exceptional circumstance to justify taking such a radical measure as severing all form of contact and family life between the applicant and his son. |
278 | (3) Derogations cannot be incompatible with other obligations in international law | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Introduction 12. The emergency situation in Northern Ireland in the early 1970s and the attendant level of terrorist activity form the background to the introduction of the Prevention of Terrorism (Temporary Provisions) Act 1974 ("the 1974 Act"). Between 1972 and 1992, over three thousand deaths were attributable to terrorism in Northern Ireland. In the mid 1980s, the number of deaths was significantly lower than in the early 1970s but organised terrorism has continued to grow. Since the commencement of the terrorist campaign there have been 35,104 people injured in Northern Ireland as a result of terrorist acts. Many of these injuries involved loss of limbs and permanent physical disability. In the same period there have been a total of 41,859 terrorist shooting or bombing incidents. Other parts of the United Kingdom have also been subjected to a considerable scale of terrorist violence. 13. The 1974 Act came into force on 29 November 1974. The Act proscribed the Irish Republican Army ("IRA") and made it an offence to display support in public of that organisation in Great Britain. The IRA was already a proscribed organisation in Northern Ireland. The Act also conferred special powers of arrest and detention on the police so that they could deal more effectively with the threat of terrorism (see paragraphs 16-17 below). This Act was subject to renewal every six months by Parliament so that, inter alia, the need for the continued use of the special powers could be monitored. The Act was thus renewed until March 1976, when it was re-enacted with certain amendments. Under section 17 of the 1976 Act, the special powers were subject to parliamentary renewal every twelve months. The 1976 Act was in turn renewed annually until 1984, when it was re-enacted with certain amendments. The 1984 Act, which came into force in March 1984, proscribed the Irish National Liberation Army as well as the IRA. It was renewed every year until replaced by the 1989 Act which came into force on 27 March 1989. Section 14 of the 1989 Act contains provisions similar to those contained in section 12 of the 1984 Act. 14. The 1976 Act was reviewed by Lord Shackleton in a report published in July 1978 and subsequently by Lord Jellicoe in a report published in January 1983. Annual reports on the 1984 Act have been presented to Parliament by Sir Cyril Philips (for 1984 and 1985) and Viscount Colville (from 1986-1991). A wider-scale review of the operation of the 1984 Act was also carried out by Viscount Colville in 1987. 15. These reviews were commissioned by the Government and presented to Parliament to assist consideration of the continued need for the legislation. The authors of these reports concluded in particular that in view of the problems inherent in the prevention and investigation of terrorism, the continued use of the special powers of arrest and detention was indispensable. The suggestion that decisions extending detention should be taken by the courts was rejected, notably because the information grounding those decisions was highly sensitive and could not be disclosed to the persons in detention or their legal advisers. For various reasons, the decisions were considered to fall properly within the sphere of the executive. In his 1987 report reviewing the provisions of section 12, Viscount Colville considered that good reasons existed for extending detention in certain cases beyond forty-eight hours and up to seven days. He noted in this regard that the police in Northern Ireland were frequently confronted by a situation where they had good intelligence to connect persons with a terrorist incident but the persons concerned, if detained, made no statements, and witnesses were afraid to come forward, certainly in court: in these circumstances, it was concluded, the reliance on forensic evidence by the prosecution was increasing, and detective work had assumed a higher degree of importance. He also set out the reasons which individually or, as often, in combination constituted good grounds for extending the various periods within which otherwise persons suspected of involvement in terrorism would have to be charged or taken to court. These included checking of fingerprints; forensic tests; checking the detainee ’ s replies against intelligence; new lines of inquiry; information obtained from one or more than one other detainee in the same case; finding and consulting other witnesses (Command Paper 264, paragraphs 5.1.5-5.1.7, December 1987). B. Power to arrest without warrant under the 1984 and other Acts 16. The relevant provisions of section 12 of the 1984 Act, substantially the same as those of the 1974 and 1976 Acts, are as follows: "12. (1) [A] constable may arrest without warrant a person whom he has reasonable grounds for suspecting to be ... (b) a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism to which this Part of this Act applies; ... (3) The acts of terrorism to which this Part of this Act applies are (a) acts of terrorism connected with the affairs of Northern Ireland; ... (4) A person arrested under this section shall not be detained in right of the arrest for more than forty-eight hours after his arrest; but the Secretary of State may, in any particular case, extend the period of forty-eight hours by a period or periods specified by him. (5) Any such further period or periods shall not exceed five days in all. (6) The following provisions (requirement to bring accused person before the court after his arrest) shall not apply to a person detained in right of the arrest ... (d) Article 131 of the Magistrates ’ Courts ( Northern Ireland ) Order 1981; ... (8) The provisions of this section are without prejudice to any power of arrest exercisable apart from this section." 17. According to the definition given in section 14 (1) of the 1984 Act, "terrorism means the use of violence for political ends, and includes any use of violence for the purpose of putting the public or any section of the public in fear". An identical definition of terrorism in the Northern Ireland (Emergency Provisions) Act 1978 was held to be "in wide terms" by the House of Lords, which rejected an interpretation of the word "terrorist" that would have been "in narrower terms than popular usage of the word ‘ terrorist ’ might connote to a police officer or a layman" (McKee v. Chief Constable for Northern Ireland [1985] 1 All England Law Reports 1 at 3-4, per Lord Roskill ). C. Detention under the ordinary criminal law 18. Article 131 of the Magistrates ’ Courts (Northern Ireland) Order 1981, declared inapplicable in cases of suspected terrorism by section 12(6)(d) of the 1984 Act (see paragraph 16 above), provided that where a person arrested without warrant was not released from custody within twenty-four hours, he had to be brought before a Magistrates ’ Court as soon as practicable thereafter but not later than forty-eight hours after his arrest. 19. Article 131 was repealed by the Police and Criminal Evidence ( Northern Ireland ) Order 1989 (Statutory Instrument 1989/1341 (Northern Ireland) 12). Under the provisions of the 1989 Order (which corresponds directly with the Police and Criminal Evidence Act 1984 in force in England and Wales) a person arrested on suspicion of his involvement in an offence may initially not be kept in police detention for more than twenty-four hours without being charged (Article 42(1)). On the authority of a police officer of the rank of Superintendent or above, the detention may be extended for a period not exceeding thirty-six hours from the time of arrest, or arrival at a police station after arrest, when the officer concerned: "... has reasonable grounds for believing that - (a) the detention of that person without charge is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him; (b) an offence for which he is under arrest is a serious arrestable offence; (c) the investigation is being conducted diligently and expeditiously." (Article 43(1)) By Article 44(1) of the Order a Magistrates ’ Court is empowered, on a complaint in writing by a constable, to extend the period of police detention if satisfied that there are reasonable grounds for believing that the further detention of that person is justified. Detention is only justified for these purposes if the conditions set out in (a)-(c) above are satisfied (Article 44(4)). The person to whom the complaint relates must be furnished with a copy of the complaint and brought before the court for the hearing (Article 44(2)) and is entitled to be legally represented at the hearing (Article 44(3)). The period of further detention authorised by the warrant may not exceed thirty-six hours (Article 44(12)). By Article 45 a Magistrates ’ Court may, on a complaint in writing by a constable, extend the period of detention for such period as the court thinks fit, having regard to the evidence before it (Article 45(1), (2)). This additional extension may not exceed thirty-six hours and may not end later than ninety-six hours after the time of arrest or arrival at the police station after arrest (Article 45(3)). D. Exercise of the power to make an arrest under section 12(1)(b) of the 1984 Act 20. In order to make a lawful arrest under section 12(1)(b) of the 1984 Act, the arresting officer must have a reasonable suspicion that the person being arrested is or has been concerned in the commission, preparation or instigation of acts of terrorism. In addition, an arrest without warrant is subject to the applicable common law rules laid down by the House of Lords in the case of Christie v. Leachinsky [1947] Appeal Cases 573 at 587 and 600. The person being arrested must in ordinary circumstances be informed of the true ground of his arrest at the time he is taken into custody or, if special circumstances exist which excuse this, as soon thereafter as it is reasonably practicable to inform him. This does not require technical or precise language to be used provided the person being arrested knows in substance why. In the case of Ex parte Lynch [1980] Northern Ireland Reports 126 at 131, in which the arrested person sought a writ of habeas corpus, the High Court of Northern Ireland discussed section 12(1)(b). The arresting officer had told the applicant that he was arresting him under section 12 of the 1976 Act as he suspected him of being involved in terrorist activities. Accordingly, the High Court found that the lawfulness of the arrest could not be impugned in this respect. 21. The arresting officer ’ s suspicion must be reasonable in the circumstances and to decide this the court must be told something about the sources and grounds of the suspicion (per Higgins J. in Van Hout v. Chief Constable of the RUC and the Northern Ireland Office, decision of Northern Ireland High Court, 28 June 1984 ). E. Purpose of arrest and detention under section 12 of the 1984 Act 22. Under ordinary law, there is no power to arrest and detain a person merely to make enquiries about him. The questioning of a suspect on the ground of a reasonable suspicion that he has committed an arrestable offence is a legitimate cause for arrest and detention without warrant where the purpose of such questioning is to dispel or confirm such a reasonable suspicion, provided he is brought before a court as soon as practicable (R. v. Houghton [1979] 68 Criminal Appeal Reports 197 at 205, and Holgate -Mohammed v. Duke [1984] 1 All England Law Reports 1054 at 1059). On the other hand, Lord Lowry LCJ held in the case of Ex parte Lynch (loc. cit. at 131) that under the 1984 Act no specific crime need be suspected to ground a proper arrest under section 12(1)(b). He added (ibid.): "... [I]t is further to be noted that an arrest under section 12(1) leads ... to a permitted period of detention without preferring a charge. No charge may follow at all; thus an arrest is not necessarily ... the first step in a criminal proceeding against a suspected person on a charge which was intended to be judicially investigated." F. Extension of period of detention 23. In Northern Ireland, applications for extended detention beyond the initial forty-eight-hour period are processed at senior police level in Belfast and then forwarded to the Secretary of State for Northern Ireland for approval by him or, if he is not available, a junior minister. There are no criteria in the 1984 Act (or its predecessors) governing decisions to extend the initial period of detention, though strict criteria that have been developed in practice are listed in the reports and reviews referred to above (see paragraphs 14 and 15 above). According to statistics submitted by the Government a total number of 1,549 persons were arrested under the Prevention of Terrorism (Temporary Provisions) Act in 1990 of whom approximately 333 were eventually charged. Of these, 1,140 were detained for two days or less, 17% of whom were charged. However, of the 365 persons detained for more than two days and less than five days 39% were charged. In addition, of the 45 persons detained for more than five days some 67% were charged, many with serious offences including murder, attempted murder and causing explosions. In each of these cases the evidence which formed the basis of the charges only became available or was revealed in the latest stages of the detention of the person concerned. G. Rights during detention 24. A person detained under section 12 of the 1984 Act (now section 14 of the 1989 Act) has the rights, if he so requests, to have a friend, relative or other person informed of the fact and place of his detention and to consult a solicitor privately; he must be informed of these rights as soon as practicable. Any such requests must be complied with as soon as practicable. This may, however, be delayed for up to forty-eight hours in certain specified circumstances (sections 44 and 45 of the Northern Ireland (Emergency Provisions) Act 1991 - formerly sections 14 and 15 of the 1987 Act). A decision to deny access to a solicitor within the first forty-eight hours is subject to judicial review. Cases decided by the High Court in Northern Ireland establish that under section 45 of the Northern Ireland (Emergency Provisions) Act 1991 the power to delay access can only be used if the officer concerned has reasonable grounds for believing that the exercise of the right would have one or more of the specific consequences set out in subsection 8 of section 45. There is a burden on the officer concerned to show to the satisfaction of the court that he had reasonable grounds for his belief. In the absence of evidence to establish such reasonable grounds the court will order the immediate grant of access to a solicitor (decisions of the Northern Ireland High Court in applications for judicial review by Patrick Duffy ( 20 September 1991 ), Dermot and Deirdre McKenna ( 10 February 1992 ), Francis Maher and Others ( 25 March 1992 )). Since 1979, the practice has been that a detainee is not interviewed until he has been examined by a forensic medical officer. Thereafter, arrangements are made for the detainee to have access to a medical officer including his own doctor. There is provision for consultation with a forensic medical officer at a pre-arranged time each day. The above rights are briefly set out in a "Notice to Persons in Police Custody" which is served on persons arrested under section 12 when they are detained. H. Judicial involvement in terrorist investigations 25. Under paragraph 2 of Schedule 7 to the Prevention of Terrorism (Temporary Provisions) Act 1989 a justice of the peace may grant a warrant authorising a constable involved in a terrorist investigation to search premises and seize and retain anything found there if he has reasonable grounds for believing inter alia that it is likely to be of substantial value to the investigation. Paragraphs 5(1) and (4) of Schedule 7 confer a similar power on a circuit judge and on a county court judge in Northern Ireland. However, paragraph 8(2) provides that the Secretary of State may give to any constable in Northern Ireland the authority which may be given by a search warrant under paragraphs 2 and 5 if inter alia it appears to him that the disclosure of information that would be necessary for an application under those provisions "would be likely to prejudice the capability of members of the Royal Ulster Constabulary in relation to the investigation of offences ... or otherwise prejudice the safety of, or of persons in, Northern Ireland". PROCEEDINGS BEFORE THE COMMISSION 33. The applicants applied to the Commission on 19 January 1989 (applications nos. 14553/89 and 14554/89). They complained that they were not brought promptly before a judge, in breach of Article 5 para. 3 (art. 5-3). They also alleged that they did not have an enforceable right to compensation in breach of Article 5 para. 5 (art. 5-5) and that there was no effective remedy in respect of their complaints contrary to Article 13 (art. 13). They subsequently withdrew other complaints that they had made under Articles 3, 5 paras. 1 and 4, 8, 9 and 10 (art. 3, art. 5-1, art. 5-4, art. 8, art. 9, art. 10) of the Convention. 34. On 5 October 1990 the Commission ordered the joinder of the applications and on 28 February 1991 declared the case admissible. In its report of 3 December 1991 (Article 31) (art. 31) the Commission expressed the opinion: (a) by eight votes to five, that there had been no violation of Article 5 paras. 3 and 5 (art. 5-3, art. 5-5) of the Convention in view of the United Kingdom ’ s derogation of 23 December 1988 under Article 15 (art. 15) of the Convention; (b) unanimously, that no separate issue arose under Article 13 (art. 13). The full text of the Commission ’ s opinion and of the separate opinions contained in the report is reproduced as an annex to this judgment [*]. FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT 35. The Government requested the Court to find that there has been no violation of Article 5 paras. 3 and 5 (art. 5-3, art. 5-5) in view of the United Kingdom ’ s derogation of 23 December 1988 under Article 15 (art. 15) of the Convention and that there has been no violation of Article 13 (art. 13) or alternatively that no separate issue arises under this provision. AS TO THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 5 (art. 5) 36. The applicants, Mr Brannigan and Mr McBride, were detained under section 12 (1) (b) of the 1984 Act in early January 1989 very shortly after the Government ’ s derogation of 23 December 1988 under Article 15 (art. 15) of the Convention, which itself was made soon after the Court ’ s judgment of 29 November 1988 in the case of Brogan and Others (judgment of 29 November 1988, Series A no. 145-B). Their detention lasted for periods of six days, fourteen hours and thirty minutes, and four days, six hours and twenty-five minutes respectively (see paragraphs 10-11 above). They complained of violations of Article 5 paras. 3 and 5 (art. 5-3, art. 5-5) of the Convention. The relevant parts of Article 5 (art. 5) are as follows: "1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence ...; ... 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article (art. 5-1-c) shall be brought promptly before a judge or other officer authorised by law to exercise judicial power ... ... 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article (art. 5) shall have an enforceable right to compensation." 37. The Government, noting that both of the applicants were detained for longer periods than the shortest period found by the Court to be in breach of Article 5 para. 3 (art. 5-3) in the case of Brogan and Others, conceded that the requirement of promptness had not been respected in the present cases (see paragraph 30 above). They further accepted that, in the absence of an enforceable right to compensation in respect of the breach of Article 5 para. 3 (art. 5-3), Article 5 para. 5 (art. 5-5) had not been complied with. Having regard to its judgment in the case of Brogan and Others, the Court finds that Article 5 paras. 3 and 5 (art. 5-3, art. 5-5) have not been respected (loc. cit., pp. 30-35, paras. 55-62 and 66-67). 38. However, the Government further submitted that the failure to observe these requirements of Article 5 (art. 5) had been met by their derogation of 23 December 1988 under Article 15 (art. 15) of the Convention. The Court must therefore examine the validity of the Government ’ s derogation in the light of this provision. It recalls at the outset that the question whether any derogation from the United Kingdom ’ s obligations under the Convention might be permissible under Article 15 (art. 15) by reason of the terrorist campaign in Northern Ireland was specifically left open by the Court in the Brogan and Others case (loc. cit., pp. 27-28, para. 48). Validity of the United Kingdom ’ s derogation under Article 15 (art. 15) 39. The applicants maintained that the derogation under Article 15 (art. 15) was invalid. This was disputed by both the Government and the Commission. 40. Article 15 (art. 15) provides: "1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. 2. No derogation from Article 2 (art. 2), except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 (art. 3, art. 4-1, art. 7) shall be made under this provision. 3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed." 1. The Court ’ s approach to the matter 41. The applicants argued that it would be inconsistent with Article 15 para. 2 (art. 15-2) if, in derogating from safeguards recognised as essential for the protection of non- derogable rights such as Articles 2 and 3 (art. 2, art. 3), the national authorities were to be afforded a wide margin of appreciation. This was especially so where the emergency was of a quasi-permanent nature such as that existing in Northern Ireland. To do so would also be inconsistent with the Brogan and Others judgment where the Court had regarded judicial control as one of the fundamental principles of a democratic society and had already - they claimed - extended to the Government a margin of appreciation by taking into account in paragraph 58 (p. 32) the context of terrorism in Northern Ireland (loc. cit.). 42. In their written submissions, Amnesty International maintained that strict scrutiny was required by the Court when examining derogation from fundamental procedural guarantees which were essential for the protection of detainees at all times, but particularly in times of emergency. Liberty, Interights and the Committee on the Administration of Justice (" Liberty and Others") submitted for their part that, if States are to be allowed a margin of appreciation at all, it should be narrower the more permanent the emergency becomes. 43. The Court recalls that it falls to each Contracting State, with its responsibility for "the life of [its] nation", to determine whether that life is threatened by a "public emergency" and, if so, how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it. Accordingly, in this matter a wide margin of appreciation should be left to the national authorities (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp. 78-79, para. 207). Nevertheless, Contracting Parties do not enjoy an unlimited power of appreciation. It is for the Court to rule on whether inter alia the States have gone beyond the "extent strictly required by the exigencies" of the crisis. The domestic margin of appreciation is thus accompanied by a European supervision (ibid.). At the same time, in exercising its supervision the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation, the circumstances leading to, and the duration of, the emergency situation. 2. Existence of a public emergency threatening the life of the nation 44. Although the applicants did not dispute that there existed a public emergency "threatening the life of the nation", they submitted that the burden rested on the Government to satisfy the Court that such an emergency really existed. 45. It was, however, suggested by Liberty and Others in their written submissions that at the relevant time there was no longer any evidence of an exceptional situation of crisis. They maintained that reconsideration of the position could only properly have led to a further derogation if there was a demonstrable deterioration in the situation since August 1984 when the Government withdrew their previous derogation. For the Standing Advisory Commission on Human Rights, on the other hand, there was a public emergency in Northern Ireland at the relevant time of a sufficient magnitude to entitle the Government to derogate. 46. Both the Government and the Commission, referring to the existence of public disturbance in Northern Ireland, maintained that there was such an emergency. 47. Recalling its case-law in Lawless v. Ireland (judgment of 1 July 1961, Series A no. 3, p. 56, para. 28) and Ireland v. the United Kingdom (loc. cit., Series A no. 25, p. 78, para. 205) and making its own assessment, in the light of all the material before it as to the extent and impact of terrorist violence in Northern Ireland and elsewhere in the United Kingdom (see paragraph 12 above), the Court considers there can be no doubt that such a public emergency existed at the relevant time. It does not judge it necessary to compare the situation which obtained in 1984 with that which prevailed in December 1988 since a decision to withdraw a derogation is, in principle, a matter within the discretion of the State and since it is clear that the Government believed that the legislation in question was in fact compatible with the Convention (see paragraphs 49-51 below). 3. Were the measures strictly required by the exigencies of the situation? (a) General considerations 48. The Court recalls that judicial control of interferences by the executive with the individual ’ s right to liberty provided for by Article 5 (art. 5) is implied by one of the fundamental principles of a democratic society, namely the rule of law (see the above-mentioned Brogan and Others judgment, Series A no. 145-B, p. 32, para. 58). It further observes that the notice of derogation invoked in the present case was lodged by the respondent Government soon after the judgment in the above-mentioned Brogan and Others case where the Court had found the Government to be in breach of their obligations under Article 5 para. 3 (art. 5-3) by not bringing the applicants "promptly" before a court. The Court must scrutinise the derogation against this background and taking into account that the power of arrest and detention in question has been in force since 1974. However, it must be observed that the central issue in the present case is not the existence of the power to detain suspected terrorists for up to seven days - indeed a complaint under Article 5 para. 1 (art. 5-1) was withdrawn by the applicants (see paragraph 33 above) - but rather the exercise of this power without judicial intervention. (b) Was the derogation a genuine response to an emergency situation? 49. For the applicants, the purported derogation was not a necessary response to any new or altered state of affairs but was the Government ’ s reaction to the decision in Brogan and Others and was lodged merely to circumvent the consequences of this judgment. 50. The Government and the Commission maintained that, while it was true that this judgment triggered off the derogation, the exigencies of the situation have at all times since 1974 required the powers of extended detention conferred by the Prevention of Terrorism legislation. It was the view of successive Governments that these powers were consistent with Article 5 para. 3 (art. 5-3) and that no derogation was necessary. However, both the measures and the derogation were direct responses to the emergency with which the United Kingdom was and continues to be confronted. 51. The Court first observes that the power of arrest and extended detention has been considered necessary by the Government since 1974 in dealing with the threat of terrorism. Following the Brogan and Others judgment the Government were then faced with the option of either introducing judicial control of the decision to detain under section 12 of the 1984 Act or lodging a derogation from their Convention obligations in this respect. The adoption of the view by the Government that judicial control compatible with Article 5 para. 3 (art. 5-3) was not feasible because of the special difficulties associated with the investigation and prosecution of terrorist crime rendered derogation inevitable. Accordingly, the power of extended detention without such judicial control and the derogation of 23 December 1988 being clearly linked to the persistence of the emergency situation, there is no indication that the derogation was other than a genuine response. (c) Was the derogation premature? 52. The applicants maintained that derogation was an interim measure which Article 15 (art. 15) did not provide for since it appeared from the notice of derogation communicated to the Secretary General of the Council of Europe on 23 December 1988 that the Government had not reached a "firm or final view" on the need to derogate from Article 5 para. 3 (art. 5-3) and required a further period of reflection and consultation. Following this period the Secretary of State for the Home Department confirmed the derogation in a statement to Parliament on 14 November 1989 (see paragraph 32 above). Prior to this concluded view Article 15 (art. 15) did not permit derogation. Furthermore, even at this date the Government had not properly examined whether the obligation in Article 5 para. 3 (art. 5-3) could be satisfied by an "officer authorised by law to exercise judicial power". 53. The Government contended that the validity of the derogation was not affected by their examination of the possibility of judicial control of extended detention since, as the Commission had pointed out, it was consistent with the requirements of Article 15 para. 3 (art. 15-3) to keep derogation measures under constant review. 54. The Court does not accept the applicants ’ argument that the derogation was premature. While it is true that Article 15 (art. 15) does not envisage an interim suspension of Convention guarantees pending consideration of the necessity to derogate, it is clear from the notice of derogation that "against the background of the terrorist campaign, and the over-riding need to bring terrorists to justice, the Government did not believe that the maximum period of detention should be reduced". However it remained the Government ’ s wish "to find a judicial process under which extended detention might be reviewed and where appropriate authorised by a judge or other judicial officer" (see paragraph 31 above). The validity of the derogation cannot be called into question for the sole reason that the Government had decided to examine whether in the future a way could be found of ensuring greater conformity with Convention obligations. Indeed, such a process of continued reflection is not only in keeping with Article 15 para. 3 (art. 15-3) which requires permanent review of the need for emergency measures but is also implicit in the very notion of proportionality. (d) Was the absence of judicial control of extended detention justified? 55. The applicants further considered that there was no basis for the Government ’ s assertion that control of extended detention by a judge or other officer authorised by law to exercise judicial power was not possible or that a period of seven days ’ detention was necessary. They did not accept that the material required to satisfy a court of the justification for extended detention could be more sensitive than that needed in proceedings for habeas corpus. They and the Standing Advisory Commission on Human Rights also pointed out that the courts in Northern Ireland were frequently called on to deal with submissions based on confidential information - for example, in bail applications - and that there were sufficient procedural and evidential safeguards to protect confidentiality. Procedures also existed where judges were required to act on the basis of material which would not be disclosed either to the legal adviser or to his client. This was the case, for example, with claims by the executive to public interest immunity or application by the police to extend detention under the Police and Criminal Evidence (Northern Ireland) Order 1989 (see paragraph 19 above). 56. On this point the Government responded that none of the above procedures involved both the non-disclosure of material to the detainee or his legal adviser and an executive act of the court. The only exception appeared in Schedule 7 to the Prevention of Terrorism (Temporary Provisions) Act 1989 where inter alia the court may make an order in relation to the production of, and search for, special material relevant to terrorist investigations. However, paragraph 8 of Schedule 7 provides that, where the disclosure of information to the court would be too sensitive or would prejudice the investigation, the power to make the order is conferred on the Secretary of State and not the court (see paragraph 25 above). It was also emphasised that the Government had reluctantly concluded that, within the framework of the common-law system, it was not feasible to introduce a system which would be compatible with Article 5 para. 3 (art. 5-3) but would not weaken the effectiveness of the response to the terrorist threat. Decisions to prolong detention were taken on the basis of information the nature and source of which could not be revealed to a suspect or his legal adviser without risk to individuals assisting the police or the prospect of further valuable intelligence being lost. Moreover, involving the judiciary in the process of granting or approving extensions of detention created a real risk of undermining their independence as they would inevitably be seen as part of the investigation and prosecution process. In addition, the Government did not accept that the comparison with habeas corpus was a valid one since judicial involvement in the grant or approval of extension would require the disclosure of a considerable amount of additional sensitive information which it would not be necessary to produce in habeas corpus proceedings. In particular, a court would have to be provided with details of the nature and extent of police inquiries following the arrest, including details of witnesses interviewed and information obtained from other sources as well as information about the future course of the police investigation. Finally, Lords Shackleton and Jellicoe and Viscount Colville in their reports had concluded that arrest and extended detention were indispensable powers in combating terrorism. These reports also found that the training of terrorists in remaining silent under police questioning hampered and protracted the investigation of terrorist offences. In consequence, the police were required to undertake extensive checks and inquiries and to rely to a greater degree than usual on painstaking detective work and forensic examination (see paragraph 15 above). 57. The Commission was of the opinion that the Government had not overstepped their margin of appreciation in this regard. 58. The Court notes the opinions expressed in the various reports reviewing the operation of the Prevention of Terrorism legislation that the difficulties of investigating and prosecuting terrorist crime give rise to the need for an extended period of detention which would not be subject to judicial control (see paragraph 15 above). Moreover, these special difficulties were recognised in its above-mentioned Brogan and Others judgment (see Series A no. 145-B, p. 33, para. 61). It further observes that it remains the view of the respondent Government that it is essential to prevent the disclosure to the detainee and his legal adviser of information on the basis of which decisions on the extension of detention are made and that, in the adversarial system of the common law, the independence of the judiciary would be compromised if judges or other judicial officers were to be involved in the granting or approval of extensions. The Court also notes that the introduction of a "judge or other officer authorised by law to exercise judicial power" into the process of extension of periods of detention would not of itself necessarily bring about a situation of compliance with Article 5 para. 3 (art. 5-3). That provision - like Article 5 para. 4 (art. 5-4) - must be understood to require the necessity of following a procedure that has a judicial character although that procedure need not necessarily be identical in each of the cases where the intervention of a judge is required (see, among other authorities, the following judgments: as regards Article 5 para. 3 (art. 5-3) Schiesser v. Switzerland of 4 December 1979, Series A no. 34, p. 13, para. 30 and Huber v. Switzerland of 23 October 1990, Series A no. 188, p. 18, paras. 42-43; as regards Article 5 para. 4 (art. 5-4), De Wilde, Ooms and Versyp v. Belgium of 18 June 1971, Series A no. 12, p. 41, para. 78, Sanchez- Reisse v. Switzerland of 21 October 1986, Series A no. 107, p. 19, para. 51, and Lamy v. Belgium of 30 March 1989, Series A no. 151, pp. 15-16, para. 28). 59. It is not the Court ’ s role to substitute its view as to what measures were most appropriate or expedient at the relevant time in dealing with an emergency situation for that of the Government which have direct responsibility for establishing the balance between the taking of effective measures to combat terrorism on the one hand, and respecting individual rights on the other (see the above-mentioned Ireland v. the United Kingdom judgment, Series A no. 25, p. 82, para. 214, and the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, p. 23, para. 49). In the context of Northern Ireland, where the judiciary is small and vulnerable to terrorist attacks, public confidence in the independence of the judiciary is understandably a matter to which the Government attach great importance. 60. In the light of these considerations it cannot be said that the Government have exceeded their margin of appreciation in deciding, in the prevailing circumstances, against judicial control. (e) Safeguards against abuse 61. The applicants, Amnesty International and Liberty and Others maintained that the safeguards against abuse of the detention power were negligible and that during the period of detention the detainee was completely cut off from the outside world and not permitted access to newspapers, radios or his family. Amnesty International, in particular, stressed that international standards such as the 1988 United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (General Assembly Resolution 43/173 of 9 December 1988) ruled out incommunicado detention by requiring access to lawyers and members of the family. Amnesty submitted that being brought promptly before a judicial authority was especially important since in Northern Ireland habeas corpus has been shown to be ineffective in practice. In their view Article 5 para. 4 (art. 5-4) should be considered non- derogable in times of public emergency. In addition, it was contended that a decision to extend detention cannot in practical terms be challenged by habeas corpus or judicial review since it is taken completely in secret and, in nearly all cases, is granted. This is evident from the fact that, despite the thousands of extended detention orders, a challenge to such a decision has never been attempted. 62. Although submissions have been made by the applicants and the organisations concerning the absence of effective safeguards, the Court is satisfied that such safeguards do in fact exist and provide an important measure of protection against arbitrary behaviour and incommunicado detention. 63. In the first place, the remedy of habeas corpus is available to test the lawfulness of the original arrest and detention. There is no dispute that this remedy was open to the applicants had they or their legal advisers chosen to avail themselves of it and that it provides an important measure of protection against arbitrary detention (see the above-mentioned Brogan and Others judgment, Series A no. 145-B, pp. 34-35, paras. 63-65). The Court recalls, in this context, that the applicants withdrew their complaint of a breach of Article 5 para. 4 (art. 5-4) of the Convention (see paragraph 33 above). 64. In the second place, detainees have an absolute and legally enforceable right to consult a solicitor after forty-eight hours from the time of arrest. Both of the applicants were, in fact, free to consult a solicitor after this period (see paragraphs 10 and 11 above). Moreover, within this period the exercise of this right can only be delayed where there exists reasonable grounds for doing so. It is clear from judgments of the High Court in Northern Ireland that the decision to delay access to a solicitor is susceptible to judicial review and that in such proceedings the burden of establishing reasonable grounds for doing so rests on the authorities. In these cases judicial review has been shown to be a speedy and effective manner of ensuring that access to a solicitor is not arbitrarily withheld (see paragraph 24 above). It is also not disputed that detainees are entitled to inform a relative or friend about their detention and to have access to a doctor. 65. In addition to the above basic safeguards the operation of the legislation in question has been kept under regular independent review and, until 1989, it was subject to regular renewal. (f) Conclusion 66. Having regard to the nature of the terrorist threat in Northern Ireland, the limited scope of the derogation and the reasons advanced in support of it, as well as the existence of basic safeguards against abuse, the Court takes the view that the Government have not exceeded their margin of appreciation in considering that the derogation was strictly required by the exigencies of the situation. 4. Other obligations under international law 67. The Court recalls that under Article 15 para. 1 (art. 15-1) measures taken by the State derogating from Convention obligations must not be "inconsistent with its other obligations under international law" (see paragraph 40 above). 68. In this respect, before the Court the applicants contended for the first time that it was an essential requirement for a valid derogation under Article 4 of the 1966 United Nations International Covenant on Civil and Political Rights ("the Covenant"), to which the United Kingdom is a Party, that a public emergency must have been "officially proclaimed". Since such proclamation had never taken place the derogation was inconsistent with the United Kingdom ’ s other obligations under international law. In their view this requirement involved a formal proclamation and not a mere statement in Parliament. 69. For the Government, it was open to question whether an official proclamation was necessary for the purposes of Article 4 of the Covenant, since the emergency existed prior to the ratification of the Covenant by the United Kingdom and has continued to the present day. In any event, the existence of the emergency and the fact of derogation were publicly and formally announced by the Secretary of State for the Home Department to the House of Commons on 22 December 1988. Moreover there had been no suggestion by the United Nations Human Rights Committee that the derogation did not satisfy the formal requirements of Article 4. 70. The Delegate of the Commission considered the Government ’ s argument to be tenable. 71. The relevant part of Article 4 of the Covenant states: "In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed ..." 72. The Court observes that it is not its role to seek to define authoritatively the meaning of the terms "officially proclaimed" in Article 4 of the Covenant. Nevertheless it must examine whether there is any plausible basis for the applicant ’ s argument in this respect. 73. In his statement of 22 December 1988 to the House of Commons the Secretary of State for the Home Department explained in detail the reasons underlying the Government ’ s decision to derogate and announced that steps were being taken to give notice of derogation under both Article 15 (art. 15) of the European Convention and Article 4 of the Covenant. He added that there was "a public emergency within the meaning of these provisions in respect of terrorism connected with the affairs of Northern Ireland in the United Kingdom ..." (see paragraph 30 above). In the Court ’ s view the above statement, which was formal in character and made public the Government ’ s intentions as regards derogation, was well in keeping with the notion of an official proclamation. It therefore considers that there is no basis for the applicants ’ arguments in this regard. 5. Summary 74. In the light of the above examination, the Court concludes that the derogation lodged by the United Kingdom satisfies the requirements of Article 15 (art. 15) and that therefore the applicants cannot validly complain of a violation of Article 5 para. 3 (art. 5-3). It follows that there was no obligation under Article 5 para. 5 (art. 5-5) to provide the applicants with an enforceable right to compensation. II. ALLEGED VIOLATION OF ARTICLE 13 (art. 13) 75. In the proceedings before the Commission the applicants complained that they had no effective domestic remedy at their disposal in respect of their Article 5 (art. 5) claims. They requested the Court to uphold this claim but made no submissions in support of it. Article 13 (art. 13) provides as follows: "Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity." 76. The Court recalls that it was open to the applicants to challenge the lawfulness of their detention by way of proceedings for habeas corpus and that the Court in its Brogan and Others judgment of 29 November 1988 found that this remedy satisfied Article 5 para. 4 (art. 5-4) of the Convention (Series A no. 145-B, pp. 34-35, paras. 63-65). Since the requirements of Article 13 (art. 13) are less strict than those of Article 5 para. 4 (art. 5-4), which must be regarded as the lex specialis in respect of complaints under Article 5 (art. 5), there has been no breach of this provision (see the de Jong, Baljet and van den Brink v. the Netherlands judgment of 22 May 1984, Series A no. 77, p. 27, para. 60). | The Court observed that the Home Secretary’s statement of 22 December 1988 to the House of Commons, which was formal in character and made public the Government’s intentions as regards derogation, was well in keeping with the notion of an official proclamation. In that statement the Secretary of State had explained in detail the reasons underlying the Government’s decision to derogate and announced that steps were being taken to give notice of derogation under both Article 15 of the European Convention and Article 4 of the International Covenant on Civil and Political Rights. The Court thus found the applicants’ view ill-founded on this point and that there had been no violation of Article 5 § 3 (right to liberty and security) of the Convention. |
246 | The definition of idem | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Provisions relating to public events 20. Section 6(3) of the Public Events Act provides that during the public event its participants must comply with lawful orders of the organisers of the public event, representatives of the competent regional or municipal authorities, and law ‑ enforcement officials; maintain public order and follow the schedule of the public event. 21. Section 6(4) of the Act provides that during the public event the participants are not allowed to hide their faces by way of using masks or other means for impeding their identification; to possess firearms or other objects that may be used as weapons; to be intoxicated. B. Provisions relating to double jeopardy 22. Pursuant to Article 4.1 § 5 of the CAO, no one must be found administratively liable twice for the “ same administrative offence ”. Under Article 24.5 § 1 proceedings under the CAO should not be initiated or, if initiated, should be discontinued where there is no corpus delicti ( subparagraph 2) or where there is a decision to impose a sentence or to discontinue the proceedings on account of the very same fact of unlawful actions by the same person, in so far as the offence is proscribed by the very same Article ( s ) of the CAO ( subparagraph 7). 23. Where there are several records of administrative offences in respect of the same person, each record is submitted to a court to be examined separately. A court issues a separate judgment in respect of each related offence (Article 4.4 § 1 of the CAO and Ruling No. 5 of 24 March 2005 by the Plenary Supreme Court of Russia (paragraph 4(8) ). Where one (in )action on the part of the defendant concerns several offences under different Articles of the CAO and which fall within the jurisdiction of the same court, an administrative sentence is imposed with reference to the strictest statutory penalty. Where there are grounds for imposing a sentence in accordance with the rule set out in Article 4.4 § 2, the cases should be joined and examined in one set of proceedings resulting in a single judgment (paragraph 4(9) of the Ruling). 24. Article 19.3 § 1 of the CAO provides that the following conduct is punishable with a fine of from RUB 500 to 1,000 or administrative detention for up to fifteen days : ( i ) non-compliance with a lawful order or request made by a police officer, a military officer, a detention facility officer or a National Guard officer, in connection with the exercise of his or her duties relating to securing public order and public safety; (ii) resistance to those officers in the exercise of their official duties. 25. Article 20.2 § 5 of the CAO provides that the following conduct is punishable with a fine of from RUB 10,000 to RUB 20,000 or up to forty hours of community work: violation by a participant in a public event of the established procedure for running ( порядок проведения ) a public event. As specified in paragraph 33 of Ruling No. 28 of 26 June 2018 by the Plenary Supreme Court of Russia, the above -mentioned violation requires the court to establish that the demonstrator did not comply with ( or violated) one of the obligations ( or prohibitions) incumbent on demonstrators under section 6 ( 3 ) and ( 4 ) of the Public Events Act (see paragraphs 20 and 21 above). For instance, one such obligation requires compliance with all legal orders made by the police, military officers or National Guard officers. The Plenary Supreme Court indicated that a demonstrator ’ s non ‑ compliance with such orders or resistance to those officers in the exercise of their official duties in the course of a public event falls within the ambit of an offence under Article 20.2 § 5 of the CAO. “ In this specific context ” this provision is lex specialis vis-à-vis Article 19.3 § 1 of the CAO. 26. Applying the above interpretation in a review decision issued under Article 30.12 of the CAO on 29 June 2018 in case no. 78-AD18-5, a judge of the Supreme Court of Russia stated: “[The defendant] was prosecuted on the grounds that as a participant in a non ‑ notified public event, she had not complied with lawful orders of a police officer requiring her to cease her participation in that public event ... In the present case [Article 20.2 § 5 of the CAO] is lex specialis vis-à-vis Article 19.3 § 1 of the CAO ... Thus, the [defendant ’ s] conduct does not constitute corpus delicti under that provision ... At the same time, it is not possible in the present case to reclassify the defendant ’ s actions for the following reasons ... Reclassification from one Article of the CAO to another is possible when the type of object protected by those provisions ( единый родовой объект посягательства ) is the same and where a new sentence would not worsen the position of the defendant ... Articles 19.3 and 20.2 are contained in different Chapters of the CAO. .. and protect different types of objects ... Article 20.2 § 5 provides for a stricter sentence than Article 19.3 § 1 ... Pursuant to Article 4.1 § 5 of the CAO, no one should be found liable more than once for the same administrative offence ... ” C. Administrative arrest 27. The Constitutional Court of Russia has ruled that administrative arrest must be effected in compliance with the goals listed in subparagraph (c) of Article 5 § 1, that is it must be effected for the purpose of bringing an individual before the competent legal authority on reasonable suspicion of having committed an offence or if it is reasonably considered necessary to prevent him or her from committing an offence or fleeing after having done so (Ruling No. 9-P of 16 June 2009). For an arrest to be lawful, an assessment must be made of the essential features affecting “lawfulness”, which includes assessment of whether the measure was justified ( обоснованной ) in view of the goals pursued and whether it was necessary and reasonable ( разумной ) in the specific circumstances of the situation in which it was carried out. Administrative arrest is lawful if it can be justified on account of the nature of the offence and is necessary for ensuring the execution of a judgment in an administrative ‑ offence case (Decision No. 1049-O of 2 July 2013 by the Constitutional Court). The assessment of the reasons and grounds listed in the record of administrative arrest ( in so far as it was relevant in the context of a claim for compensation relating to such arrest) includes an assessment of whether arrest was the only possible measure in respect of the defendant (ibid). 28. For other relevant provisions of domestic law and judicial practice, see Tsvetkova and Others v. Russia, nos. 54381/08 and 5 others, §§ 66-75, 10 April 2018. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 29. The applicant complained that the administrative escorting and administrative arrest procedures against her had breached Article 5 § 1 of the Convention, the relevant parts of which read as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... ” A. The parties ’ submissions 1. The Government 30. The Government argued that the applicant had not exhausted domestic remedies by way of instituting “ separate proceedings ”, since the matter of administrative arrest was not inseparably linked to the main court decision in proceedings on the administrative charge. As to the legality of her deprivation of liberty, the Government stated that section 13 of the Police Act of 2011 contained the statutory basis on which the police drew up reports relating to administrative offences under Articles 19.3 and 20.2 of the CAO. Article 27.1 of the CAO was the legal provision empowering the police to take a person to a police station in circumstances where it was necessary in order to put an end to an offence. Article 27.2 of the CAO allowed the police to escort a person to a police station where it was not possible to compile an offence record at the place where the offence had been discovered. The police had had no opportunity to compile a report on the spot because “the place had been full of other participants of the rally”. Moreover, in view of the applicant ’ s active conduct during the rally, the compiling of an offence record on the spot would not have resulted in suppressing the offence. Under Article 27.5 § 3 of the CAO a defendant could be kept for up to forty-eight hours in relation to an offence punishable by detention, such as the offence under Article 19.3 § 1 of the CAO. 2. The applicant 31. The applicant submitted that the public event had been peaceful and that it participants had behaved in a peaceful manner. She argued that since the police had chosen to place arrestees in buses parked at the rally venue, it had been feasible for them to proceed with the compiling of an offence record on the spot, without waiting until the buses had departed, being full or at the end of the rally. As to the aim of putting an end to an offence, the escort record only referred to the statutory aim of compiling an offence record (see paragraph 8 above). The examination of the case in a correct and expedient manner was indicated as the statutory aim of the applicant ’ s administrative arrest (see paragraph 10 above). However, neither any domestic authority nor the Government before the Court put forward any justification as to why the case had been considered “exceptional” within the meaning of Article 27.3 of the CAO, in order to justify the arrest procedure, in particular after the offence record had been compiled at around 8 p.m. on 12 June 2017. Notably, by that time the rally had been fully dispersed. Overall, the Government ’ s new arguments, first put forward before the Court, could not make up for the lack of reasoning that the domestic authorities should have provided. B. The Court ’ s assessment 1. Admissibility 32. As to the exhaustion of remedies, the Government have not specified what specific course of action the applicant ought to have taken in 2017 following her conviction and the CAO courts ’ findings relating to the legality of her administrative arrest (see paragraph 19 above) and whether it offered any prospect of success. Thus the Government ’ s argument is dismissed as unsubstantiated. 33. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits 34. The Court notes that recourse to the escort procedure is lawful under Russian law (namely, Article 27.2 § 1 of the CAO) where it was not possible to compile an offence record at the place where the offence had been discovered. None of the documents drawn up at domestic level (for instance, the escort record, the reports by the police officers, the offence record or any judicial decision ) clarify the factual and legal elements which could explain why an offence record could not be drawn up on the spot. The Government ’ s submissions before the Court shed no light on those elements, beyond a reference to the rally venue being “full of other participants” or to the applicant ’ s active conduct during the rally. There is nothing to doubt that the applicant ’ s conduct was peaceful or to contest her submission that the rally was peaceful (compare with Kasparov and Others v. Russia (no. 2), no. 51988/07, § 39, 13 December 2016, and Frumkin v. Russia, no. 74568/12, § 148, 5 January 2016 ). Furthermore, despite the Government ’ s argument before the Court, it is noted that the escort record did not refer to any (arguably, statutory) aim which might have justified under Russian law recourse to the escort procedure for putting an end to any ongoing offence, instead of the primary statutory aim of this procedure, that is for compiling an offence record (see paragraphs 8 and 30 above). 35. As to recourse to the arrest procedure after the applicant ’ s arrival at the police station, the Court notes that the aim of compiling an offence record no longer justified, in terms of Russian law, the continued deprivation of liberty once that aim had been achieved. As to the aim of the “timely and correct examination of the case” referred to in the arrest record (see paragraph 10 above), it remains the case that the CAO required the measure to be justified with reference to “exceptional” circumstances. No such circumstances, beyond mere convenience, were adduced at the domestic level or, at the latest, before the Court. Nothing in the file suggests that there was a risk of the applicant reoffending, tampering with evidence, influencing witnesses or fleeing justice, which would plead in favour of her continued detention. Even if those considerations could be considered to constitute an “exceptional case” referred to in Article 27.3 § 1 of the CAO as part of the rationale for avoiding excessive and abusive recourse to the administrative ‑ arrest procedure, there is nothing in the file that could lead the Court to conclude that such considerations had been weighed and justified the applicant ’ s deprivation of liberty after 10 p.m. on 12 June 2017 until her release at around 8 p.m. on 13 June 2017 (see Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, §§ 71-72, 15 November 2018, and Butkevich v. Russia, no. 5865/07, § 123, 13 February 2018; see also S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, § 77, 22 October 2018 ). 36. There has accordingly been a violation of Article 5 § 1 of the Convention, at least, after 2.50 p.m. on 12 June 2017 until the applicant ’ s release around 8 p.m. on 13 June 2017. II. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION 37. The applicant complained of violations of Article 6 of the Convention in both cases against her, on account of the lack of a prosecuting party at the trial hearings and the restrictions on the defence ’ s ability to contest the adverse written evidence, in particular by way of examining three police officers. 38. The relevant parts of Article 6 of the Convention read as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ... ” 39. The Government submitted that the defence had been afforded an opportunity to contest the adverse evidence, as well as to study the case file, lodge applications and put forward a defence. 40. The applicant maintained her complaints. A. Admissibility 41. The Court notes that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 42. As regards the requirement of objective impartiality, the Court has previously examined this matter and has found a violation of Article 6 § 1 of the Convention on account of the lack of a prosecuting party in the context of oral hearings resulting in the determination of administrative charges (see Karelin v. Russia, no. 926/08, §§ 69-84, 20 September 2016, and Butkevich, §§ 82-84, cited above; see also Mikhaylova v. Ukraine, no. 10644/08, § § 62-67, 6 March 2018). The Court notes that the essential factual and legal elements of the present case and the case of Karelin ( cited above, §§ 59-68) are similar. The factual circumstances or the parties ’ submissions in the present case disclose no reason for the Court to depart from its earlier judgments. There has therefore been a violation of Article 6 § 1 of the Convention on account of the requirement of objective impartiality as regards the trial hearings in two cases against the applicant. 43. In view of the above finding in respect of both sets of proceedings and the nature and scope of the findings under Article 4 § 1 of Protocol No. 7 to the Convention below in respect of one set of those proceedings, the Court finds it possible, in the particular context of the present case, to dispense with a separate examination of the merits of the remaining complaints relating to the overall fairness of the proceedings. III. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO THE CONVENTION 44. The applicant argued that her conviction for two offences disclosed a violation of Article 4 § 1 of Protocol No. 7 to the Convention, the relevant part of which reads as follows: “1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State ... ” A. The parties ’ submissions 45. The Government argued that the actus reus differed as regards Article 19.3 and Article 20.2 of the CAO: the first one punished disobedience to a lawful order by a public official, the second punished a breach of the established procedure for public events. Moreover, the offences were placed in different chapters of the CAO, the first one under the heading of offences against the rules relating to government, and the second one in relation to preventing disorder and ensuring public safety. In any event, on the facts of the present case the applicant had been charged with different offences: in the first case she had been accused of disobedience to a police order to cease her participation in an unlawful rally, and in the second case she had been charged with participation in that unlawful rally. 46. The applicant argued that she had been prosecuted and sentenced twice in relation to the same facts. The wording of the offence record for each case and the adverse reports issued by the police officers and then used in evidence against her had been worded in identical terms. Her position in the present case had been recently confirmed by the Plenary Supreme Court in June 2018 and in at least one follow-up case (see paragraphs 25 and 26 above). B. The Court ’ s assessment 1. Admissibility (a) Preliminary considerations 47. The applicant was convicted of two offences in two separate sets of proceedings on the same date. On a later date, her appeals were examined consecutively in two separate sets of appeal hearings, as required by the CAO (see paragraphs 17 and 23 above). 48. The Court reiterates that the guarantee enshrined in Article 4 § 1 of Protocol No. 7 to the Convention is activated vis-à-vis a new or another prosecution, where a prior acquittal or conviction has already acquired the force of res judicata. Thus, prior to delving into admissibility issues, the Court finds it pertinent to determine the point of such finality, with reference to the applicable Russian law. Judgments “ entered into force” within the meaning of the Russian CAO after expiry of the period for an appeal or following delivery of an appeal decision on the merits of the charge. The applicant appealed and the appellate courts issued decisions on the appeals. Those decisions had the force of res judicata under the CAO, so the issue under Article 4 § 1 of Protocol No. 7 should be determined with reference to them as a starting point in the present case. 49. The Court observes that the two sets of proceedings were initiated and then pursued, up to the appeal stage, in parallel. The object of Article 4 of Protocol No. 7 is to prevent the injustice of a person ’ s being prosecuted or punished twice for the same criminalised conduct. It does not, however, outlaw legal systems which take an “integrated” approach to the social wrongdoing in question, and in particular an approach involving parallel stages of legal response to the wrongdoing by different authorities and for different purposes (see A and B v. Norway [GC], nos. 24130/11 and 29758/11, § 23, 15 November 2016). However, in the present case, the second set of proceedings continued after the delivery of the appeal decision in the first set of proceedings on 29 June 2017, albeit for a relatively short period (see paragraph 17 above). ( b ) Six- month rule 50. In so far as it falls within its jurisdiction, the Court will now examine whether the applicant has complied with the six-month rule under Article 35 § 1 of the Convention. 51. Article 4 § 1 of Protocol No. 7 to the Convention applies when a final judgment in one of two cases was already obtained (for instance, on account of the delivery of an appeal decision in that case upholding the conviction as a whole or in part, or discontinuing the proceedings), while the proceedings in the second case continue. Thus, a related complaint should be lodged before this Court, at the latest, within six months of the date on which a final judgment has been obtained in the second case or when the applicant first became aware of it. 52. In the present case, a final judgment in the first case was obtained on 29 June 2017, immediately prior to the appeal hearing in the second case that resulted in an appeal decision on the same date. The applicant then lodged a complaint before the Court on 21 September 2017. Thus, she has complied with the six-month rule. ( c ) Compatibility ratione materiae 53. In so far as Article 4 § 1 of Protocol No. 7 to the Convention is concerned, the Court has previously considered, in view of the so-called Engel criteria, that proceedings relating to charges under the CAO, namely those under its Articles 20.2 or 19.3, were “criminal charges” within the meaning of Article 6 § 1 of the Convention (see Navalnyy, cited above, §§ 77-80, with the references cited therein). “Criminal proceedings” for the purposes of Article 4 § 1 of Protocol No. 7 to the Convention are interpreted in the same way (see A and B v. Norway [GC], nos. 24130/11 and 29758/11, §§ 107 and 136, 15 November 2016). The Court finds that both sets of proceedings against the applicant were “criminal proceedings” within the meaning of that provision. ( d ) Other admissibility criteria and conclusion 54. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits (a) General principles and the applicable approach 55. Article 4 of Protocol No. 7 is understood as prohibiting the prosecution or trial of a second “offence” in so far as it arose from identical facts or facts which were substantially the same (see Marguš v. Croatia [GC], no. 4455/10, § 114, ECHR 2014 ( extracts )). 56. States should be able legitimately to choose complementary legal responses to socially offensive conduct (such as non-compliance with road ‑ traffic regulations or non-payment/evasion of taxes) through different procedures forming a coherent whole so as to address different aspects of the social problem involved, provided that the accumulated legal responses do not represent an excessive burden for the individual concerned (see A and B v. Norway, cited above, § 121). In cases raising an issue under Article 4 of Protocol No. 7, it should be determined whether the specific national measure complained of entails, in substance or in effect, double jeopardy to the detriment of the individual or whether, in contrast, it is the product of an integrated system enabling different aspects of the wrongdoing to be addressed in a foreseeable and proportionate manner forming a coherent whole, so that the individual concerned is not thereby subjected to injustice ( ibid., § 12 2 ). The object of Article 4 of Protocol No. 7 is to prevent the injustice of a person ’ s being prosecuted or punished twice for the same criminalised conduct. It does not, however, outlaw legal systems which take an “integrated” approach to the social wrongdoing in question, in particular an approach involving parallel stages of legal response to the wrongdoing by different authorities and for different purposes ( ibid., § 123). 57. Article 4 of Protocol No. 7 does not exclude the conduct of dual proceedings, provided that certain conditions are fulfilled. In particular, for the Court to be satisfied that there is no duplication of trial or punishment ( bis ) as proscribed by Article 4 of Protocol No. 7, the respondent State must demonstrate convincingly that the dual proceedings in question were “sufficiently closely connected in substance and in time”. In other words, it must be shown that they were combined in an integrated manner so as to form a coherent whole. This implies not only that the purposes pursued and the means used to achieve them should in essence be complementary and linked in time, but also that the possible consequences of organising the legal treatment of the conduct concerned in such a manner should be proportionate and foreseeable for the persons affected ( ibid., § 130). As regards the conditions to be satisfied in order for dual criminal and administrative proceedings to be regarded as sufficiently connected in substance and in time and thus compatible with the bis criterion in Article 4 of Protocol No. 7, the material factors for determining whether there was a sufficiently close connection in substance include: - whether the different proceedings pursue complementary purposes and thus addressed, not only in abstracto but also in concreto, different aspects of the social misconduct involved; - whether the duality of proceedings concerned was a foreseeable consequence, both in law and in practice, of the same impugned conduct ( idem ); - whether the relevant sets of proceedings were conducted in such a manner as to avoid as far as possible any duplication in the collection as well as the assessment of the evidence, notably through adequate interaction between the various competent authorities to bring about that the establishment of facts in one set is also used in the other set; - and, above all, whether the sanction imposed in the proceedings which became final first was taken into account in those which became final last, so as to prevent the individual concerned from being in the end made to bear an excessive burden; this latter risk is least likely to be present where there is in place an offsetting mechanism designed to ensure that the overall amount of any penalties imposed is proportionate (ibid., §§ 130-31). (b) Application of the principles in the present case 58. Firstly, it has not been argued, and the Court does not find it established, that two sets of proceedings under Articles 20.2 § 5 and 19.3 § 1 of the CAO should be regarded as forming an integrated legal response to the applicant ’ s conduct and, even less, that the conditions mentioned in paragraph 57 have been met. Indeed, the above conclusion is confirmed by the Plenary Supreme Court ’ s approach in which it held that one set of proceedings was a lex specialis vis-à-vis the other one (see paragraph 25 above). Thus, the Court finds it necessary to go further into the issue of the finality of the first set of proceedings and the duplication of prosecution (see by contrast, A and B v. Norway, cited above, § 142). 59. The Court notes in this connection that under the Russian CAO, no one must be found administratively liable twice for the same administrative offence. Proceedings under the CAO should not be initiated or, if initiated, should be discontinued where there is no corpus delicti or where a decision is made to impose a sentence or to discontinue the proceedings on account of the same unlawful acts by the same person, in so far as the offence is proscribed by the same Article(s) of the CAO (see paragraph 22 above). The present case concerns prosecution under two different Articles of the CAO. 60. The Court has taken note of the position adopted in June 2018 by the Plenary Supreme Court of Russia in relation to dual charges brought under Articles 20.2 § 5 and 19.3 § 1 of the CAO against a demonstrator on account of participation in a public event and non-compliance with a police order to cease such participation (and disperse). Relying on the lex specialis rule, the Supreme Court stated that in this specific context, only prosecution under Article 20.2 § 5 would be lawful under Russian law (see paragraph 25 above). The Plenary Supreme Court did not rely on the ne bis in idem principle in that connection. However, in at least one subsequent decision, a reviewing court relied on the above ruling and also mentioned, albeit without any further detail, the CAO provision relating to the ban on the duplication of prosecution under the CAO (see paragraph 26 above for an example of a case in which conviction was quashed by way of the review procedure under Article 30.12 of the CAO ). 61. The Court has taken note of those recent developments in the domestic case-law. It notes, however, that the above legal position was first articulated in June 2018, that is after the appeal decisions in the applicant ’ s cases in June 2017 and after her lodging an application before this Court in September 2017. 62. As to the merits of the issue, the Court reiterates that Article 4 § 1 of Protocol No. 7 prohibits the prosecution or trial of a second “offence” in so far as it arises from identical facts or facts which are substantially the same (see A and B v. Norway, cited above, § 108, and Sergey Zolotukhin v. Russia [GC], no. 14939/03, § 82, ECHR 2009 ). The Court has also held that an approach which emphasises the legal characterisation of the two offences is too restrictive on the rights of the individual and risks undermining the guarantee enshrined in Article 4 § 1 of Protocol No. 7 (see Sergey Zolotukhin, cited above, § 81, and Boman v. Finland, no. 41604/11, § 33, 17 February 2015). Accordingly, it cannot accept the Government ’ s argument (see paragraph 45 above) that the duplication of proceedings in the present case was justified by the distinct types or areas of protection pertaining to each offence (see, mutatis mutandis, Šimkus v. Lithuania, no. 41788/11, § 48, 13 June 2017, and Rivard v. Switzerland, no. 21563/12, § 26, 4 October 2016). What matters is that there is an overlap of the facts constituting the basis for the defendant ’ s prosecution in the second set of proceedings with facts that are substantially the same in the first set of proceedings. The Court notes that in each set of proceedings the applicant was accused in relation to participating in an unlawful rally, namely, of ( i ) refusing to comply with a police officer ’ s order to cease her participation in it (Article 19.3 § 1 of the CAO ) and (ii) failing to comply with her statutory obligation under the Public Events Act to comply with police orders, in the present case, the order to cease her participation in the event (Article 20.2 § 5 of the CAO read with section 6(3) of the Public Events Act). As acknowledged in substance by the Plenary Supreme Court, such accusations are intertwined and entailing a conclusion, in terms of Russian law, that only a charge under Article 20.2 § 5 of the CAO was permissible (see paragraph 25 above). 63. Having regard to its own case-law under Article 4 § 1 of Protocol No. 7 to the Convention, the Court concludes that the applicant became “liable to be tried or punished again” once a final judgment in one of the two cases had been obtained, in this instance, once the appeal decision in that case had been delivered in relation to the facts that were substantially the same to those at the heart of the first proceedings. 64. The Court concludes that the applicant was tried and punished twice for the same “ offence ”. 65. There has therefore been a violation of Article 4 § 1 of Protocol No. 7 to the Convention. IV. APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION A. Article 46 of the Convention 66. Article 46 of the Convention reads as follows: “1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.” 67. Under Article 46 of the Convention the Contracting Parties have undertaken to abide by the final judgments of the Court in cases to which they are parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a violation of the Convention or the Protocols thereto imposes on the respondent State the legal obligation not just to pay those concerned the sums awarded by way of just satisfaction pursuant to Article 41 of the Convention but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if necessary, individual measures which it considers appropriate to incorporate into domestic law in order to put an end to the violation found by the Court and to redress as far as possible the effects. It is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used under its domestic law to comply with that obligation. However, with a view to helping the respondent State in that task, the Court may seek to indicate the type of individual and/or general measures that might be taken in order to put an end to the situation it has found to exist (see, as a recent authority, Navalnyy, cited above, § 182 ). 68. As to Article 4 § 1 of Protocol No. 7 to the Convention, the Court notes that there are over one hundred applications pending before it which raise similar issues, mostly, in an identical legal context or in relation to other paragraphs of Articles 19.3 and 20.2 of the CAO or other Articles of the CAO. 69. In the present case the Court has found violations of, inter alia, Article 4 § 1 of Protocol No. 7 to the Convention on account of the duplication of prosecution in two sets of proceedings, under Article 20.2 § 5 and Article 19.3 § 1 of the CAO. The Court notes in this connection that unlike the other procedural codes of the Russian Federation, the CAO contains no specific provision setting out grounds and a procedure for re ‑ examining the relevant court decisions (reopening the relevant proceedings) on account of this Court ’ s finding of a violation of the Convention or the Protocols thereto (see also Bukreyev v. Russia [Committee], no. 60646/13, §§ 38-39, 1 October 2019 ). There is nothing before the Court to confirm, to the requisite degree of certainty, that the procedure under Article 30.12 of the CAO, normally applicable for review of final court decisions issued under that Code, may serve that purpose for such “reopening” or “retrial” within the meaning of Article 46 of the Convention, if the applicant requests it. The Court is therefore not satisfied in the present case that there are clear grounds and procedures, as well as a consistent and established practice of applying them, for any such “reopening” or “retrial” under the CAO. 70. Nevertheless, it appears that the Plenary Supreme Court ’ s approach in June 2018 about the prosecution to be limited to Article 20.2 § 5 of the CAO is applicable to cases finally decided prior to June 2018 (see paragraph 26 above). It is noted that in the present case, for instance, no review under Article 30.12 of the CAO has been carried out at a regional level and then before the Supreme Court of Russia (if need be), with reference to the Plenary Supreme Court ’ s approach, so that one of the convictions would be set aside and any persisting consequences of the related prosecution and punishment would be eliminated too (for instance, by way of reimbursement of the fine already paid and/or by way of another adequate redress, in particular as regard other types of penalties already served) (see, mutatis mutandis, Sergey Zolotukhin, cited above, § 83; see also paragraph 26 above). 71. This being said, as regards cases finally decided domestically prior to June 2018 like the present case, it remains open to the respondent Government to make appropriate use of the available legal avenues which might yield the result mentioned above, namely where it was a conviction under Article 19.3 § 1 of the CAO that gave rise to the ne bis in idem issue. 72. More generally, it remains for the respondent Government, together with the Council of Europe Committee of Ministers, to consider what measures may be appropriate to facilitate the rapid and effective suppression of a malfunction in the national system of human-rights protection, for instance, by way of further clarifying the scope of the ne bis in idem principle in CAO cases in a manner compatible with the Court ’ s approach in paragraphs 59, 62 and 63 above and ensuring its practical application within the applicable domestic remedies. B. Article 41 of the Convention 73. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 1. Damage 74. The applicant claimed 10,000 euros (EUR) and 1 0, 5 00 roubles (RUB) in respect of non-pecuniary damage and pecuniary damage (on account of the two fines she had paid ) respectively. 75. The Government made no specific comment. 76. The Court has discerned no causal link between the fines and the only violation under Article 6 of the Convention as established by the Court in the present case (compare Mikhaylova v. Russia, no. 46998/08, § 106, 1 9 November 2015, and Morice v. France [GC], no. 29369/10, § 182, ECHR 2015). As to Article 4 § 1 of Protocol No. 7, since it remains unclear in which order the two sets of appeal proceedings were conducted on 29 June 2017, no causal link has been substantiated in the specific context of the present case between the violation of that Article and any of the fines. 77. The Court reiterates that its primary role in respect of applications lodged under Article 34 of the Convention is to render justice in individual cases by way of recognising violations of an injured party ’ s rights and freedoms under the Convention and Protocols thereto and, if necessary, by way of affording just satisfaction (see Nagmetov v. Russia [GC], no. 35589/08, § 64, 30 March 2017). A judgment in which the Court finds a breach of the Convention imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (ibid. , § 65). 78. The Court considers that the finding of a violation is not sufficient to constitute in itself sufficient just satisfaction for any non-pecuniary damage which the applicant may have suffered in relation to Articles 5 § 1 and 6 § 1 of the Convention and Article 4 of Protocol No. 7. Having regard to the nature and scope of the violations found and making its assessment on an equitable basis, the Court awards the applicant EUR 3, 2 5 0 in respect of non-pecuniary damage, plus any tax that may be chargeable. 2. Costs and expenses 79. The applicant claimed EUR 3,750 for the costs and expenses incurred before the domestic authorities and the Court. 80. The Government have made no specific comment. 81. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Regard being had to the documents in its possession and the above criteria (in particular, the straightforward nature of certain issues raised under the Convention ) and in so far as the expenses are related to the violations found by the Court, the Court considers it reasonable to award EUR 2, 5 0 0 covering costs under all heads, to be paid directly to Mr A. D. Peredruk as requested. 3. Default interest 82. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 4 § 1 of Protocol No. 7 in the applicant’s case. It rejected in particular the Russian Government’s argument that the duplication of the proceedings against the applicant had been justified by the distinct areas covered by two different charges. It further found there was an overlap of the facts which were at the basis of each prosecution. Taking account of its own case-law and a ruling of the Plenary of the Supreme Court of Russia in similar circumstances, the Court found that the applicant had been tried and convicted twice for the same offence. Furthermore, under Article 46 (binding force and execution of judgments) of the Convention, noting that it had more than 100 applications dealing with issues that were similar to those in the applicant’s case, the Court found that it remained for Russia, together with the Council of Europe Committee of Ministers, to consider what measures could be appropriate to facilitate the rapid and effective suppression of the malfunction in the national system of human-rights protection, for instance, by way of further clarifying the scope of the ne bis in idem principle in CAO (Code of Administrative Offences) cases in a manner compatible with the Court’s approach in this case and ensuring its practical application within the applicable domestic remedies. |
697 | Online hate speech | II. RELEVANT DOMESTIC LAW 26. Act no. IV of 1959 on the Civil Code, as in force at the material time, provides: Article 75 “ (1) Personality rights shall be respected by everyone. Personality rights are protected under this Act. (2) The rules governing the protection of personality rights are also applicable to legal personalities, except the cases where such protection can, due to its character, they only apply to private individuals. (3) Personality rights will not be violated by conducts to which the holder of rights has given consent, unless such consent violates or endangers an interest of society. In any other case a contract or unilateral declaration restricting personality rights shall be null and void. ” Article 78 “ (1) The protection of personality rights shall also include the protection of reputation. (2) In particular, the statement or dissemination of an injurious and untrue fact concerning another person, or the presentation with untrue implications of a true fact relating to another person, shall constitute defamation. ” 27. Act no. CVIII of 2001 on Electronic Commercial Services etc. provides as follows: Section 1 “ (4) The scope of this Act shall not extend to communications, including contractual statements, made by persons acting outside the sphere of economic or professional activities or public duties by making use of an information society-related service. ” Section 2 “ For the purposes of this Act : a ) Electronic commercial service is an information - society service for selling, buying, exchanging or obtaining in any other manner of a tangible, negotiable movable property – including money, financial securities and natural forces which can be treated in the same way as a property – a service, a real estate or a right having pecuniary value (henceforth together: goods); ... l) Provider of intermediary services: any natural or legal person providing an information society service, who ... lc ) stores information provided by a recipient of the service (hosting) ( tárhelyszolgáltatás ) ” III. RELEVANT INTERNATIONAL AND COMPARATIVE LAW 28. The relevant material found in the instruments of the Council of Europe, the United Nations and the European Union as well as in the national law of various Member States is outlined in paragraphs 44 to 58 of the judgment Delfi AS v. Estonia [GC] (no. 64569/09, ECHR 2015). THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 29. The applicants complained that the rulings of the Hungarian courts establishing objective liability on the side of Internet websites for the contents of users ’ comments amounts to an infringement of freedom of expression as provided in Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 30. The Government contested that argument. A. Admissibility 31. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicants 32. At the outset, the applicants drew attention to the EU framework governing intermediary liability and the relevant international standards developed by the United Nations Special Rapporteur on Freedom of Expression as well as the Council of Europe expressed notably by the Committee of Ministers. 33. Moreover, in their view, it was immaterial which precise domestic legal provisions had served as the basis of the restriction complained of. The State interference resulted in the applicants ’ objective liability for the comments made on their websites. 34. They disputed the rulings of the Hungarian courts according to which the comments had violated others ’ right to good reputation. Those comments had appeared in a public debate on a matter of common interest. The debate concerned the unethical conduct of a service- provider, where there should be little restriction on expressions, even disturbing ones, especially when it comes to value judgments as in the present case. In any case, the comments could not be equated with edited readers ’ letters. 35. The applicants also contended that the lawfulness of the interference leaves a lot to be desired because the domestic legal practice was divergent in such cases. 36. As to the Government ’ s suggestion that liability for comments could be avoided either by pre-moderation or by disabling commenting altogether, the applicants argued that both solutions would work against the very essence of free expression on the Internet by having an undue chilling effect. 37. The applicants furthermore contended that imposing strict liability on online publications for all third-party contents would amount to a duty imposed on websites to prevent the posting, for any period of time, of any user-generated content that might be defamatory. Such a duty would place an undue burden on many protagonists of the Internet scene and produce significant censoring, or even complete elimination, of user comments to steer clear of legal trouble – whereas those comments tend to enrich and democratise online debates. 38. It was noteworthy that the law of the European Union and some national jurisdictions contained less restrictive rules for the protection of rights of others and to manage liability of hosting service providers. Indeed, the application of the “ notice and take down ” rule was the adequate way of enforcing the protection of reputation of others. 39. The stance of the Hungarian authorities had resulted in disproportionate restriction on the applicants ’ freedom of expression in that they had had to face a successful civil action against them, even though they had removed the disputed contents at once after they had learnt, from the court action, that the company concerned had perceived them as injurious. The legal procedure, along with the fees payable, must be seen as having a chilling effect. 40. To conclude, the applicants maintained that the simple application of the traditional rules of editorial responsibility, namely strict liability, was not the answer to the new challenges of the digital era. Imposing strict liability on online publications for all third-party content would have serious adverse repercussions for the freedom of expression and the democratic openness in the age of Internet. ( b ) The Government 41. The Government conceded that there had been an interference with the applicants ’ right to freedom of expression, albeit one prescribed by law and pursuing the legitimate aim of the protection of the rights of others. In their view, the authorities had acted within their margin of appreciation essentially because by displaying the comments the applicants had exceeded the limits of freedom of expression as guaranteed under the Convention. 42. The Government noted that the courts had not availed themselves of the notion of objective liability to be borne by Internet service providers for users ’ comments. Pursuant to its Section 1(4), Act no. CVIII of 2001 on Electronic Commercial Services (see paragraph 22 above) had not been applicable in the case, since its scope did not extend to communications made by persons acting outside the sphere of economic or professional activities or public duties by making use of an information society-related service. The applicants ’ objective liability had occurred since they had disseminated opinions privately expressed by other persons in a manner violating the law. Consequently, the general provisions of the Civil Code governing the protection of personality rights had been relied on by the courts. As they stated, an expression damaging reputation might also be committed by imparting and disseminating information obtained from other persons. The expressions published had contained unduly injurious, insulting and humiliating statements of facts which were contrary to the rules governing the expression of opinions. The publication of a fact might also amount to an opinion since the circumstances of the publication might reflect an opinion. Honour and reputation, however, did constitute an outer limit even to opinions or value judgments. Under Articles 75(1) and 78(1)- (2) of the Civil Code, the statement or dissemination of an injurious and untrue fact concerning another person, or the presentation with untrue implications of a true fact relating to another person constituted defamation. 43. The applicants ’ own right to impart and disseminate information and ideas was in no way violated. Indeed, they had not disputed that the comments had infringed the plaintiff ’ s personality rights. As regards the publication of the ideas of others, to avoid the legal consequences of allowing the comments the applicants could have pre-moderated them or not disallowed them altogether. Those who enabled the display of unmoderated comments on their websites should foresee that unlawful expressions might also be displayed – and sanctioned under the rules of civil law. 44. In assessing the necessity of the interference, the Government argued that the case involved a conflict between the right to freedom of expression and the protection of the honour and rights of others. The national courts had solved the conflict by weighing the relevant considerations in a manner complying with the principles laid down in Article 10 of the Convention. The comments were undoubtedly unlawful; and the sanctions applied were not disproportionate in that the courts limited themselves to establishing the breach of the law and obliging the applicants to pay only the court fees. 2. The Court ’ s assessment 45. The Court notes that it was not in dispute between the parties that the applicants ’ freedom of expression guaranteed under Article 10 of the Convention had been interfered with by the domestic courts ’ decisions. The Court sees no reason to hold otherwise. 46. Such an interference with the applicant company ’ s right to freedom of expression must be “prescribed by law”, have one or more legitimate aims in the light of paragraph 2 of Article 10, and be “necessary in a democratic society”. 47. In the present case the parties ’ opinion differed as to whether the interference with the applicants ’ freedom of expression was “prescribed by law”. The applicants argued that under the European legislation hosting service providers had restricted liability for third-party comments. The Government referred to section 1(4) of Act no. CVIII of 2001 to the effect that private expressions, such as the impugned comments, fell outside the scope of that Act. They relied on section 75(1) and 78(1)-(2) of the Civil Code and argued that the applicants were liable for imparting and disseminating private opinions expressed by third-parties. 48. The Court observes that the Court of Appeal concluded that the applicants ’ case did not concern electronic commercial activities, and, in any case, pursuant to its section 1(4), Act no. CVIII of 2001 was not applicable to the impugned comments (see paragraph 20 above). The Kúria, while upholding the second-instance judgment found, without further explanation, that the applicants were not intermediaries in terms of section 2( lc ) of that Act (see paragraph 22 above). The domestic courts, thus, chose to apply Article 78 of the Civil Code, although, apparently, for different reasons. 49. The Court reiterates in this context that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, among others, Rekvényi v. Hungary [GC], no. 25390/94, § 35, ECHR 1999 ‑ III). The Court also reiterates that it is not for it to express a view on the appropriateness of methods chosen by the legislature of a respondent State to regulate a given field. Its task is confined to determining whether the methods adopted and the effects they entail are in conformity with the Convention (see Gorzelik and Others v. Poland [GC], no. 44158/98, § 67, ECHR 2004 ‑ I). Thus, the Court confines itself to examining whether the Kúria ’ s application of the relevant provisions of the Civil Code to the applicants ’ situation was foreseeable for the purposes of Article 10 § 2 of the Convention. As the Court has previously held, the level of precision required of domestic legislation – which cannot provide for every eventuality – depends to a considerable degree on the content of the law in question, the field it is designed to cover and the number and status of those to whom it is addressed (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 142, ECHR 2012). The Court has found that persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation, can on this account be expected to take special care in assessing the risks that such activity entails (see Lindon, Otchakovsky -Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 41, ECHR 2007 ‑ IV). 50. The Court notes that the Kúria did not embark on an explanation whether and how Directive 2000/31/EC was taken into account when interpreting section 2( lc ) of Act no. CVIII of 2001 and arriving to the conclusion that the applicants were not intermediaries in terms of that provision, despite the applicants ’ suggestion that the correct application of the EU law should have exculpated them in the circumstances. 51. Nonetheless, the Court is satisfied on the facts of this case that the provisions of the Civil Code made it foreseeable for a media publisher running a large Internet news portal for an economic purpose and for a self-regulatory body of Internet content providers, that they could, in principle, be held liable under domestic law for unlawful comments of third-parties. Thus, the Court considers that the applicants was in a position to assess the risks related to their activities and that they must have been able to foresee, to a reasonable degree, the consequences which these could entail. It therefore concludes that the interference in issue was “prescribed by law” within the meaning of the second paragraph of Article 10 of the Convention (see mutatis mutandis, Delfi AS, cited above, §§ 125 to 129). 52. The Government submitted that the interference pursued the legitimate aim of protecting the rights of others. The Court accepts this. 53. It thus remains to be ascertained whether it was “necessary in a democratic society” in order to achieve the aim pursued. (a) General principles 54. The fundamental principles concerning the question whether an interference with freedom of expression is “necessary in a democratic society” are well established in the Court ’ s case-law and have been summarised as follows (see, among other authorities, Hertel v. Switzerland, 25 August 1998, § 46, Reports of Judgments and Decisions 1998 ‑ VI; Steel and Morris v. the United Kingdom, no. 68416/01, § 87, ECHR 2005 ‑ II; Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 48, ECHR 2012; Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 100, ECHR 2013; and most recently in Delfi AS, cited above, § 131 ): “( i ) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘ information ’ or ‘ ideas ’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘ democratic society ’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ... (ii) The adjective ‘ necessary ’, within the meaning of Article 10 § 2, implies the existence of a ‘ pressing social need ’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘ restriction ’ is reconcilable with freedom of expression as protected by Article 10. (iii) The Court ’ s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘ proportionate to the legitimate aim pursued ’ and whether the reasons adduced by the national authorities to justify it are ‘ relevant and sufficient ’ ... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ...” 55. Furthermore, the Court has emphasised the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, particularly as regards the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 58, ECHR 1999 ‑ III; Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298; and De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports 1997 ‑ I). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Couderc and Hachette Filipacchi Associés v. France [GC] (no. 40454/07, § 89, 10 November 2015; Bladet Tromsø and Stensaas, cited above, § 59; and Prager and Oberschlick v. Austria, 26 April 1995, § 38, Series A no. 313). The limits of permissible criticism are narrower in relation to a private citizen than in relation to politicians or governments (see, for example, Delfi AS, cited above, § 132; Castells v. Spain, 23 April 1992, § 46, Series A no. 236; Incal v. Turkey, 9 June 1998, § 54, Reports 1998 ‑ IV; and Tammer v. Estonia, no. 41205/98, § 62, ECHR 2001 ‑ I). 56. Moreover, the Court has previously held that in the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public ’ s access to news and facilitating the dissemination of information in general (see Ahmet Yıldırım v. Turkey, no. 3111/10, § 48, ECHR 2012; Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), nos. 3002/03 and 23676/03, § 27, ECHR 2009; and Delfi, cited above, § 133 ). At the same time, in considering the “duties and responsibilities” of a journalist, the potential impact of the medium concerned is an important factor (see Delfi, cited above, § 134; see also Jersild v. Denmark, cited above, § 31 ). 57. The Court further reiterates that the right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to respect for private life (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004 ‑ VI; and Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 40, 21 September 2010). In order for Article 8 to come into play, however, an attack on a person ’ s reputation must attain a certain level of seriousness and be made in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Delfi AS, cited above, § 137; Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012; and A. v. Norway, no. 28070/06, § 64, 9 April 2009). 58. When examining whether there is a need for an interference with freedom of expression in a democratic society in the interests of the “protection of the reputation or rights of others”, the Court may be required to ascertain whether the domestic authorities have struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely on the one hand freedom of expression protected by Article 10, and on the other the right to respect for private life enshrined in Article 8 (see Delfi AS, cited above, § 138; Axel Springer AG, cited above, § 84; Hachette Filipacchi Associés v. France, no. 71111/01, § 43, 14 June 2007; MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011). 59. The Court has found that, as a matter of principle, the rights guaranteed under Articles 8 and 10 deserve equal respect, and the outcome of an application should not vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher of an offending article or under Article 8 of the Convention by the person who has been the subject of that article. Accordingly, the margin of appreciation should in principle be the same in both cases (see Axel Springer AG, cited above, § 87, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 106, ECHR 2012, with further references to the cases of Hachette Filipacchi Associés, cited above, § 41; Timciuc v. Romania ( dec. ), no. 28999/03, § 144, 12 October 2010; and Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011). Where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court ’ s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Axel Springer AG, cited above, § 88, and Von Hannover (no. 2), cited above, § 107, with further references to MGN Limited, cited above, §§ 150 and 155; and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57, 12 September 2011). In other words, there will usually be a wide margin afforded by the Court if the State is required to strike a balance between competing private interests or competing Convention rights (see Delfi AS, cited above, § 139; Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 ‑ I; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 113, ECHR 1999 ‑ III; and Ashby Donald and Others v. France, no. 36769/08, § 40, 10 January 2013). (b) Application of those principles to the present case ( i ) Preliminary remarks and applicable criteria 60. In order to determine the standards applicable in the instant case, the Court will consider the nature of the applicants ’ rights of expression in view of their role in the process of communication and the specific interest protected by the interference, namely – as was implied by the domestic courts – the rights of others. 61. The Court notes that both the first applicant, as a self-regulatory body of internet service providers, and the second applicant, as a large news portal, provided forum for the exercise of expression rights, enabling the public to impart information and ideas. Thus, the Court shares the Constitutional Court ’ s view according to which the applicants ’ conduct must be assessed in the light of the principles applicable to the press (see paragraph 25 above). 62. The Court reiterates in this regard that although not publishers of the comments in the traditional sense, Internet news portals must, in principle, assume duties and responsibilities. Because of the particular nature of the Internet, those duties and responsibilities may differ to some degree from those of a traditional publisher, notably as regards third-party contents (see Delfi AS, cited above, § 113). 63. In particular, the Court has examined in the case of Delfi AS the duties and responsibilities under Article 10 § 2 of large Internet news portals where they provide, for economic purposes, a platform for user-generated comments and where the users of such platforms engage in clearly unlawful expressions, amounting to hate speech and incitement to violence. 64. However, the present case is different. Although offensive and vulgar (see paragraphs 12 and 14 above), the incriminated comments did not constitute clearly unlawful speech; and they certainly did not amount to hate speech or incitement to violence. Furthermore, while the second applicant is the owner of a large media outlet which must be regarded as having economic interests, the first applicant is a non-profit self-regulatory association of Internet service providers, with no known such interests. 65. The domestic courts found that the impugned statements violated the personality rights and reputation of the plaintiff company, a moral person. At this juncture the Court notes that the domestic authorities accepted without any further analysis or justification that the impugned statements were unlawful as being injurious to the reputation of the plaintiff company. 66. As the Court has previously held, legal persons could not claim to be a victim of a violation of personality rights, whose holders could only be natural persons (see Sdružení Jihočeské Matky v. Czech Republic ( dec. ), no. 19101/03, 10 July 2006). There is a difference between the commercial reputational interests of a company and the reputation of an individual concerning his or her social status. Whereas the latter might have repercussions on one ’ s dignity, for the Court, interests of commercial reputation are devoid of that moral dimension (see Uj v. Hungary, no. 23954/10, § 22, 19 July 2011). Moreover, the Court reiterates that there is an interest in protecting the commercial success and viability of companies, for the benefit of shareholders and employees, but also for the wider economic good. The State therefore enjoys a margin of appreciation as to the means it provides under domestic law to enable a company to challenge the truth, and limit the damage, of allegations which risk harming its reputation (see Steel and Morris v. the United Kingdom, no. 68416/01, § 94, ECHR 2005-II; Kuliś and Różycki v. Poland, no. 27209/03, § 35, ECHR 2009). 67. However, in the present case it is not necessary to decide whether the plaintiff company could justifiably rely on its right to reputation, seen from the perspective of Article 8 of the Convention. It suffices to observe that the domestic courts found that the comments in question constituted an infringement of its personality rights. Indeed, it cannot be excluded that the impugned comments were injurious towards the natural person behind the company and that, in this sense, the decisions of the domestic courts intended to protect, in an indirect manner, that person from defamatory statements. The Court will therefore proceed under the assumption that – giving the benefit of the doubt to the domestic courts ’ stance identifying a valid reputational interest – there was to be a balancing between the applicants ’ Article 10 rights and the plaintiff ’ s Article 8 rights. 68. The Court has already had occasion to lay down the relevant principles which must guide its assessment in the area of balancing the protection of freedom of expression as enshrined in Article 10 and the protection of the reputation of those against whom allegations were made, a right which, as an aspect of private life, is protected by Article 8 of the Convention. It identified a number of relevant criteria, out of which the particularly pertinent in the present case, to which the Court will revert below, are: contribution to a debate of public interest, the subject of the report, the prior conduct of the person concerned, the content, form and consequences of the publication, and the gravity of the penalty imposed on the journalists or publishers (see Couderc and Hachette Filipacchi Associés v. France [GC], cited above, § 93; Von Hannover v. (no. 2), cited above, §§ 108 to 1 1 3, ECHR 2012; and Axel Springer AG, cited above, §§ 90-95, 7 February 2012). At this juncture the Court would add that the outcome of such a balancing performed by the domestic courts will be acceptable in so far as those courts applied the appropriate criteria and, moreover, weighed the relative importance of each criterion with due respect paid to the particular circumstances of the case. 69. In the case of Delfi AS, the Grand Chamber identified the following specific aspects of freedom of expression in terms of protagonists playing an intermediary role on the Internet, as being relevant for the concrete assessment of the interference in question : the context of the comments, the measures applied by the applicant company in order to prevent or remove defamatory comments, the liability of the actual authors of the comments as an alternative to the intermediary ’ s liability, and the consequences of the domestic proceedings for the applicant company (see Delfi AS, cited above, § § 142-43). 70. These latter criteria were established so as to assess the liability of large Internet news portals for not having removed from their websites, without delay after publication, comments that amounted to hate speech and incitement to violence. However, for the Court, they are also relevant for the assessment of the proportionality of the interference in the present case, free of the pivotal element of hate speech. It is therefore convenient to examine the balancing, if any, performed by the domestic courts and the extent to which the relevant criteria (see Von Hannover (no. 2 ), cited above, §§ 108 to 113) were applied in that process, with regard to the specific aspects dictated by the applicants ’ respective positions (see Delfi AS, cited above, §§ 142- 43). 71. Consequently, it has to be ascertained if the domestic authorities struck an appropriate balance between the applicants ’ right under Article 10, as protagonists in providing Internet platform for, or inviting expressions from, third-parties on the one hand, and the rights of the plaintiff company not to sustain allegations infringing its rights under Article 8, on the other. In particular, in the light of the Kúria ’ s reasoning, the Court must examine whether the domestic courts ’ imposition of liability on the applicants for third-party comments was based on relevant and sufficient reasons in the particular circumstances of the case. The Court itself will proceed to assess the relevant criteria as laid down in its case-law to the extent that the domestic authorities failed to do so. ( ii ) Context and content of the impugned comments 72. As regards the context of the comments, the Court notes that the underlying article concerned the business practice of two large real estate websites, which was deemed misleading and injurious to their clients, thus there was a public interest in ensuring an informed public debate over a matter concerning many consumers and Internet users. The conduct in question had already generated numerous complaints to the consumer protection organs and prompted various procedures against the company concerned (see paragraph 16 above). The Court is therefore satisfied that the comments triggered by the article can be regarded as going to a matter of public interest. Moreover, against this background, the article cannot be considered to be devoid of a factual basis or provoking gratuitously offensive comments. 73. The Court attaches importance to the fact that the second applicant is the owner of a large news portal, run on a commercial basis and obviously attracting a large number of comments. On the contrary, there is no appearance that the situation of the first applicant, the self-regulatory association of Internet content providers, was in any manner similar; indeed, the latter ’ s publication of contents of predominantly professional nature was unlikely to provoke heated discussions on the Internet. At any rate, the domestic courts appear to have paid no attention to the role, if any, which the applicants respectively played in generating the comments. 74. As regards the contents of the comments, the domestic courts found that they had overstepped the acceptable limits of freedom of opinion and infringed the right to reputation of the plaintiff company, in that they were unreasonably offensive, injurious and degrading. 75. For the Court, the issue in the instant case is not defamatory statements of fact but value judgments or opinions, as was admitted by the domestic courts. They were denouncements of a commercial conduct and were partly influenced by the commentators ’ personal frustration of having been tricked by the company. Indeed, the remarks can be considered as an ill-considered reaction (compare and contrast Palomo Sánchez and Others cited above, § 73). They were posted in the context of a dispute over the business policy of the plaintiff company perceived as being harmful to a number of clients. 76. Furthermore, the expressions used in the comments were offensive, one of them being outright vulgar. As the Court has previously held, offence may fall outside the protection of freedom of expression if it amounts to wanton denigration, for example where the sole intent of the offensive statement is to insult (see Skałka v. Poland, no. 43425/98, § 34, 27 May 2003); but the use of vulgar phrases in itself is not decisive in the assessment of an offensive expression. For the Court, style constitutes part of the communication as the form of expression and is as such protected together with the content of the expression (see Uj, cited above, § 23). 77. Without losing sight of the effects of defamation on the Internet, especially given the ease, scope and speed of the dissemination of information (see Delfi AS, cited above,§ 147), the Court also considers that regard must be had to the specificities of the style of communication on certain Internet portals. For the Court, the expressions used in the comments, albeit belonging to a low register of style, are common in communication on many Internet portals – a consideration that reduces the impact that can be attributed to those expressions. ( iii ) Liability of the authors of the comments 78. As regards the establishment, in the civil proceedings, of the commentators ’ identities, the Court notes that the domestic authorities did not at all address its feasibility or the lack of it. The Constitutional Court restricted its analysis to stating that the injured party was unlikely to receive any compensation without the liability of the operator of the Internet portal. At this juncture, the Court notes that there is no appearance that the domestic courts enquired into the conditions of commenting as such or into the system of registration enabling readers to make comments on the applicants ’ websites. 79. The national courts were satisfied that it was the applicants that bore a certain level of liability for the comments, since they had “disseminated” defamatory statements (see paragraph 42 above), however without embarking on a proportionality analysis of the liability of the actual authors of the comments and that of the applicants. For the Court, the conduct of the applicants providing platform for third-parties to exercise their freedom of expression by posting comments is a journalistic activity of a particular nature (see Delfi AS, cited above, §§ 112-13). Even accepting the domestic courts ’ qualification of the applicants ’ conduct as “disseminating” defamatory statements, the applicant ’ s liability is difficult to reconcile with the existing case-law according to which “ punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so” ( see Jersild, cited above, § 35; Thoma v. Luxembourg, no. 38432/97, § 62, ECHR 2001 ‑ III; and, mutatis mutandis, Verlagsgruppe News GmbH v. Austria, no. 76918/01, § 31, 14 December 2006, Print Zeitungsverlag GmbH v. Austria, no. 26547/07, § 39, 10 October 2013; and Delfi AS, cited above, § 135). ( iv ) Measures taken by the applicants and the conduct of the injured party 80. The Court observes that although the applicants immediately removed the comments in question from their websites upon notification of the initiation of civil proceedings (see paragraphs 15 above), the Kúria found them liable on the basis of the Civil Code, since by enabling readers to make comments on those websites and in connection to the impugned article, they had assumed objective liability for any injurious or unlawful comments made by those readers. As the Budapest Court of Appeal held, the circumstances of removing the comments were not a matter relevant for the assessment of objective liability but one for the assessment of any compensation (see paragraph 20 above). 81. The Court observes that the applicants took certain general measures to prevent defamatory comments on their portals or to remove them. Both applicants had a disclaimer in their General terms and conditions stipulating that the writers of comments – rather than the applicants – were accountable for the comments. The posting of comments injurious to the rights of third parties were prohibited. Furthermore, according to the Rules of moderation of the second applicant, “ unlawful comments ” were also prohibited. The second applicant set up a team of moderators performing partial follow-up moderation of comments posted on its portal. In addition, both applicants had a notice-and-take-down system in place, whereby anybody could indicate unlawful comments to the service provider so that they be removed. The moderators and the service providers could remove comments deemed unlawful at their discretion (see paragraphs 7-10 above). 82. The domestic courts held that, by allowing unfiltered comments, the applicants should have expected that some of those might be in breach of the law. For the Court, this amounts to requiring excessive and impracticable forethought capable of undermining freedom of the right to impart information on the Internet. 83. The Court also observes that the injured company never requested the applicants to remove the comments but opted to seek justice directly in court – an element that did not attract any attention in the domestic evaluation of the circumstances. Indeed, the domestic courts imposed objective liability on the applicants for “having provided space for injurious and degrading comments” and did not perform any examination of the conduct of either the applicants or the plaintiff. (v) Consequences of the comments for the injured party 84. As the Court has previously held in the context of compensation for the protraction of civil proceedings, juristic persons may be awarded compensation for non-pecuniary damage, where consideration should be given to the company ’ s reputation (see Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 35, ECHR 2000 ‑ IV). However, the Court reiterates that there is a difference between the commercial reputational interests of a company and the reputation of an individual concerning his or her social status. Whereas the latter might have repercussions on one ’ s dignity, for the Court interests of commercial reputation are primarily of business nature and devoid of the same moral dimension which the reputation of individuals encompasses. In the instant application, the reputational interest at stake is that of a private company; it is thus a commercial one without relevance to moral character (see, mutatis mutandis, Uj, cited above, § 22). 85. The consequences of the comments must nevertheless be put into perspective. At the time of the publication of the article and the impugned comments, there were already ongoing inquiries into the plaintiff company ’ s business conduct (see paragraph 17 above). Against this background, the Court is not convinced that the comments in question were capable of making any additional and significant impact on the attitude of the consumers concerned. However, the domestic courts do not appear to have evaluated whether the comments reached the requisite level of seriousness and whether they were made in a manner actually causing prejudice to a legal person ’ s right to professional reputation (see paragraph 57 above). ( vi) Consequences for the applicants 86. The applicants were obliged to pay the court fees, including the fee paid by the injured party for its legal representation (see paragraph 22 above), but no awards were made for non-pecuniary damage. However, it cannot be excluded that the court decision finding against the applicants in the present case might produce legal basis for a further legal action resulting a damage award. In any event, the Court is of the view that the decisive question when assessing the consequence for the applicants is not the absence of damages payable, but the manner in which Internet portals such as theirs can be held liable for third-party comments. Such liability may have foreseeable negative consequences on the comment environment of an Internet portal, for example by impelling it to close the commenting space altogether. For the Court, these consequences may have, directly or indirectly, a chilling effect on the freedom of expression on the Internet. This effect could be particularly detrimental for a non-commercial website such as the first applicant (compare and contrast Delfi AS, cited above, § 161). 87. The Constitutional Court held that the operation of Internet portals allowing comments without prior moderation was a forum of the exercise of freedom of expression (see paragraph 25 above). Indeed, the Court stressed on many occasions the essential role which the press plays in a democratic society (see De Haes and Gijsels v. Belgium, cited above, § 37) – a concept which in modern society undoubtedly encompasses the electronic media including the Internet. 88. However, the Court cannot but observe that the Hungarian courts paid no heed to what was at stake for the applicants as protagonists of the free electronic media. They did not embark on any assessment of how the application of civil-law liability to a news portal operator will affect freedom of expression on the Internet. Indeed, when allocating liability in the case, those courts did not perform any balancing at all between this interest and that of the plaintiff. This fact alone calls into question the adequacy of the protection of the applicants ’ freedom-of-expression rights on the domestic level. ( vii) Conclusion 89. The Court considers that the rigid stance of the Hungarian courts reflects a notion of liability which effectively precludes the balancing between the competing rights according to the criteria laid down in the Court ’ s case law (see Von Hannover (no. 2), cited above, § 107). 90. At this juncture, the Court reiterates that it is not for it to express a view on the appropriateness of methods chosen by the legislature of a respondent State to regulate a given field. Its task is confined to determining whether the methods adopted and the effects they entail are in conformity with the Convention (see Gorzelik and Others v. Poland, cited above, § 67 ). 91. However, in the case of Delfi AS, the Court found that if accompanied by effective procedures allowing for rapid response, the notice-and-take- down-system could function in many cases as an appropriate tool for balancing the rights and interests of all those involved. The Court sees no reason to hold that such a system could not have provided a viable avenue to protect the commercial reputation of the plaintiff. It is true that, in cases where third-party user comments take the form of hate speech and direct threats to the physical integrity of individuals, the rights and interests of others and of the society as a whole might entitle Contracting States to impose liability on Internet news portals if they failed to take measures to remove clearly unlawful comments without delay, even without notice from the alleged victim or from third parties (see Delfi AS, cited above, § 159). However, the present case did not involve such utterances. The foregoing considerations are sufficient for the Court to conclude that there has been a violation of Article 10 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 92. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 93. The applicants made no damage claim. B. Costs and expenses 94. The applicants, jointly, claimed 5,100 euros (EUR) for the costs and expenses incurred before the Court. This sum corresponds to 85 hours of legal work billable by their lawyer at an hourly rate of EUR 60. 95. The Government contested this claim. 96. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the full sum claimed. C. Default interest 97. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. It reiterated in particular that, although not publishers of comments in the traditional sense, Internet news portals had to, in principle, assume duties and responsibilities. However, the Court considered that the Hungarian courts, when deciding on the notion of liability in the applicants’ case, had not carried out a proper balancing exercise between the competing rights involved, namely between the applicants’ right to freedom of expression and the real estate websites’ right to respect for its commercial reputation. Notably, the Hungarian authorities accepted at face value that the comments had been unlawful as being injurious to the reputation of the real estate websites. It is to be noted that the applicants’ case was different in some aspects from the Delfi AS v. Estonia case (see above) in which the Court had held that a commercially-run Internet news portal had been liable for the offensive online comments of its readers. The applicants’ case was notably devoid of the pivotal elements in the Delfi AS case of hate speech and incitement to violence. Although offensive and vulgar, the comments in the present case had not constituted clearly unlawful speech. Furthermore, while Index is the owner of a large media outlet which must be regarded as having economic interests, Magyar Tartalomszolgáltatók Egyesülete is a non-profit self-regulatory association of Internet service providers, with no known such interests. |
182 | Risk of being subjected to domestic violence in case of deportation | II. RELEVANT DOMESTIC LAW 29. The basic provisions mainly applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the 2005 Aliens Act ( Utlänningslagen, 2005:716 – hereafter referred to as “the 2005 Act”) which replaced, on 31 March 2006, the old Aliens Act ( Utlänningslagen, 1989:529). Both the old Aliens Act and the 2005 Act define the conditions under which an alien can be deported or expelled from the country, as well as the procedures relating to the enforcement of such decisions. 30. Chapter 5, Section 1, of the 2005 Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, Section 1, of the 2005 Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, Section 2, of the 2005 Act). 31. As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, Section 1, of the 2005 Act). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, Section 2, of the 2005 Act). 32. Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This applies, under Chapter 12, Section 18, of the 2005 Act, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced. If a residence permit cannot be granted under this provision, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, Sections 1 and 2, of the 2005 Act, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, Section 19, of the 2005 Act). 33. Under the 2005 Act, matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances; the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3, and Chapter 16, Section 9, of the 2005 Act). Hence, upon entry into force on 31 March 2006 of the 2005 Act, the Aliens Appeals Board ceased to exist. III. RELEVANT INFORMATION ON AFGHANISTAN 34. In so far as relevant, the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Afghan Asylum-Seekers of July 2009, which replaced the previous Guidelines from December 2007, set out the following: In view of the serious and widespread human rights violations and ongoing armed conflict in many parts of the country, UNHCR considers that a significant number of Afghan asylum seekers are in need of international protection. Applications by Afghan asylum-seekers should be determined on an individual basis, according to fair and efficient refugee status determination procedures, including the right of appeal. Favourable consideration should be given to the specific groups identified in these Guidelines, including, but not limited to (i) persons perceived as contravening Sharia law and members of minority religious groups; (ii) ethnic minority groups; (iii) persons associated with or perceived as supporting the Government, including civil society members; (iv) actual or perceived supporters of armed anti-Government groups; (v) journalists; (vi) persons associated with the People's Democratic Party of Afghanistan or other left-aligned political parties; (vii) women; (viii) children; and (ix) persons at risk of becoming victims of blood feuds. UNHCR further considers that an internal flight or relocation alternative (IFA/IRA) is not available within certain parts of Afghanistan due to a number of factors. If, however, the availability of an IFA/IRA must be assessed as a requirement in a national eligibility procedure, it should be examined carefully and on a case-by-case basis, in light of the requisite relevance and reasonableness analyses, taking into account the individual circumstance of the case, and bearing in mind the cautions in these Guidelines. Even in those exceptional cases where relocation to an accessible area might be considered as viable to eliminate the existing threat, such area can only be a reasonable alternative in cases where the claimant has strong family, social or tribal links in the area of displacement, permitting relocation without undue economic and social hardship. ... (g) Women Women are at particular risk of ill-treatment if perceived as not conforming to the gender roles ascribed to them by society, tradition and even the legal system. Ill-treatment occurs in a variety of forms and may be inflicted by several actors, including family members. Such treatment includes domestic violence, excessive custodial sentences and degrading and inhuman treatment. While there is a limited number of women holding public office, women's rights continue to be curtailed, restricted and systematically violated. In April 2009, for instance, a Shiite Personal Status Law was passed by Parliament and signed by President Karzai. The law requires, inter alia, women to comply with their husbands'sexual requests, and to obtain permission to leave the home, except in emergencies. The code has yet to be implemented and is currently under review as a result of international pressure. Cases of physical violence perpetrated against women and girls in Afghanistan have increased by about 40 % in the period from March 2007 to March 2008. Existing figures indicate that currently up to 80 % of Afghan women are affected by domestic violence. Human rights organizations report an overall increase of cases of self-immolation and other forms of suicide. The phenomenon of female self-immolation is commonly linked to the pervasive societal discrimination against women. Survivors of sexual violence generally lack basic support mechanisms such as trauma counselling and medical treatment, as well as judicial capacity for forensics analysis. The social stigma attached to the reporting of gender-based violence in Afghanistan often prevents victims from seeking physical or psychological treatment. Afghan women, who have adopted a less culturally conservative lifestyle, such as those returning from exile in Iran or Europe, continue to be perceived as transgressing entrenched social and religious norms and may, as a result, be subjected to domestic violence and other forms of punishment ranging from isolation and stigmatization to honour crimes for those accused of bringing shame to their families, communities or tribes. Actual or perceived transgressions of the social behavioural code include not only social behaviour in the context of a family or a community, but also sexual orientation, the pursuit of a professional career, and mere disagreements as to the way family life is conducted. Unaccompanied women or women lacking a male “tutor” (mahram) continued to face limitations on conducting a normal social life. They include divorced women, unmarried women who are not virgins, and women whose engagements to be married have been broken. Unless they marry, which is very difficult given the social stigma associated with these women, social rejection and discrimination continue to be the norm. Many Afghan women are prevented from leaving the family compound without a burqa and a male companion, who has to be a husband or a close relative. Women without male support and protection generally lack the means of survival, given the social restrictions on women living alone, including the limitations on their freedom of movement. This is reflected in the absence of solutions available to the few women able to access domestic violence shelters. Unable to live independently, they face years of quasi-detention, prompting many to return to abusive family situations. The results of such “reconciliation” are generally not monitored and abuse or honour crimes committed upon return are often done with impunity. Forced and child marriages continue to be widely practiced in Afghanistan, and can occur in a variety of forms. Statistics show that nearly 60 % of girls in Afghanistan are married before they reach 16 years old. Most marriages continued to be arranged by families. However, more coerced forms include'sale'marriage, that is, girls sold for a fixed quantity of goods, cash or simply to settle a family debt; bad dadan, a tribal form of dispute-settling in which the offending family offers one girl for marriage into the wronged family, for instance to settle a blood debt; and badal, when two families exchange their daughters in an attempt to minimize marriage costs. Furthermore, women's rights activists face threats and intimidation, particularly if outspoken about women's rights, the role of Islam or the behaviour of commanders. In areas under the control of armed anti-Government groups, there are growing indications that women face systematic societal discrimination. For example, a significant number of female medical graduates is systematically refusing to work in rural areas, due to the fear of being targeted by insurgents. These developments affect women's access to health in a disproportionate way. Access to education for girls is also severely curtailed. According to the Ministry of Education and aid agencies over five million school-age children (three million of them girls) have been deprived of education as a consequence of conservative customs, poverty, lack of education facilities and a culture of gender discrimination. The deterioration of the security situation has also had a detrimental effect on education. Armed anti-Government groups have continued their systematic attacks on schools, teachers, pupils (particularly schoolgirls) and parents. According to the Afghan Ministry of Education (MoE), more than 600 primary, secondary and high schools closed due to such attacks. Up to 80 % of schools are closed in the four southern provinces of Helmand, Kandahar, Zabul and Urozgan, with Helmand Province having only 54 schools, primarily for boys, functioning, compared to 223 schools open in 2002. Consequently, between 230,000 to 300,000 students have been deprived of an education in 12 provinces, according to MoE officials. Girls'schools are increasingly a target of attacks. Some 50 % of security incidents at schools across the country were specifically directed against girls'schools despite the fact that they represent only 14.8 % of the total number of primary, secondary and high schools in the country. Furthermore, female teachers are specifically targeted and higher bounties are offered for killing them. In November 2008, in a widely reported attack in Kandahar, 12 students and four teachers, all female, were sprayed with acid and suffered severe injuries. Given the pervasive societal discrimination and the widespread sexual and gender based violence, Afghan women and girls, particularly those living in areas affected by the armed conflict or under the de facto control of armed anti-Government groups, may be at risk of persecution depending on their individual profile and circumstances. Failure to conform to conventional roles or transgression of social and religious norms may expose women and girls to violence, harassment or discrimination in Afghanistan. As such, women with particular profiles, including, but not limited to victims of domestic violence or other serious forms of violence, unaccompanied women or single heads of household, women with visible social or professional roles, such as journalists, human rights activists and community workers, may be at risk of persecution on the ground of membership of a particular social group. Where non-conformity with traditional roles is perceived as opposing traditional power structures, the risk of persecution may be linked to the ground of religion and/or political opinion. Furthermore, measures which restrict one's ability to earn a living so that survival is threatened, or severe limitations to accessing education or health services, may also amount to persecution. 35. The US State Department Human Rights Report on Afghanistan for 2008, published on 25 February 2009 stated, inter alia : Women The law criminalizes rape, which is punishable by death, but under Shari'a, which the country's laws draw from and cannot conflict, the criminalization did not extend to spousal rape. Under Shari'a, a rape case requires a woman to produce multiple witnesses to the incident, while the man need simply claim it was consensual sex, often leading to an adultery conviction of the victim. Adultery is defined in the Penal Code and designated a crime; premarital sex is not designated a crime, but local officials often considered it a "moral" offense. While the MOI reported 226 cases of rape during the year; however, the actual number of cases generally was believed to be much higher. Of the reported cases, 28 were charges of rape against females and 198 were of rape against males. The MOI reported 172 arrests in connection with rape cases. Statistics on convictions were unavailable. Rapes were difficult to document due to social stigma. Female victims faced stringent societal reprisal from being deemed unfit for marriage to being imprisoned. According to NGOs jail authorities frequently raped women imprisoned overnight in jail. The Afghan penal code criminalizes assault, and courts entered judgments against domestic abusers under this provision. According to NGO reports, hundreds of thousands of women continued to suffer abuse at the hands of their husbands, fathers, brothers, armed individuals, parallel legal systems, and institutions of state such as the police and justice system. Many elements of society tolerated and practiced violence against women. A Kabul women's shelter reported receiving 50 new cases of domestic violence victims a month from MOWA referrals. According to the shelter's report the weak economy and poor security contributed to the incidence of domestic violence. Authorities rarely prosecuted abusers and only occasionally investigated complaints of violent attacks, rape, or killings, or suicides of women. If cases came to court, the accused were often exonerated or punished lightly. The director of a women's shelter in Kabul noted domestic violence occurred in most homes but went largely unreported due to societal acceptance of the practice. Domestic violence usually consisted of beating women and children and, less often, burning women. During the year, the AIHRC initiated additional efforts to collect statistics on violence against women. There were at least 19 women's shelters across the country. The five shelters in Kabul were home to more than 100 women and girls. The Ministry of Women's Affairs (MOWA) and other agencies referred women to the centers, which were designed to give protection, accommodation, food, training, and healthcare to women escaping violence in the home or seeking legal support due to family feuds. According to the MOWA, as many as 20 women and girls were referred to the MOWA's legal department every day; however, space at the specialized shelters was limited. Women in need of shelter who could not find a place in the Kabul shelters often ended up in prison. The concept of women's shelters was not widely accepted in society, as many persons treated them with distrust and did not understand their utility. The director of one shelter stated she always referred to the location as a mediation centre, as "shelter" was considered a negative word. Policewomen trained to help victims of domestic violence complained they were instructed not to do outreach to victims but simply to wait for victims to show up at police stations. This significantly hindered their work, as reporting domestic violence was not socially accepted. UNAMA reported police leadership often did not provide female officers with equipment or vehicles necessary to do outside investigations. A Herat-based NGO, however, reported recently graduated women police officers there were active in crime investigation including investigating cases of domestic violence. During the year, a local NGO conducted four domestic violence trainings for 240 ANP officers in Kabul, including those working in ANP Family Response Units. The Family Response Units are staffed primarily by female police officers and address violence and crimes against women, children, and families. They offer mediation and resources to prevent future instances of domestic violence. Women continued to face pervasive human rights violations and remained largely uninformed about their rights under the law. Discrimination was more acute in rural areas and small villages. Women in urban areas continued to make strides toward greater access to public life, education, health care, and employment; however, the denial of educational opportunities during the continuing insurgency, as well as limited employment possibilities and the threat of violence, continued to impede the ability of many women to improve their situation. Societal discrimination against women persisted, including domestic abuse, rape, forced marriages, exchange of girls to settle disputes, kidnappings, and honour killings. In some rural areas, particularly in the south, women were forbidden to leave the home except in the company of a male relative ... According to a report released during the year by Womankind, 87% of women complained they were victims of violence, half of it sexual. According to the report, more than 60% of marriages were forced and, despite laws banning the practice, 57% of brides were under the legal marriage age of 16. The report stated many of these girls were offered as restitution for a crime or as debt settlement. Local officials occasionally imprisoned women at the request of family members for opposing the family's choice of a marriage partner or being charged with adultery or bigamy. Women also faced bigamy charges from husbands who had deserted them and then reappeared after the woman had remarried. Local officials imprisoned women in place of a family member who had committed a crime but could not be located. Some women resided in detention facilities because they had run away from home due to domestic violence or the prospect of forced marriage. Several girls between the ages of 17 and 21 remained detained in Pol-e-Charkhi prison having been captured after fleeing abusive forced marriages. The AIHRC documented a total of 76 honour killings throughout the year; however, the unreported number was believed to be much higher. In September, according to a local NGO, an 18 year-old woman in Kapisa Province was killed by her brother because she had run away from a forced marriage. Reportedly, after the woman ran away to a Kabul women's shelter the Governor of Kapisa intervened in the case, sheltered her, and forced the woman's mother to return her to Kapisa, resulting in her death. Women occasionally resorted to self-immolation when they felt there was no escape from their situations. During the year the AIHRC documented 72 cases of self-immolation, in contrast to 110 cases in 2007. Other organizations reported an overall increase during the past two years. According to the AIHRC, almost all the women had doused themselves with gasoline and set themselves alight. In Herat Province, during the first six months of the year, the Herat city hospital alone recorded 47 cases of self-immolation, of whom 40 died. There have also been reports of relatives setting women on fire to create the appearance of self-immolation ... There is no law specifically prohibiting sexual harassment. Women who reported cases of abuse or who sought legal redress for other matters reported pervasive discrimination within the judicial system. Local family and property law were not explicitly discriminatory toward women, but in parts of the country where courts were not functional or knowledge of the law was minimal, elders relied on Shari'a and tribal custom, which generally were discriminatory toward women. Most women reported limited access to justice in tribal shuras, where all presiding elders were men; women in some villages were not allowed any access for dispute resolution. Women's advocacy groups reported informal intervention from the government through letters to local courts encouraging interpretations of the law more favourable to women ... 36. The UK Home Office, Country of Origin Information Report on Afghanistan of 18 February 2009, states in paragraphs 23.27- 23.30 about divorce: Islamic Sharia and Constitution of the country have provided suitable rights for women and men, but practically and in some rules and practices of equality between men and women these rights are not ensured. Current legislation leaves women largely unprotected. A man can divorce his wife without due process. In the absence of officially enforced marriage and divorce registration women remain particularly open to abusive practices. A woman can remarry three months after divorce period (Edat). However, if challenged, she will have to provide witnesses to prove her divorce in court. The woman can initiate the divorce process if she has enough reasons to do so; accepted reasons among others include: her husband must be sick and it endangers her; her husband must fail to provide for the family; her husband must be absent for more than four years in the house or be sentenced for imprisonment of 10 years or more. In this case, the court will assign her mahr – divorce maintenance – and custody of girls until they reach their ninth birthday and boys until their seventh birthday.” (The Afghanistan Human Rights Commission report, December 2008). The Womankind report of February 2008 noted “Afghan civil law contains numerous provisions that protect women's human rights in the family, such as their right to divorce if they are being maltreated. While seldom enforced, existing law provides a basis from which to advocate for enforcement and education about women's human rights.” Further, “Women's choices regarding marriage and divorce remain circumscribed by custom and discriminatory laws ... ” (Freedom House, 2008) UNHCR's December 2007 paper concurred “ Women remain deprived of basic civil rights, including in cases of divorce, custody and with regard to inheritance rights.” Womankind also recorded that “Stigma and shame surround divorced women ... rendering them unmarriageable and subsequently, financially destitute. Polygamy is one of the few options available to divorced women, who have low social status but require a husband for financial dependence.” Also, “Women's economic dependence on male family members prevents them from seeking divorce or leaving abusive marriages.” An IRIN News article dated 16 July 2008 reported that “In Afghanistan sexual relations between a man and a woman outside marriage are considered a serious crime and offenders can face death penalty and/or a lengthy prison sentence, depending on their marital status and other circumstances ... Every year hundreds of female sex workers are sent to prison for allegedly having'unlawful sexual relationships', according to women's rights activists ... ” However, high food prices, drought, unemployment and lack of socio-economic opportunities are pushing some women and young girls in northern Afghanistan into commercial sex work, women's rights activists and several affected women told IRIN ... 37. The Human Rights Watch, in its report “ We Have the Promises of the World” of 6 December 2009, on women's rights in Afghanistan, details emblematic cases of ongoing rights violations in five areas: attacks on women in public life; violence against women; child and forced marriage; access to justice; and girls'access to secondary education. The summary set out, inter alia : Eight years after the fall of the Taliban, and the establishment of the Karzai government, Afghan women continue to be among the worst off in the world. Their situation is dismal in every area, including in health, education, employment, freedom from violence, equality before the law, and political participation ... The diminishing status of women's rights in Afghanistan came back into focus in March 2009 when the Shia Personal Status law, which was riddled with Taliban style misogyny, was passed by parliament and signed by President Hamid Karzai. The law regulates the personal affairs of Shia Muslims, including divorce, inheritance, and minimum age of marriage, but, as detailed below, severely restricts women's basic freedoms. ... the final outcome fell far short of expectations, apparently because President Karzai was intent on maintaining the electoral support of Shia fundamentalists. A month before the presidential election he issued by decree an amended version of the law which still includes articles that impose drastic restrictions upon Shia women, including the requirement that wives seek their husbands'permission before leaving home except for unspecified “reasonable legal reasons.” The law also gives child custody rights to fathers and grandfathers, not mothers or grandmothers, and allows a husband to cease maintenance to his wife if she does not meet her marital duties, including sexual duties. The furor over the Shia law highlighted the fragility of the gains made by Afghan women, human rights activists, and reform-minded politicians. The dominant political factions of Afghanistan remain ideologically hostile to many of the rights that many women have started to enjoy since the fall of the Taliban, such as freedom of movement, freedom to work, and the right to education. Many of the women interviewed for this report observed that the space for them to work as activists for change has diminished over the past few years, as the government has come to increasingly rely on conservative factions to maintain political control. Violence against Women: Violence against women in Afghanistan is endemic. A nationwide survey of 4,700 women, published in 2008, found that 87.2% had experienced at least one form of physical, sexual, or psychological violence or forced marriage in their lifetimes. The forms of violence include rape, physical violence, forced marriage, and “honour killings.” Too often the attitudes of those in government and the police reflect the misogynous views, rooted in cultural traditions - but increasingly rejected by younger generations of Afghans – that underlie some of the violence against women. As Dr. Soraya Sobhrang, Women's Protection and Development Commissioner of the Afghanistan Independent Human Rights Commission (AIHRC), told us, “Police and judges see violence against women as legitimate, so they do not prosecute cases.” In the vast majority of cases women will not seek help because of their fears of police abuse or corruption, or their fears of retaliation by perpetrators of violence. Low social status and social stigmas deter women from going against their families to pursue justice, particularly in cases of domestic abuse. For a woman even to approach the police or courts requires her to overcome the public opprobrium that often still attaches to women who leave their houses without a male guardian, let alone women who seek protection from public authorities. In a 2008 study by the Women and Children Legal Research Foundation (WCLRF), only 15% thought that a woman disabled by violence should seek police help. For those who do seek help, many encounter lack of concern, if not outright hostility or abuse. Rape is not a crime in the Afghan Penal Code. Under the code, rapists can only be charged with “forced” zina, or adultery, which sometimes results in women also being prosecuted for zina. In a major achievement for civil society groups and women's rights activists, the president issued the Elimination of Violence Against Women law, which makes rape a crime. At the time of writing the law is being considered by parliament ... Access to Justice: An underlying problem is women's access to justice. Police training involves little or no training in gender based violence or women's rights, particularly as training has been increasingly focused on counter-insurgency and security skills rather than crime prevention, crime solving and community policing. Deeply entrenched cultural prejudices prevent many women accessing the police or the courts because of the fear of being stigmatized a “bad woman.” Women face discrimination and prejudice in police stations and the courts from officials who often do not know the law but penalize women according to customary law, which places great emphasis on notions of female “honour” and chastity. The majority of women in jail are charged with extramarital sex (zina) or with “running away”- something that is not a crime in Afghan law or Sharia but often reflects a conservative cultural view that sees women as property of fathers or husbands. One widely welcomed policy response to this was the creation of female-staffed “Family Response Units” (FRUs) in police stations. But, as detailed in this report, there are serious problems with the implementation of FRUs, including insufficient numbers of women police officers and inadequate training, mentoring, and facilities ... THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 38. The applicant complained that the enforcement of the deportation order to Afghanistan would be in violation of Article 3 of the Convention, which sets out: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 39. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Submissions by the parties 40. The Government noted that international reports confirmed that the general situation for women in Afghanistan was very difficult and that women who lacked a social network and the protection of a male person within the family or the extended family would be particularly exposed to the risk of having their human rights violated, although it appeared that the situation was slightly better in Kabul compared to rural areas. 41. In the present case, however, they maintained that the applicant has failed to substantiate being at a real and concrete risk of being subjected to ill-treatment upon return to Afghanistan, either by Afghan authorities or by private individuals. 42. They also noted that the applicant's identity was unsubstantiated and that her story was vague and lacking in detail and evidence and that her general credibility could be questioned. 43. She had been particularly vague regarding her alleged extramarital relationship and failed to submit information thereon to the Swedish authorities during the domestic proceedings, except for the information that he was Swedish. That seemed especially peculiar since the applicant apparently met her new partner already in the autumn 2007 and information about that relationship could have been considered relevant to her claim for asylum. She has not provided any explanation to the domestic authorities as to why she omitted to furnish concrete information about the man and the relationship, including her alleged move to his address in April 2009. In any event there was nothing to indicate that the alleged extramarital relationship had come to the knowledge of the Afghan authorities, her family or her husband's family. 44. Likewise, it was only in her observations of 4 November 2009 that the applicant explained how her family allegedly had rejected her after several telephone conversations in the autumn of 2005. However, that version of events was inconsistent with her statement to the Migration Board in her application of 13 October 2008 that she had not had any contact with her relatives since the summer of 2005. Moreover, the applicant's claim that her family had rejected her and that she had no social network or male protection in her home country was not supported by any evidence. It thus remained unsubstantiated that the applicant's family had repudiated her as also found by the Migration Court in its judgment of 19 March 2007. 45. As to the submitted letter of 2 October 2008 from the Regional Office for the Baltic and Nordic countries of the UNHCR, the Government contended that it had little value as evidence since apparently the author has no personal knowledge of the applicant and the letter rather gave the UNHCR's views on the need for protection of Afghan female asylum seekers in general. 46. Finally, in the Government's view the applicant was still married and it did not appear likely that the applicant's divorce attempt had come to the attention of the Afghan authorities. Moreover, it could not be ruled out that the applicant could obtain a divorce in Afghanistan. That was possible in some situations, for example if the husband was ill and that endangered the wife. They noted in this respect that it emerged in the domestic proceedings that the applicant's husband, X, suffered from mental health problems in the form of anxiety, sleeplessness and aggressive behaviour. 47. The applicant maintained that, if returned from Sweden to Afghanistan, she would face a real risk of being persecuted, or even sentenced to death, because she had separated from her husband and was involved with another man. She further claimed that she risks being subjected to inhuman and degrading treatment in Afghanistan since her family has disowned her and she therefore would have no social network or male protection. In this respect, she invoked the poor security situation and the difficult humanitarian conditions for women in Afghanistan. 48. The applicant believed that both her own family and her husband's family in Kabul had been informed about her attempt to dissolve the marriage in Sweden because the District Court had contacted her husband and been told on 17 July 2008 that he could not consent to a divorce. 49. Furthermore she submitted that it was impossible to prove that her family had repudiated her. They did not want to have contact with her and it was difficult to see what submission might reasonably be expected to substantiate her account in this respect. 50. Finally, the applicant refuted that she could be successful in divorcing her husband in Afghanistan because it would be impossible for her to gather two witnesses in her favour. However, even if she returned without her husband, as she intended to, she would still be at risk of treatment contrary to Article 3 of the Convention for the reasons invoked above. 2. The Court's assessment 51. The Court reiterates that Contracting States have the right as a matter of international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens ( Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006-XII). However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country ( Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008-...). 52. Whilst being aware of the reports of serious human rights violations in Afghanistan, as set out above, the Court does not find them to be of such a nature as to show, on their own, that there would be a violation of the Convention if the applicant were to return to that country. The Court thus has to establish whether the applicant's personal situation is such that her return to Afghanistan would contravene Article 3 of the Convention. 53. The Court acknowledges that, owing to the special situation in which asylum seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof. However, when information is presented which gives strong reasons to question the veracity of an asylum seeker's submissions, the individual must provide a satisfactory explanation for the alleged discrepancies (see, among other authorities, Collins and Akasiebie v. Sweden (dec.), no. 23944/05, 8 March 2007, and Matsiukhina and Matsiukhin v. Sweden (dec.), no. 31260/04, 21 June 2005). In principle, the applicant has to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see N. v. Finland, no. 38885/02, § 167, 26 July 2005 and NA. v. the United Kingdom, no. 25904/07, § 111, 17 July 2008). Where such evidence is adduced, it is for the Government to dispel any doubts about it. 54. In order to determine whether there is a risk of ill-treatment, the Court must examine the foreseeable consequences of sending the applicant to Afghanistan, bearing in mind the general situation there and her personal circumstances (see Vilvarajah and Others v. the United Kingdom, judgment of 30 October 1991, Series A no. 215, § 108 in fine ). 55. The Court firstly observes that women are at particular risk of ill ‑ treatment in Afghanistan if perceived as not conforming to the gender roles ascribed to them by society, tradition and even the legal system. The UNHCR thus observed that Afghan women, who have adopted a less culturally conservative lifestyle, such as those returning from exile in Iran or Europe, continue to be perceived as transgressing entrenched social and religious norms and may, as a result, be subjected to domestic violence and other forms of punishment ranging from isolation and stigmatisation to honour crimes for those accused of bringing shame to their families, communities or tribes. Actual or perceived transgressions of the social behavioural code include not only social behaviour in the context of a family or a community, but also sexual orientation, the pursuit of a professional career, and mere disagreements as to the way family life is conducted. 56. The Court notes in this respect that, albeit not legally, the applicant has resided in Sweden since 13 August 2004. The Court notes that already for that reason she may be perceived as not conforming to the gender roles ascribed to her by Afghan society, tradition and legal system. More importantly, however, in Sweden in vain she attempted to divorce her husband in 2008 and she has expressed a clear intention of not resuming the marriage. The Court points out that in cases like the one before it, the expression of an intention to divorce could be motivated by previous refusals by the authorities to grant asylum on the motive originally submitted. Thus, it must be expected that an applicant can demonstrate convincingly that the intention is real and genuine. The demand on the applicant may bear some resemblances with cases in which an asylum seeker in a receiving county has converted to Christianity from Islam and allege that the authorities in the Islamic home country have knowledge thereof and that this may result in serious negative life-threatening repercussions upon return ( see, for example, mutatis mutandis, Reza Mohammasi v. the Netherlands (dec.), no. 5140/06, 1 June 2006 and Razaghi v. Sweden (dec.), no. 64599/01, 11 March 2003). In the present case the applicant separated from her husband X in June 2005, approximately one year after the spouses had entered Sweden, and while the appeal against the Migration Board's first refusal of 29 March 2005 was pending before the Migration Board. It is not in dispute that she only saw her husband once thereafter and it is a proven fact that she tried in vain to divorce him in 2008. In these circumstances the Court finds that the applicant has demonstrated a real and genuine intention of not living with her husband. The case thus differs from, for example, S.A. v. The Netherlands (dec.), 3049/06, 12 December 2006 in which the applicant wife did not challenge her marriage, but alleged that her husband was not the father of her child, born only one year after the spouses had entered the Netherlands and requested asylum. The Court found in that case that the allegation was wholly unsubstantiated and noted that it had not resulted in the husband having undertaken any step indicating that he considered a separation, divorce or to challenge the paternity of the child, which could have imposed a risk to the applicant upon return to Afghanistan. 57. The applicant is still formally married to X. He informed the District Court on 17 July 2008 that he opposed her wish to divorce. Thus, if the spouses are deported to Afghanistan, separately or together, X may decide to resume their married life together against the applicant's wish. The Court points out in this connection, for example, the Shiite Personal Status Law that was passed by Parliament and signed by the President in April 2009 which, although yet to be implemented, requires, inter alia, women to comply with their husbands'sexual requests and to obtain permission to leave the home, except in emergencies. It also notes the gloomy figures indicating that currently up to 80 % of Afghan women are affected by domestic violence (see paragraph 34). Moreover, according to the Women's Protection and Development Commissioner of the Afghanistan Independent Human Rights Commission (see paragraph 37) the authorities see violence against women as legitimate, so they do not prosecute in such cases. In the vast majority of cases women will not seek help because of their fears of police abuse or corruption, or their fears of retaliation by perpetrators of violence. Low social status and social stigmas deter women from going against their families to pursue justice, particularly in cases of domestic abuse. For a woman even to approach the police or courts requires her to overcome the public opprobrium affecting women who leave their houses without a male guardian, let alone women who seek protection from public authorities. 58. The Court points out that there are no specific circumstances in the present case substantiating that the applicant will be subjected to such treatment by X, but the Court cannot ignore the general risk indicated by statistic and international reports. 59. The applicant maintained that she was also at risk of being persecuted, and even being sentenced to death, because she had an extramarital relationship. The Court observes, however, that the applicant failed to submit any relevant and detailed information thereon to the Swedish authorities during the domestic proceedings and that subsequently she has not even tried to explain why she failed to do so. Nevertheless, should X perceive the applicant's filing for divorce or other actions as an indication of an extramarital relationship, the Court notes that, according to the US State Department Human Rights Report on Afghanistan, (see paragraph 35) “adultery is defined in the Penal Code and designated a crime; premarital sex is not designated a crime, but local officials often considered it a "moral" offense”. Moreover, the “local officials occasionally imprisoned women at the request of family members for opposing the family's choice of a marriage partner or being charged with adultery or bigamy. Women also faced bigamy charges from husbands who had deserted them and then reappeared after the woman had remarried. Local officials imprisoned women in place of a family member who had committed a crime but could not be located. Some women resided in detention facilities because they had run away from home due to domestic violence or the prospect of forced marriage”. Furthermore, an IRIN News article dated 16 July 2008 maintained that “in Afghanistan, sexual relations between a man and a woman outside marriage are considered a serious crime and offenders can face death penalty and/or a lengthy prison sentence, depending on their marital status and other circumstances.” 60. Should the applicant succeed, as she intends, in living separated from her husband in Afghanistan, the Court notes the statement by the UNHCR (see paragraph 34) that “unaccompanied women or women lacking a male “tutor” continued to face limitations on conducting a normal social life. They include divorced women, unmarried women who are not virgins, and women whose engagements to be married have been broken. Unless they marry, which is very difficult given the social stigma associated with these women, social rejection and discrimination continue to be the norm. Many Afghan women are prevented from leaving the family compound without a burqa and a male companion, who has to be a husband or a close relative. Women without male support and protection generally lack the means of survival, given the social restrictions on women living alone, including the limitations on their freedom of movement. This is reflected in the absence of solutions available to the few women able to access domestic violence shelters. Unable to live independently, they face years of quasi-detention, prompting many to return to abusive family situations. The results of such “reconciliation” are generally not monitored and abuse or honour crimes committed upon return are often done with impunity. ” 61. The Government contended that the applicant's claim that her family had rejected her and that she had no social network or male protection in her home country was unsubstantiated. The Court notes, however, that although there are divergences as to whether the applicant's last contact with her family was in the summer of 2005 or in October 2005, no information has been presented which gives strong reasons to question the veracity of her submissions that she has had no contact with her family for almost five years, which does support her claim that she no longer has a social network or adequate protection in Afghanistan. 62. Having regard to all of the above, in the special circumstances of the present case, the Court finds that there are substantial grounds for believing that if deported to Afghanistan, the applicant faces various cumulative risks of reprisals which fall under Article 3 of the Convention from her husband X, his family, her own family and from the Afghan society. Accordingly, the Court finds that the implementation of the deportation order against the applicant would give rise to a violation of Article 3 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 63. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 64. The applicant claimed compensation for non-pecuniary damage in the amount of 5,000 Euros (EUR). 65. The Government contested that claim. 66. In view of the finding above (see paragraph 62) the Court dismisses the applicant's claim for non-pecuniary damage. 67. The applicant did not claim any reimbursement for costs and expenses incurred before the Court, since the legal work was performed pro bono. III. RULE 39 OF THE RULES OF COURT 68. The Court reiterates that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention. 69. It considers that the indication made to the Government under Rule 39 of the Rules of Court must remain in force until the present judgment becomes final or until the Panel of the Grand Chamber of the Court accepts any request by one or both of the parties to refer the case to the Grand Chamber under Article 43 of the Convention (see F.H. v. Sweden, no. 32621/06, § 107, 20 January 2009). | The Court held that the applicant’s deportation from Sweden to Afghanistan would constitute a violation of Article 3 (prohibition of inhuman or degrading treatment or punishment) of the Convention finding that, in the special circumstances of the present case, there were substantial grounds for believing that if deported to Afghanistan, she would face various cumulative risks of reprisals from her husband, his family, her own family and from the Afghan society which fell under Article 3. The Court noted in particular that the fact that the applicant wanted to divorce her husband, and did not want to live with him any longer, might result in serious life-threatening repercussions. Indeed, the Shiite Personal Status Act of April 2009 required women to obey their husbands’ sexual demands and not to leave home without permission. Reports had further shown that around 80 % of Afghani women were affected by domestic violence, acts which the authorities saw as legitimate and therefore did not prosecute. Lastly, to approach the police or a court, a woman had to overcome the public opprobrium affecting women who left their houses without a male guardian. The general risk indicated by statistics and international reports could not be ignored. |
531 | Death in police custody or in detention | II. RELEVANT DOMESTIC LAW A. National Police Act ( Закон за полицията ), as in force at the relevant time 99. Section 35(1) of the Act provided as follows: “The police authorities shall issue a written order for an arrested person to be taken to the [place of detention].” B. Code of Criminal Procedure ( Наказателно-процесуален кодекс ) 100. By virtue of Article 388 of the Code, the military courts hear criminal cases in which the accused is, for example, a police officer. Where a case would fall within the competence of the military courts, the preliminary investigation is handled by military investigators and prosecutors. 101. Article 362 § 1 (4) taken in conjunction with Article 359 provides that, in the event of a judgment of the European Court of Human Rights finding a violation of the Convention “of significant importance” to a criminal case that has ended by virtue of a judicial decision, the prosecuting authorities shall request the reopening of the case by the competent court. THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 2 OF THE CONVENTION 102. The applicant alleged that her son had been ill-treated and had died as a result of injuries inflicted by police officers, that he had not been provided with timely medical treatment while in custody and that the State authorities had failed to undertake a thorough and effective investigation. Article 2 of the Convention provides as follows: “1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A. Whether Mr Zabchekov died as a result of ill-treatment while in police custody 1. The parties' submissions (a) The applicant 103. The applicant submitted that the Government's explanation, which was based on two main arguments – that the fatal skull injury had been sustained long before Mr Zabchekov's arrest and that the remaining injuries on his body had been received during the chase – was implausible as it did not accord with the evidence. 104. As regards the skull injury, the applicant asserted that the conclusions of the second forensic report had been highly suspect as they had deviated from the findings of the first forensic report without any explanation. The authorities had been quick to rely on the second report, ignoring the contradictions. The second report's conclusion as to the timing of the fatal injury had been based only on the shape of the blood clot as seen on photographic images taken almost six hours after the time of death. The suggestion that the skull injury had been inflicted ten hours before Mr Zabchekov's death, at about 6.45 p.m. on 28 January 1996, was, in the applicant's submission, incompatible with the evidence and highly unrealistic. The occurrence of an injury serious enough to eventually cause death could not have gone completely unnoticed by so many persons who had talked to Mr Zabchekov at length and observed him. Furthermore, the Government had not offered any serious evidence in support of their implied theory that Mr Zabchekov's alleged “permanent, chronic, neurotic condition” had increased the chances that the fatal injury had been caused by “falling on a ... broad, even surface”. The Government's explanation of the other injuries found on Mr Zabchekov's body – on his chest, face and right wrist – was clearly implausible in the applicant's view. Such injuries could not be inflicted by falling to the ground while running or by the normal use of handcuffs. Indeed, the origin of those injuries had never been investigated and the Government had developed their own arbitrary theory for the purposes of the present case. In reality, it was obvious that the injuries were the result of ill-treatment and that, in the absence of any evidence to the contrary, they must have been inflicted at the same time as the fatal skull injury. 105. The applicant also considered it particularly striking that no explanation had been provided concerning the suspect behaviour of the police officers and their conspicuous attempt to forge the detention register. (b) The Government 106. The Government, referring to the second forensic report, stated that the fatal injury had been inflicted more than ten hours prior to Mr Zabchekov's death and, therefore, long before his arrest. It was undisputed that Mr Zabchekov had consumed a large quantity of alcohol before his arrest. He had been drunk and staggering. Furthermore, there was clear evidence that he had fallen several times while running. In the Government's view the evidence concerning his behaviour at the time of his arrest and detention – which corresponded to the typical symptoms of a “lucid interval” after a skull fracture – confirmed the medical experts' conclusions about the timing of the fatal injury. 107. The Government pointed out that the statements of the witnesses relating to the whereabouts of Mr Zabchekov prior to his arrest contained contradictions. Furthermore, on several occasions in 1995 the applicant had stated that her son was ill and – when younger – had sometimes lost consciousness and suffocated. Mr Zabchekov himself had confirmed in 1995 that he had suffered from headaches and fainting. On that basis, the Government concluded that the experts' finding that Mr Zabchekov might have received the fatal injury by falling on a broad hard surface was plausible. 108. The Government stressed that there was no evidence of any ill-treatment by the police. In their view, the injuries to Mr Zabchekov's chest and face must have been the result of his falling on the ground, and those to his wrists must have been caused by the normal use of handcuffs. 2. The Court's assessment (a) General principles 109. Article 2 of the Convention, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention. Together with Article 3, it enshrines one of the basic values of the democratic societies making up the Council of Europe. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 45-46, §§ 146-47; Salman v. Turkey [GC], no. 21986/93, § 97, ECHR 2000-VII; and Velikova v. Bulgaria, no. 41488/98, ECHR 2000-VI). 110. In the light of the importance of the protection afforded by Article 2, the Court must subject complaints about deprivations of life to the most careful scrutiny, taking into consideration all relevant circumstances. Persons in custody are in a vulnerable position and the authorities are under an obligation to account for their treatment. Consequently, where an individual is taken into police custody in good health but later dies, it is incumbent on the State to provide a plausible explanation of the events leading to his death (see, mutatis mutandis, Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V, and Salman and Velikova, cited above). 111. In assessing evidence, the Court adopts the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, pp. 64-65, § 161). However, such proof may follow from the co-existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman, cited above, § 100). (b) Application of those principles to the present case 112. The Court observes that Mr Zabchekov died after being detained for several hours at the Razgrad police station, where he had been brought after being briefly chased by an off-duty police officer. It is incumbent on the Government, therefore, to provide a plausible explanation for Mr Zabchekov's death. 113. The Government's explanation is that Mr Zabchekov's death could not possibly have been the result of police ill-treatment as the second forensic report had concluded that the fatal injury, a skull fracture, had been inflicted at least ten hours prior to the time of death. It followed that the skull fracture had occurred before 7 p.m. on 28 January 1996, whereas Mr Zabchekov's encounter with the police occurred about five hours later. 114. The Court observes that the conclusion of the second report as to the time at which the injury occurred was based on a visual examination of photographs of the blood clot taken six hours after Mr Zabchekov's death. The experts did not even mention why they considered that no changes had occurred in the blood clot after the boy's death. According to the medical opinion submitted by the applicant – uncontested by the Government – such changes did occur and had to be taken into account. Furthermore, the second forensic report, which relied solely on documentary material, departed in significant respects from the conclusions of the first report without stating why that report's findings concerning the strength of the blow and the time of the skull fracture had been incorrect. The first forensic report, in contrast, had been based on a direct observation of the body (see paragraphs 53-59, 70 and 72-77 above). The Court finds that all of the above significantly reduces the reliability of the second report's conclusions. 115. It is true that certain facts in the present case cannot be unequivocally explained: Mr Zabchekov's reported staggering and mumbling at the time of his arrest may be seen as an indication that he had already been injured at that time, but it may also have been the result of his apparently high level of alcohol intoxication (see paragraphs 11, 22, 28, 59, 60, 74, 76 and 95 above). 116. However, if Mr Zabchekov was indeed injured before 7 p.m. on 28 January 1996, as was suggested by the conclusions of the second medical report, that would mean that he went out with friends, visited a bar and then decided to steal car parts while suffering from a skull fracture. That may appear unlikely even if the so-called “lucid interval” between the injury and the death is taken into account. In particular, it is not disputed that Mr Zabchekov was able to run when C attempted to apprehend him and was walking normally when brought to the police station (see paragraphs 12-14, 16 and 29 above). 117. The Court notes that the first forensic report considered that the skull injury had most likely been inflicted between four and six hours prior to Mr Zabchekov's death and, therefore, possibly at a time when he was in police custody, either before or after he was taken to the police station (see paragraph 59 above). Furthermore, there were a number of other injuries to Mr Zabchekov's body which could have been the result of the same events that caused the skull fracture (see paragraphs 55, 56, 58, 77 and 92-94 above). 118. The Government stated that Mr Zabchekov might have sustained his injuries by falling to the ground – before he encountered the police or during the chase – as he was drunk and had a history of health problems. The traces on his wrists were allegedly caused by the normal use of handcuffs. 119. That supposition is not, however, supported by forensic evidence, as the presence or absence of “ contre -coup lesions” characteristic of falls was not recorded by the autopsy (see paragraphs 73 and 95 above). Furthermore, the Court considers it significant that none of the witnesses who were in contact with the applicant's son until he was taken to the police station reported any complaint of an ailment on his part. As regards the use of handcuffs, according to the medical opinion submitted by the applicant, handcuffs may leave marks if they are too tight or the person is struggling or is dragged. The autopsy found a very slight mark on Mr Zabchekov's left hand and severe bruising on his right hand (see paragraphs 55, 56, 58 and 95 above). It was also reported that at some point he was handcuffed to a tree. It seems unlikely, therefore, that the injury to his right wrist was the result of normal use of tight handcuffs. The other two possible explanations – that Mr Zabchekov was struggling or was dragged – may suggest that he was ill-treated. Finally, the Court does not find the information about Mr Zabchekov's alleged illness reliable or particularly pertinent. It was based on statements made by him and by his mother in the context of questioning on criminal charges and, in any event, cannot lead to any reasonable conclusion as regards the skull fracture or the other injuries (see paragraphs 96-98 above). The Government's proposed conclusion that Mr Zabchekov might have injured himself by falling is thus improbable when examined in the light of all the surrounding facts. 120. In assessing the evidence in the present case, the Court, moreover, attaches significant weight to the information that the police officers behaved in a suspect manner and to the fact that the authorities accepted the credibility of their evidence despite serious indications calling for caution. Examples of the police's suspect behaviour are: between 3 a.m. and 5 a.m. on 29 January 1996, when they delayed contact between Mr Zabchekov and a doctor and possibly attempted to choose which doctor saw him (see paragraphs 32-40 above); their apparently false statement, in answer to a question by Dr Mihailov, that Mr Zabchekov had been taken to the police station in the same condition as that in which the doctor had seen him at about 5 a.m. (see paragraph 39 above); and that the detention records were tampered with (see paragraphs 41-46 above) and that Mr Zabchekov was registered post factum as an “unidentified person” although he had been well known to the police officers as a suspect on theft charges and had been recognised by them at the very moment of their encounter (see paragraphs 25, 42 and 96-98 above). These facts were important indications that required thorough investigation; such an investigation was not undertaken. 121. Having regard to all the relevant circumstances, the Court thus finds implausible the Government's explanation of Mr Zabchekov's death, which was based on the conclusion of the second forensic report as to the timing of the injury and a supposition that the boy might have injured himself by falling to the ground. The Government have not offered any other explanation. 122. Accordingly, there has been a violation of Article 2 of the Convention. B. The alleged failure to provide timely medical care 1. The parties' submissions 123. The applicant alleged that, although the police officers had seen the boy shivering and shaking, they had considerably delayed medical intervention through a series of suspect acts between 3 a.m. and 5 a.m. In the applicant's view, the most likely explanation was that there had been an attempt to avoid contact between Mr Zabchekov and an independent doctor who might have revealed evidence of ill-treatment. Alternatively, there had been a reckless disregard for the well-being of a detainee. In either case the delay had been fatal. 124. The Government maintained that the police could not be held responsible for not having realised that Mr Zabchekov had been in need of urgent medical attention. When the police officers had first seen him it had been dark. Furthermore, he had been drunk, there had been dirt all over his body and his hair had covered the bruise over his left eyebrow. Mr Zabchekov's condition had been interpreted as symptomatic of the effects of alcohol. He had never complained of an ailment. The fact that no signs of any major problems had been apparent during the lucid interval had been confirmed by the medical experts. 2. The Court's assessment 125. The Court, referring to its findings as regards the suspect conduct of the police (see paragraph 120 above), observes that they delayed the provision of medical assistance to Mr Zabchekov and that that contributed in a decisive manner to the fatal outcome. 126. The Government's position is that the police officers, not being medical professionals, could not be criticised for having failed to detect that there was a medical emergency. 127. That argument is, however, irrelevant, as it is not disputed that at a certain point after 3 a.m. the police officers realised that Mr Zabchekov's condition was deteriorating. Even then, instead of calling for an ambulance, they contacted their colleagues who had arrested the boy. Those officers, who were on patrol duty, saw fit to abandon their patrolling tasks and drive back to the police station to verify the situation. Having seen Mr Zabchekov's condition, they took the time to drive to the hospital and then return, followed by an ambulance, instead of calling for one (see paragraphs 32-40 above). 128. It is particularly significant, furthermore, that the case file does not contain any trace of criticism or disapproval of that manner of dealing with a detainee's medical problem. 129. The first medical report and the expert whose opinion was submitted by the applicant found that the delay in providing medical assistance had been fatal (see paragraphs 59 and 95 above). 130. The Court thus finds that the behaviour of the police officers between 3 a.m. and 5 a.m. on 29 January 1996 and the lack of any reaction by the authorities constituted a violation of the State's obligation to protect the lives of persons in custody. 131. There has been therefore a violation of Article 2 § 1 of the Convention in that respect. C. The alleged ineffectiveness of the investigation 1. The parties' submissions 132. The applicant considered that the investigation into the death of her son had been inadequate as the authorities had failed to investigate, inter alia : the post hoc doctoring of the detention records; the non-fatal injuries; the police officers' strange behaviour between 3 a.m. and 5 a.m.; the reason why the two doctors had quarrelled at about 5 a.m.; and the fact that the first information the applicant's family had received about Mr Zabchekov's death had failed to mention that the boy had been detained. 133. The applicant further submitted that because of the traditional ties between prosecutors, investigators and the police and the absence, at the material time, of judicial review in respect of decisions not to prosecute, the decision-making authorities responsible for investigating ill-treatment by the police were not sufficiently independent and impartial. Furthermore, this allegedly reflected a broader pattern that had been noted by international organisations. The applicant referred to the Report of the Special Rapporteur on Torture to the United Nations Commission on Human Rights (Document E/CN.4/1997/7 of 10 January 1997), which stated at p. 9: “The Special Rapporteur is concerned by the frequency of allegations of torture or ill-treatment, sometimes followed by death, of persons in police custody [in Bulgaria ]. The rarity of any disciplinary measures and of investigations leading to criminal prosecutions, as well as the virtual absence of successful prosecutions of those responsible, can only lead to a climate of impunity. He believes the Government should establish measures to ensure the independent monitoring, on a sustained basis, of the arrest, detention, and interrogation practices of the relevant law enforcement agencies.” 134. The applicant lastly alleged that she had on several occasions been misinformed by the authorities about the course of the investigation and its findings and had not been given full access to the case file before February 1997, more than a year after her son's death. 135. The Government asserted that the investigation had been prompt and thorough, referring to the numerous interrogations, expert reports and other investigative measures. The applicant had been provided with an opportunity to consult the case file and to submit appeals and requests for further investigation. Her request for an exhumation had rightly been refused as it had been clearly established that Mr Zabchekov's ribs had been intact. 2. The Court's assessment (a) General principles 136. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. The investigation must be, inter alia, thorough, impartial and careful (see McCann and Others, cited above, p. 49, §§ 161-63; Kaya v. Turkey, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 329, § 105; and Çakıcı v. Turkey [GC], no. 23657/94, § 86, ECHR 1999-IV). 137. The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility (see, for example, mutatis mutandis, İlhan v. Turkey [GC], no. 22277/93, § 63, ECHR 2000-VII). 138. For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (see, for example, Güleç v. Turkey, judgment of 27 July 1998, Reports 1998-IV, p. 1733, §§ 81-82, and Oğur v. Turkey [GC], no. 21594/93, §§ 91-92, ECHR 1999-III). This means not only a lack of hierarchical or institutional connection but also a practical independence (see, for example, Ergi v. Turkey, judgment of 28 July 1998, Reports 1998-IV, pp. 1778-79, §§ 83-84, where the public prosecutor investigating the death of a girl during an alleged clash showed a lack of independence through his heavy reliance on the information provided by the gendarmes implicated in the incident). 139. The investigation must also be effective in the sense that it is capable of leading to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death (see, for example, concerning autopsies, Salman, cited above, § 106; concerning witnesses, Tanrıkulu v. Turkey [GC], no. 23763/94, § 109, ECHR 1999-IV; concerning forensic evidence, Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard. 140. There must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory, maintain public confidence in the authorities' adherence to the rule of law and prevent any appearance of collusion in or tolerance of unlawful acts. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Güleç, cited above, p. 1733, § 82, where the father of the victim was not informed of the decisions not to prosecute; Oğur, cited above, § 92, where the family of the victim had no access to the investigation and court documents; and Gül, cited above, § 93; for a full summary of the relevant case-law see McKerr v. the United Kingdom, no. 28883/95, §§ 111-15, ECHR 2001-III). (b) Application of those principles to the present case 141. The Court agrees with the Government that numerous acts of investigation were undertaken in the present case. The investigation commenced promptly and the authorities worked actively on it. An autopsy was carried out, most of the witnesses were questioned repeatedly, two confrontations and a reconstruction of the events were organised and other relevant evidence was collected and analysed. 142. The Court notes, however, that the failure of the autopsy to record morphological data and the absence or presence of “ contre -coup lesions” made it impossible to establish what object might have caused the skull fracture. It is highly significant, furthermore, that the police officers were never asked to explain why the detention register had been forged, why they had not called for an ambulance right away or why they had given apparently false information to Dr Mihailov. These were crucial questions which obviously had to be raised in examinations and confrontations. The reconstruction of the events conducted on 20 March 1996 was, for reasons that are unclear, exclusively concerned with the number of times and the places where Mr Zabchekov had fallen to the ground when he had been trying to escape and ignored the events that took place at the police station, the moments between the boy's arrest and his arrival at the police station and the times when he had been lying on the ground, handcuffed to a tree or was alone with Sergeant Mutafov (C) and his friend D (see paragraphs 21, 26, 29-40 and 68 above). Furthermore, there is no record of any timely visit of the investigator to the scene of Mr Zabchekov's arrest in Beli Lom Street. The site was visited at about 11 a.m. on 29 January 1996 by a police officer from the same police station as the implicated officers. Finally, the investigation concentrated on the origin and timing of the skull injury and paid scant attention to the other traces left on the boy's body. The Government have not explained these omissions. 143. The Court also refers to its findings above that the testimony of the police officers was considered fully credible despite their suspect behaviour and that, notwithstanding the obvious contradiction between the two medical reports, the authorities accepted the conclusions of the second report without seeking to clarify the discrepancies (see paragraph 120 above). Indeed, the decisions of the prosecution authorities to put an end to the investigation relied exclusively on the opinion in the second medical report about the timing of the injury, an opinion that had been based on a questionable analysis (see paragraphs 79, 81, 84 and 88-90 above). 144. The Court finds, therefore, that the investigation lacked the requisite objectivity and thoroughness, a fact which decisively undermined its ability to establish the cause of Mr Zabchekov's death and the identity of the persons responsible. Its effectiveness cannot, therefore, be gauged on the basis of the number of reports made, witnesses questioned or other investigative measures taken. 145. The applicant alleged, in addition, that the failings of the investigation in her case were the result of a general problem of lack of independence, impartiality and public accountability on the part of the authorities handling investigations of police ill-treatment. In these particular circumstances, having already found that the investigation into the death of the applicant's son was not sufficiently objective and thorough, the Court does not need to rule on these additional aspects of her complaint. 146. The Court finds that there has been a violation of the respondent State's obligation under Article 2 § 1 of the Convention to conduct an effective investigation into the death of Mr Zabchekov. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 147. The applicant complained that her son had been ill-treated before his death. She relied on Article 3 of the Convention, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 148. The parties' submissions are summarised in paragraphs 103-08 above. 149. The Court found above that the Government had not provided a plausible explanation for the injuries to Mr Zabchekov's body. Those injuries were indicative of inhuman treatment beyond the threshold of severity required by Article 3 of the Convention. There has therefore been a violation of that provision. 150. The Court does not deem it necessary to make a separate finding under Article 3 in respect of the deficiencies in the investigation (see Mahmut Kaya v. Turkey, no. 22535/93, § 120, ECHR 2000-III), having already dealt with that question under Article 2 of the Convention (see paragraphs 132-46 above). III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 151. Relying on Article 5 of the Convention, the applicant alleged that the detention of her son during the night of 28 to 29 January 1996 had been unlawful as there had been no lawful detention order and it had not been properly recorded. Article 5 of the Convention, in its relevant parts, provides as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...” 152. The applicant stated that it was absurd to consider – as the Government did – that the statutory 24-hour time-limit for police detention ran from the moment when the arrested person's identity was established. No such rule existed under Bulgarian law. Any detention without a written order was in violation of section 35 of the National Police Act. Furthermore, in the present case the police officers recognised Mr Zabchekov right away and addressed him by name. 153. The Government submitted that at the time he was taken to the police station Mr Zabchekov had not been a “detained person” within the meaning of section 35 of the National Police Act as his identity had not been known. It had been necessary to await his sobering up to allow his identification and decide whether detention was necessary. Therefore, a written order for his detention was not required. Such an order could not be issued in respect of a person whose identity was unknown. The Government further stated that the material legal conditions for a lawful detention had existed in any event: Mr Zabchekov had been apprehended while trying to steal and had been taken to the police station for identification. 154. The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 of the Convention essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. They require in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect the individual against arbitrariness. The Court must moreover ascertain whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein (see, among other authorities, Grauslys v. Lithuania, no. 36743/97, § 39, 10 October 2000). The unacknowledged detention of an individual is a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention and discloses a most grave violation of that provision. The absence of a record of such matters as the date, time and location of detention, the name of the detainee, the reasons for the detention and the name of the person effecting it must be seen as incompatible with the requirement of lawfulness and with the very purpose of Article 5 of the Convention (see Kurt v. Turkey, judgment of 25 May 1998, Reports 1998-III, pp. 1185-86, § 125, and Çakıcı, cited above, §§ 104-05). 155. In the present case it is not disputed that Mr Zabchekov's detention was not based on a written order as required by section 35 of the National Police Act. Contrary to the Government's view, that provision cannot be reasonably interpreted as permitting confinement without a lawful order where there are doubts as to the identity of the detainee: such an interpretation runs contrary to the elementary guarantees of Article 5 of the Convention as it would mean a blanket authorisation for unacknowledged detentions. Furthermore, in the present case the police identified Mr Zabchekov at the very moment of his arrest. It follows that the applicant's detention was unlawful. 156. The applicant stated that, in an effort to conceal the very fact that her son had been detained, the first information to the family about his death had omitted any reference to his confinement (see paragraphs 49 and 61 above). The Court observes that Mr Zabchekov's deprivation of liberty was not recorded initially and that the register at the police station was later forged. The suspect behaviour of the police officers between 3 a.m. and 5 a.m. on 29 January 1996 is another element which may lead to a conclusion that there was an attempt to conceal the fact that the applicant's son had been detained (see paragraphs 30, 32-40 and 41-46 above). As that attempt was in the event unsuccessful, the Court will not deal with the question whether an issue of State responsibility for an unacknowledged detention may arise. 157. The lack of a written order and of a proper record of Mr Zabchekov's detention is sufficient for the Court to find that his confinement for several hours on 29 January 1996 was in breach of domestic law and contrary to the requirements implicit in Article 5 of the Convention for the proper recording of deprivations of liberty. There has, therefore, been a violation of Article 5 § 1 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 158. The applicant complained under Article 13 of the Convention of the alleged lack of an effective remedy in respect of the violations of Articles 2 and 3. Article 13 of the Convention provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 159. The applicant stated that the criminal investigation had not been effective, referring to her complaints under Articles 2 and 3 of the Convention. She added that at the relevant time there had been no judicial remedy against a prosecutor's decision to discontinue criminal proceedings. 160. The Government referred to their submissions under Articles 2 and 3 and stated that the applicant could have applied to join the criminal investigation into her son's death as a private prosecutor or a civil plaintiff. 161. Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant's complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law. Where an arguable breach of one or more of the rights under the Convention is in issue, there should be available to the victim a mechanism for establishing any liability of State officials or bodies for that breach. Furthermore, in appropriate cases, compensation for the pecuniary and non-pecuniary damage flowing from the breach should in principle be available as part of the range of redress (see, as a recent authority, T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, §107, ECHR 2001-V). In cases of suspicious deaths, given the fundamental importance of the right to the protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life, including effective access for the complainant to the investigation procedure (see Kaya, cited above, p. 330, § 107; Ergi, cited above, p. 1782, § 98; Salman, cited above, § 123; and Velikova, cited above, § 89). 162. The Court finds that the applicant had an arguable claim under Articles 2 and 3 of the Convention in respect of her son's death and ill-treatment and that, for the purposes of Article 13, she should accordingly have been able to avail herself of effective and practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation. However, in circumstances where – as here and as in Velikova, cited above – the criminal investigation into the suspicious death was ineffective as it lacked sufficient objectivity and thoroughness (see paragraphs 141-46 above), and the effectiveness of any other remedy that may have existed, including the remedy suggested by the Government (the possibility of the applicant's joining the criminal proceedings as a civil party) was consequently undermined, the Court finds that the State has failed in its obligation under Article 13 of the Convention. There has therefore been a violation of that Article. V. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 163. The applicant complained under Article 14 of the Convention taken in conjunction with Articles 2, 3 and 13 that the police officers' and the investigating authorities' perception of her son as a Rom/Gypsy was a decisive factor in their attitude and acts. Article 14 of the Convention provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 164. The applicant considered it striking that some of the police officers had been unable to refrain from referring to Mr Zabchekov as “the Gypsy”, even in their official statements. She considered that the reference to her son's origin and the acts of the police and the investigation authorities had to be seen against the broader context of systematic racism and hostility which law-enforcement bodies in Bulgaria had repeatedly displayed. This attitude had been widely documented by intergovernmental and human rights organisations. 165. The Government submitted that there was no evidence of any racially motivated act on the part of the authorities. The fact that some statements referred to Mr Zabchekov as “the Gypsy” did not constitute such evidence. 166. The Court reiterates that proof “beyond reasonable doubt” may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see paragraph 111 above and the case-law cited there). The Court must therefore assess all the relevant facts, including any inferences that may be drawn from the general information adduced by the applicant about the alleged existence of discriminatory attitudes. 167. It recalls that in Velikova it examined a very similar complaint in paragraph 94 of that judgment and held: “The Court observes that the applicant's complaint under Article 14 is grounded on a number of serious arguments. It also notes that the respondent State failed to provide a plausible explanation as to the circumstances of Mr Tsonchev's death and as to the reasons why the investigation omitted certain fundamental and indispensable steps which could have shed light on the events ... The Court recalls, however, that the standard of proof required under the Convention is 'proof beyond reasonable doubt'. The material before it does not enable the Court to conclude beyond reasonable doubt that Mr Tsonchev's killing and the lack of a meaningful investigation into it were motivated by racial prejudice, as claimed by the applicant. It follows that no violation of Article 14 has been established.” 168. The Court finds that in the present case the applicant's complaints are likewise based on serious arguments. It is unable, however, to reach the conclusion that proof beyond reasonable doubt has been established. There has therefore been no violation of Article 14 of the Convention. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 169. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 170. The applicant claimed 19,050 euros (EUR) for non-pecuniary damage, a sum comprising EUR 15,250 in respect of the pain and suffering caused by the violation of her son's rights under the Convention and EUR 3,800 in respect of the distress she endured because of the ill-treatment and death of her son and the inadequacy of the authorities' reaction. 171. The Government objected that since Article 362 § 1 (4) of the Bulgarian Code of Criminal Procedure provided for the possibility of reopening criminal proceedings in cases where the European Court of Human Rights had found a violation of the Convention the applicant should, if the Court found a violation in the present case, submit a civil claim for damages once the criminal proceedings were reopened. Alternatively, the Government maintained that the claim was excessive, regard being had to the economic situation in the country. The amount claimed was allegedly 371 times the minimum monthly wage. In the Government's view, the comparison with Turkish cases proposed by the applicant was incorrect as in Turkey the minimum monthly wage was 50% higher than in Bulgaria. Finally, the Government warned against the dangers of excessive awards being made by the Court. 172. The Court notes that the provision of the Code of Criminal Procedure referred to by the Government concerns the reopening of criminal proceedings which were ended by a judicial decision, whereas the investigation in the applicant's case was terminated by a decision of the prosecuting authorities. It is therefore unclear whether the Code of Criminal Procedure requires the reopening of the investigation after the Court's findings in the present case. Furthermore, Article 41 of the Convention does not require applicants to exhaust domestic remedies a second time in order to obtain just satisfaction if they have already done so in vain in respect of their substantive complaints. The wording of that provision – where it refers to the possibility of reparation under domestic law – establishes a rule going to the merits of the just satisfaction issue (see De Wilde, Ooms and Versyp v. Belgium (Article 50), judgment of 10 March 1972, Series A no. 14, pp. 8-9, § 16). In this connection, the Court considers that the hypothetical possibility that the investigation may resume, many years after the death of the applicant's son in police custody and after the first ineffective investigation, and that the applicant may then have the opportunity to bring a civil claim, which would only be successful if the fresh investigation produced results, cannot reasonably be interpreted as restitutio in integrum under domestic law. 173. The Court, having regard to its judgments in similar cases (see Velikova, cited above) and to the fact that the present case concerns the death of a 17-year-old boy in police custody, awards the claim for non-pecuniary damage in full. B. Costs and expenses 174. The applicant claimed 3,800 United States dollars (“USD”) for 95 hours of legal work at an hourly rate of USD 40. She submitted a copy of a contract between her and her lawyer and a time-sheet. 175. The Government considered that the contingency-fee agreement between the applicant and her lawyer was “absurd” and that the rate of USD 40 per hour was excessive and even immoral, as lawyers were under an obligation to help people of limited financial resources. 176. The Court reiterates that only legal costs and expenses which are found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II). It further notes that the Government have not disputed the time-sheet presented by the applicant's lawyer. The Court does not find any indication that the number of hours claimed exceeds the legal work which was actually done and which was necessary to be done for the representation of the applicant. As to the hourly rate of USD 40, it has not been claimed that this is a rate higher than the rates charged, for example, by the leading law firms in Bulgaria. Converting into euros the sum claimed and deducting the amount of EUR 762.25 (5,000 French francs) paid in legal aid by the Council of Europe, the Court awards the applicant EUR 3,500 in respect of costs and expenses. C. Default interest 177. According to the information available to the Court, the statutory rate of interest in Bulgaria applicable to claims expressed in foreign convertible currency at the date of adoption of the present judgment is 13.65% per annum. | The Court held that there had been a violation of Article 2 (right to life) of the Convention in respect of the death of the applicant’s son, in respect of the Bulgarian authorities’ failure to provide timely medical care, and in respect of the Bulgarian State’s obligation to conduct an effective investigation. In particular, it found implausible the Bulgarian Government’s explanation of the applicant’s son’s death and that the investigation had lacked objectivity and thoroughness, a fact which had decisively undermined its ability to establish the cause of the death and those responsible. The Court also held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment), a violation of Article 5 (right to liberty and security) and a violation of Article 13 (right to an effective remedy) of the Convention. Lastly, the Court held that there had been no violation of Article 14 (prohibition of discrimination) of the Convention: the applicant’s complaints that the police officers’ and the investigating authorities’ perception of her son as a Roma/Gypsy had been a decisive factor in their attitude and acts were based on serious arguments; it was unable, however, to reach the conclusion that proof beyond reasonable doubt had been established. |
636 | Journalists and publishing companies | II. RELEVANT DOMESTIC LAW 15. Article 23 of the Civil Code contains a non-exhaustive list of the rights known as “personal rights” ( dobra osobiste ). This provision states : “The personal rights of an individual, such as, in particular, health, liberty, reputation ( cześć ), freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements shall be protected by the civil law regardless of the protection laid down in other legal provisions.” 16. Article 24 of the Civil Code provides for ways of redressing infringements of personal rights. According to that provision, a person facing the danger of an infringement may demand that the prospective perpetrator refrain from the wrongful activity, unless it is not unlawful. Where an infringement has taken place, the person affected may, inter alia, request that the wrongdoer make a relevant statement in an appropriate form, or claim just satisfaction from him/her. If an infringement of a personal right causes financial loss, the person concerned may seek damages. THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 17. The applicants complained of a breach of Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 18. The Government contested that argument. A. Admissibility 19. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Arguments of the parties 20. The applicants submitted that the interference with their right to freedom of expression had not been necessary in a democratic society as it had not been justified by a pressing social need. They maintained that what was at stake in the present case was not purely commercial interests but participation in a general debate. In such cases the existence of particularly strong reasons for restricting the freedom of the press in a democratic society was necessary and the national margin of appreciation was limited. 21. The applicants argued that the cartoon in question had to be examined in the full context in which it had been published. It was one of two cartoons referring to the advertising campaign run by Star Foods and was accompanied by the heading “Polish children shocked by crisps advertisement ... ” and a clear indication that the details could be found in the article on the second page. The applicants stressed that the slogan “ Reksio is a murderer”, on which they had based the cartoon in question, had been only one example – of a mild nature in comparison to others – of highly inappropriate phrases which had been used in the campaign directed at children. Others alluded to sexual behaviour and alcohol drinking or were of a racist and chauvinistic nature. Examples of other slogans included: “I ’ m pretty but not easy (“ Jestem ładna ale nie łatwa ”), “ Where are the panties?” (“ Gdzie są majtki ?”), “You fool! I multiply with ease” ( Ty baranie !, łatwo się rozmnażam !”), “Entertain me” (“ Rozerwij mnie ”), “Stick with me” (“ Przyklej się ”), “I can ’ t on Saturday” (“ W sobote nie mogę ”), “Drink Your Highness” (“ Pij Waść !”), “ Don ’ t drink alone (to the mirror)” (“ Nie pij do lustra ”), “100 years behind Blacks” (“ Sto lat za murzynami ”; meaning to be backward), ”Poles – go farming” (“ Polacy na pole ”), “People to Zoo” (“ Ludzie do Zoo ”). The inappropriateness of such a campaign had been clearly a matter of public interest and the subject had been raised by some newspapers. Thus the applicants had been justified in joining this debate. 22. The applicants submitted that the cartoon had been a satirical commentary on the article and disagreed that it had obviously attacked the good name of the product. They maintained that they had not been interested in criticising the quality of the product. Ultimately, the use of such wording was a consequence of employing a simplified and satirical form of expression as the publication had been addressed to children. Admittedly, they had used provocative and inelegant language and the journalistic form had been exaggerated; nevertheless, the cartoon remained within the limits of acceptable criticism which should be allowed in a democratic society. 23. The applicants also considered that the plaintiff company had not incurred any material damage, and even if the good name of the company had suffered it had been more as a consequence of the ill- considered advertising campaign than their publication. The applicants concluded that the reasons adduced by the domestic authorities had not been relevant or sufficient to show that the resulting judicial decision had been necessary in a democratic society. The domestic courts had failed to achieve a balance between the two interests at stake – that of the freedom of the press and protection of the reputation of the company. 24. The Government admitted that the penalty imposed on the applicants had amounted to an “interference” with their right to freedom of expression. However, they submitted that the interference was “prescribed by law” and pursued a legitimate aim as it was intended to protect the reputation and rights of others. 25. The Government argued that the applicants had overstepped the boundaries of what is protected by Article 10 and breached the plaintiff company ’ s personal rights. The domestic courts ’ reaction was thus legitimate and necessary in a democratic society as they were responding to a “pressing social need” to protect the rights of Star Foods. Moreover, the courts had fairly assessed the relevant facts and ordered a moderate penalty. 26. The Government submitted that while the text published by the applicants concerned the advertising campaign, the cartoon on the front page of the magazine referred exclusively to the product of Star Foods. The applicants, in the cartoon under consideration, had not directed their exaggerated criticism at the advertising campaign but at the product itself clearly stating that crisps produced by Star Foods were “ muck”. They considered that the cartoon sent an obvious message to the readers – children – “that they should keep away from the products referred to in such critical and derogatory language”. The applicants had discredited the potato crisps produced by the company without providing any valid reason for doing so and had failed to provide any factual basis which could support their value judgment regarding the product. 27. The Government concluded that the interference complained of had been proportionate to the legitimate aim pursued and thus necessary in a democratic society to protect the reputation of others. They submitted that there had been no violation of Article 10 of the Convention. 2. The Court ’ s assessment (a) General principles 28. The Court reiterates that freedom of expression, as secured in paragraph 1 of Article 10, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society” (see, among many other authorities, Oberschlick v. Austria (no. 1), judgment of 23 May 1991, Series A no. 204, § 57, and Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999 ‑ VIII ). 29. There is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on questions of public interest (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV). No doubt Article 10 § 2 enables the reputation of others – that is to say, of all individuals – to be protected; but the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues (see Lingens v. Austria, cited above, § 42). 30. The pre-eminent role of the press in a State governed by the rule of law must not be forgotten. Although it must not overstep various bounds set, inter alia, for the prevention of disorder and the protection of the reputation of others, it is nevertheless incumbent on it to impart information and ideas on political questions and on other matters of public interest. Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders (see Castells v. Spain, judgment of 23 April 1992, Series A no. 236, § 43). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria, judgment of 26 April 1995, Series A no. 313, p. 19, § 38). 31. Although freedom of expression may be subject to exceptions they “must be narrowly interpreted” and the necessity for any restrictions “ must be convincingly established” (see the above-mentioned Observer and Guardian judgment, p. 30, § 59). Admittedly, it is in the first place for the national authorities to assess whether there is a “pressing social need” for the restriction and, in making their assessment, they enjoy a certain margin of appreciation. In cases concerning the press, the national margin of appreciation is circumscribed by the interest of democratic society in ensuring and maintaining a free press. Similarly, that interest will weigh heavily in the balance in determining, as must be done under paragraph 2 of Article 10, whether the restriction was proportionate to the legitimate aim pursued (see Worm v. Austria, judgment of 29 August 1997, Reports 1997 ‑ V, p. 1551, § 47, and Feldek v. Slovakia, no. 29032/95, § 78, ECHR 2001 ‑ VIII ). 32. One factor of particular importance is the distinction between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. A requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10. However, even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment may be excessive where there is no factual basis to support it (see Turhan v. Turkey, no. 48176/99, § 24, 19 May 2005, and Jerusalem v. Austria, no. 26958/95, § 43, ECHR 2001-II). 33. The Court ’ s task in exercising its supervisory function is not to take the place of the national authorities but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation. In so doing, the Court must look at the “interference” complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are “ relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see Vogt v. Germany, judgment of 26 September 1995, Series A no. 323, pp. 25-26, § 52, and Jerusalem v. Austria, cited above, § 33). (b) Application of the general principles to the present case 34. The Court notes that it is undisputed that the civil proceedings against the applicants amounted to an “interference” with the exercise of their right to freedom of expression. The Court also finds, and the parties agreed on this point, that the interference complained of was prescribed by law, namely Articles 23 and 24 of the Civil Code, and was intended to pursue a legitimate aim referred to in Article 10 § 2 of the Convention, namely to protect “the reputation or rights of others”. Thus the only point at issue is whether the interference was “necessary in a democratic society” to achieve such aims. 35. At the outset the Court notes that the plaintiff in the present case was a private company which has a right to defend itself against defamatory allegations. In addition to the public interest in open debate about business practices, there is a competing interest in protecting the commercial success and viability of companies, for the benefit of shareholders and employees, but also for the wider economic good. The State therefore enjoys a margin of appreciation as to the means it provides under domestic law to enable a company to challenge the truth, and limit the damage, of allegations which risk harming its reputation (see Steel and Morris v. the United Kingdom, no. 68416/01, § 94, ECHR 2005 -II ). 36. However, the Court considers that the facts of the case differ substantially from the Steel and Morris case cited above, which concerned serious defamatory allegations against McDonalds. The applicants in the instant case had published in a magazine addressed to children two cartoons accompanied by an article about an advertising campaign launched by the company producing crisps. The domestic courts found that they had breached the company ’ s personal rights by employing in one of the cartoons the word “muck” which had been considered as aimed at discrediting, without justification, the product of Star Foods. 37. The Court firstly notes that, in the domestic proceedings, and in their submissions before the Court, the applicants argued that the publication had contributed to a public debate on the question of the ill- considered and harmful advertising campaign conducted by Star Foods. The Court considers that the domestic courts did not give sufficient attention to the applicants ’ argument that the satirical cartoon had been a riposte to, in the applicants ’ view, an unacceptable advertising campaign conducted by Star Foods and targeted at young children. The campaign used slogans referring not only to the Reksio character, but also to sexual and cultural behaviour, in a manner scarcely appropriate for children – the intended market segment. This clearly raises issues which are of interest and importance for the public. The applicants ’ publication therefore concerned a sphere in which restrictions on freedom of expression are to be strictly construed. Accordingly, the Court must exercise caution when the measures taken by the national authorities are such as to dissuade the press from taking part in the discussion of matters of public interest (see Standard Verlags GmbH v. Austria, no. 13071/03, § 49, 2 November 2006 ). 38. Secondly, the Court considers that the subject of the instant case is not a defamatory statement of fact but a value judgment – as submitted by the Government. Moreover, the publication in question constituted a satirical denouncement of the company and its advertising campaign in the form of a cartoon. The Court observes that the cartoon in question was accompanied by a large heading referring to “a shocking advertising campaign” and an article on the second page reporting on the Star Foods campaign. The cartoon itself had been obviously inspired by the company ’ s advertising campaign as it used the Reksio character and the slogan which was to be found in the packets of crisps. Taking the above facts into account the Court finds that the applicants ’ aim was not primarily to denigrate in the minds of readers the quality of the crisps but to raise awareness of the type of slogans used by the plaintiff company and the unacceptability of such tactics to generate sales. 39. The Court finally considers that the domestic courts failed to have regard to the fact that the press had a duty to impart information and ideas on matters of public interest and in so doing to have possible recourse to a degree of exaggeration or even provocation, or in other words to make somewhat immoderate statements (see Mamère v. France, no. 12697/03, § 25, ECHR 2006-..., and Dąbrowski v. Poland, no. 18235/02, § 35, 19 December 2006 ). The wording employed by the applicants had been exaggerated; however, they were reacting to slogans used in the plaintiff ’ s advertising campaign which also displayed a lack of sensitivity and understanding for the age and vulnerability of the intended consumers of their product, namely children. The Court thus considers that the style of the applicants ’ expression was motivated by the type of slogans to which they were reacting and, taking into account its context, did not overstep the boundaries permissible to a free press. In sum, the Court is of the opinion that the reasons adduced by the domestic courts cannot be regarded as relevant and sufficient to justify the interference at issue. 40. Regard being had to the above considerations and in particular to the interest of a democratic society in ensuring and maintaining the freedom of the press on subjects of public interest, the Court concludes that the authorities ’ reaction towards the applicants ’ satirical cartoon was disproportionate to the legitimate aim pursued and, accordingly, was not “necessary in a democratic society” “for the protection of the rights of others”. There has accordingly been a violation of Article 10 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 41. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 42. The first applicant claimed 24,000 Polish zlotys (PLN), equivalent to 7,200 euros (EUR) at the date on which the claims were submitted, in respect of pecuniary damage. This sum represented PLN 2,500 and PLN 11,500 paid by the applicants to the plaintiff as reimbursement of the costs of the proceedings and PLN 10,000 paid to a charity - as ordered by the domestic courts. The first applicant further claimed interest due on this amount. As regards non-pecuniary damage, the first applicant claimed EUR 10,000 as compensation for damage caused to his good name as a reliable publisher given the publicly made allegations that he lacked professionalism and diligence. 43. The Government submitted that the final judgment in this case was delivered on 21 March 2001 and the State could not be held responsible for paying interest during a subsequent period of examination of the case by the Court. With regard to non-pecuniary damage, the Government argued that the sum claimed by the applicant was excessive. They invited the Court to rule that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. 44. The Court finds that in the circumstances of the case there is a causal link between the violation found and the alleged pecuniary damage as the first applicant referred to the amount which he was ordered to pay by the domestic courts (see Busuioc v. Moldova, no. 61513/00, § 101, 21 December 2004 and Kulis, cited above, § 59 ). The Court awards the first applicant the sum claimed in full, that is EUR 7 ,200. 45. The Court also accepts that the first applicant also suffered non ‑ pecuniary damage which is not sufficiently compensated by the finding of a violation of the Convention. Making its assessment on an equitable basis, the Court awards the first applicant EUR 3 ,000 under this head. B. Costs and expenses 46. The first applicant also claimed PLN 6,270, equivalent to EUR 1,900, for the costs and expenses incurred before the domestic courts which included PLN 1,400 for court fees at the cassation stage and PLN 4,870 for the legal representation of the applicants before the domestic courts. He further claimed PLN 14,000, equivalent to EUR 4,200, for the costs of their representation before the Court. 47. The Government submitted that the costs and expenses should be awarded only in so far as they had been necessarily incurred and in a reasonable amount. 48. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, the Court notes that the applicant sufficiently substantiated that these sums had been actually and necessarily incurred by submitting relevant invoices and other evidence. Regard being had to the information in its possession and the above criteria, the Court allows the first applicant ’ s claim in full and awards him the sum of EUR 6,100 covering costs under all heads. C. Default interest 49. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that the reasons adduced by the Polish courts could not be regarded as relevant and sufficient to justify the interference, which had been disproportionate to the legitimate aim pursued, namely the protection of the reputation or rights of others. It noted in particular that the applicants’ primary aim had not been to denigrate the quality of the crisps but to raise awareness of the type of slogans used by the manufacturer and the unacceptability of such tactics to generate sales. Moreover, in performing its duty to impart information and ideas on matters of public interest, the press was entitled to have recourse to a degree of exaggeration or even provocation. While the wording employed by the applicants had been exaggerated, this had only been in reaction to an advertising campaign which had displayed a lack of sensitivity and understanding for the age and vulnerability of children. The style of the applicants’ expression had thus been motivated by the type of slogans to which they were reacting and, in the context, had not overstepped the boundaries permissible to a free press. |
67 | Filiation | II. Relevant domestic law and practice A. Definition of gender in domestic law 20. English law defines a person ’ s sex by reference to biological criteria at birth and does not recognise that it can be changed by gender reassignment surgery (Corbett v. Corbett [1971] Probate Reports 83 and R. v. Tan [1983] Queen ’ s Bench Reports 1053 (Court of Appeal)). As a result of this principle, a female-to-male transsexual is not permitted to marry a woman and cannot be regarded as the father of a child. B. Children conceived by artificial insemination 21. The Human Fertility and Embryology Act 1990 ("the 1990 Act") provides, inter alia, that where an unmarried woman gives birth as a result of AID with the involvement of her male partner, the latter, rather than the donor of the sperm, shall be treated for legal purposes as the father of the child (section 28 (3)). C. Registration of births 22. Section 1 (1) of the Births and Deaths Registration Act 1953 ("the 1953 Act") requires that certain prescribed details concerning the birth of every child born in England and Wales, including the names of the parents, be entered in a register. The Registrar General is the official ultimately responsible for the administration of this scheme. 23. If the child ’ s father (or the person regarded by law as the father - see paragraph 21 above) is not married to the mother, his name shall not automatically be entered on the register in the space provided for the father. However, it will be entered if he and the mother jointly request that this be done (section 10 of the 1953 Act, as amended by the Family Law Reform Act 1987). 24. A birth certificate takes the form either of an authenticated copy of the entry in the register of births or an extract from it. A certificate of the latter kind, known as a "short certificate of birth", is in a prescribed form and contains such particulars as are prescribed by regulations made under the 1953 Act. These particulars are the name, surname, sex and date and place of birth of the individual concerned. Under English law, a child may be given any first name or surname as the parents see fit, and may change his or her name or surname at any time, without restriction. D. Parental responsibility 25. "Parental responsibility" in respect of a child automatically vests in the mother and, where she is married, in her husband. It may, additionally, be granted to certain other persons (see paragraphs 26-27 below). "Parental responsibility" means all the rights, duties, powers, responsibility and authority which by law a parent of a child has in relation to the child and his or her property (section 3 of the Children Act 1989 - "the 1989 Act"). It does not, without more, confer on the child any rights in the property of the person granted parental responsibility, such as the right to inherit on intestacy or to financial support. Similarly, it does not entitle the child to benefit through that person from the transmission of tenancies pursuant to certain statutory provisions, from nationality and immigration measures or from rights accruing from that person ’ s citizenship in the European Union. 26. The father of a child who was not married to the mother at the time of the birth may apply for a court order granting him parental responsibility or may attain it by virtue of an agreement, in a prescribed form, with the mother (section 4 of the 1989 Act). 27. Parental responsibility cannot vest in any other person, unless a "residence order" in respect of the child is made in his or her favour. A residence order is "an order settling the arrangements to be made as to the person with whom the child is to live" (section 8 of the 1989 Act). Any person may apply for such an order (although individuals outside certain defined categories must first seek the leave of the court in order to apply). Where the court makes a residence order in respect of any person who is not the parent or guardian of the child, that person is automatically vested with parental responsibility for the child as long as the residence order remains in force (section 12 (2) of the 1989 Act). 28. Thus, although the first applicant could not apply directly for parental responsibility of the third applicant, he could apply with the second applicant for a joint residence order which would have the effect of giving him parental responsibility while it remained in force. On 24 June 1994, Mr Justice Douglas-Brown in the Manchester High Court made a joint residence order in favour of two cohabiting lesbian women in respect of the child of one of them (unreported). PROCEEDINGS BEFORE THE COMMISSION 29. In their application to the Commission of 6 May 1993 (no. 21830/93) as declared admissible, the applicants complained that, contrary to Article 8 of the Convention (art. 8), they were denied respect for their family and private life as a result of the lack of recognition of the first applicant ’ s role as father to the third applicant and that the resulting situation in which they were placed was discriminatory, in violation of Articles 8 and 14 taken together (art. 14+8). 30. On 1 December 1994, the Commission declared admissible the complaints under Articles 8 and 14 of the Convention (art. 8, art. 14), and declared inadmissible complaints under Articles 12 and 13 (art. 12, art. 13). In its report of 27 June 1995 (Article 31) (art. 31), it expressed the opinion that there had been a violation of Article 8 of the Convention (art. 8) (thirteen votes to five) and that it was not necessary to examine whether there had been a violation of Article 14 in conjunction with Article 8 (art. 14+8) (seventeen votes to one). The full text of the Commission ’ s opinion and of the five separate opinions contained in the report are reproduced as an annex to this judgment [3]. FINAL SUBMISSIONS TO THE COURT 31. At the hearing on 27 August 1996 the Government, as they had done in their memorial, asked the Court to hold that there had been no violation of Articles 8 or 14 of the Convention (art. 8, art. 14). On the same occasion, the applicants requested the Court to reach a finding of violation and to award them just satisfaction under Article 50 (art. 50). AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ( art. 8) 32. The applicants, with whom the Commission agreed, submitted that the lack of legal recognition of the relationship between X and Z amounted to a violation of Article 8 of the Convention (art. 8), which provides: "1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." The Government denied that Article 8 (art. 8) was applicable and, in the alternative, claimed that there had been no violation. A. The existence of "family life" 33. The applicants submitted that they had shared a "family life" within the meaning of Article 8 (art. 8) since Z ’ s birth. They emphasised that, according to the jurisprudence of the Commission and the Court, social reality, rather than formal legal status, was decisive. Thus, it was important to note that X had irrevocably changed many of his physical characteristics and provided financial and emotional support to Y and Z. To all appearances, the applicants lived as a traditional family. 34. The Government did not accept that the concept of "family life" applied to the relationships between X and Y or X and Z. They reasoned that X and Y had to be treated as two women living together, because X was still regarded as female under domestic law and a complete change of sex was not medically possible. Case-law of the Commission indicated that a "family" could not be based on two unrelated persons of the same sex, including a lesbian couple (see the Commission ’ s decisions on admissibility in X and Y v. the United Kingdom, application no. 9369/81, Decisions and Reports 32, p. 220, and Kerkhoven and Others v. the Netherlands, application no. 15666/89). Nor could X be said to enjoy "family life" with Z since he was not related to the child by blood, marriage or adoption. At the hearing before the Court, counsel for the Government accepted that if X and Y applied for and were granted a joint residence order in respect of Z (see paragraph 27 above), it would be difficult to maintain that there was no "family life" for the purposes of Article 8 (art. 8). 35. The Commission considered that the relationship between X and Y could not be equated with that of a lesbian couple, since X was living in society as a man, having undergone gender reassignment surgery. Aside from the fact that X was registered at birth as a woman and was therefore under a legal incapacity to marry Y or be registered as Z ’ s father, the applicants ’ situation was indistinguishable from the traditional notion of "family life". 36. The Court recalls that the notion of "family life" in Article 8 (art. 8) is not confined solely to families based on marriage and may encompass other de facto relationships (see the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 14, para. 31; the Keegan v. Ireland judgment of 26 May 1994, Series A no. 290, p. 17, para. 44; and the Kroon and Others v. the Netherlands judgment of 27 October 1994, Series A no. 297-C, pp. 55-56, para. 30). When deciding whether a relationship can be said to amount to "family life", a number of factors may be relevant, including whether the couple live together, the length of their relationship and whether they have demonstrated their commitment to each other by having children together or by any other means (see, for example, the above-mentioned Kroon and Others judgment, loc. cit.). 37. In the present case, the Court notes that X is a transsexual who has undergone gender reassignment surgery. He has lived with Y, to all appearances as her male partner, since 1979. The couple applied jointly for, and were granted, treatment by AID to allow Y to have a child. X was involved throughout that process and has acted as Z ’ s "father" in every respect since the birth (see paragraphs 14-16 above). In these circumstances, the Court considers that de facto family ties link the three applicants. It follows that Article 8 is applicable (art. 8). B. Compliance with Article 8 (art. 8) 1. The arguments as to the applicable general principles 38. The applicants pointed out that the Court had recognised in its Rees v. the United Kingdom judgment (17 October 1986, Series A no. 106, p. 19, para. 47), that the need for appropriate legal measures affecting transsexuals should be kept under review having regard in particular to scientific and societal developments. They maintained that there had been significant development since that decision: in particular, the European Parliament and the Parliamentary Assembly of the Council of Europe had called for comprehensive recognition of transsexual identity (Resolution OJ 1989 C256 and Recommendation 1117 of 29 September 1989 respectively); the Court of Justice of the European Communities had decided that the dismissal of a transsexual for a reason related to gender reassignment amounted to discrimination contrary to Community Directive 76/207 (P. v. S. and Cornwall County Council, C-13/94, 30 April 1996); and scientific research had been published which suggested that transsexuality was not merely a psychological disorder, but had a physiological basis in the structure of the brain (see, for example, "Biological Aspects of Transsexualism" by Professor L.J.G. Gooren, Council of Europe document no. CJ-DE/XXIII (93) 5, and Zhou, Hofman, Gooren and Swaab, "A sex difference in the human brain and its relation to transsexuality ", Nature, 2 November 1995, vol. 378, p. 68). These developments made it appropriate for the Court to re-examine the principles underlying its decisions in the above-mentioned Rees case and in Cossey v. the United Kingdom (27 September 1990, Series A no. 184), in so far as they had an impact on the present problem. The Court should now hold that the notion of respect for family and/or private life required States to recognise the present sexual identity of post-operative transsexuals for legal purposes, including parental rights. However, they also emphasised that the issue in their case was very different from that in Rees and Cossey, since X was not seeking to amend his own birth certificate but rather to be named in Z ’ s birth certificate as her father. They submitted that the margin of appreciation afforded to the respondent State should be narrower in such a case and the need for positive action to ensure respect much stronger, having regard to the interests of the child in having her social father recognised as such by law. 39. The Government contended that Contracting States enjoyed a wide margin of appreciation in relation to the complex issues raised by transsexuality, in view of the lack of a uniform approach to the problem and the transitional state of the law. They denied that there had been any significant change in the scientific or legal position with regard to transsexuals: despite recent research, there still remained uncertainty as to the essential nature of the condition and there was not yet any sufficiently broad consensus between the member States of the Council of Europe (see, for example, the Report of the Proceedings of the XXIIIrd Colloquy on European Law, Transsexualism, Medicine and the Law, Council of Europe, 1993, and S.M. Breedlove, "Another Important Organ", Nature, 2 November 1995, vol. 378, p. 15). The judgment of the Court of Justice of the European Communities in P. v. S. and Cornwall County Council (cited at paragraph 38 above) did not assist the applicants because it was not concerned with the extent to which a State was obliged to recognise a person ’ s change of sex for legal purposes. Like the applicants, the Government stressed that the present case was not merely concerned with transsexuality. Since it also raised difficult and novel questions relating to the treatment of children born by AID, the State should enjoy a very broad margin of appreciation. 40. The Commission referred to a clear trend within the Contracting States towards the legal recognition of gender reassignment. It took the view that, in the case of a transsexual who had undergone gender reassignment surgery in the Contracting State and who lived there as part of a family relationship, there had to be a presumption in favour of legal recognition of that relationship, the denial of which required special justification. 2. The Court ’ s general approach 41. The Court reiterates that, although the essential object of Article 8 (art. 8) is to protect the individual against arbitrary interferences by the public authorities, there may in addition be positive obligations inherent in an effective respect for private or family life. The boundaries between the State ’ s positive and negative obligations under this provision (art. 8) do not always lend themselves to precise definition; nonetheless, the applicable principles are similar. In both contexts, regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, and in both cases the State enjoys a certain margin of appreciation (see, for example, the above-mentioned Rees judgment, p. 14, para. 35, and the above-mentioned Kroon and Others judgment, p. 56, para. 31). 42. The present case is distinguishable from the previous cases concerning transsexuals which have been brought before the Court (see the above-mentioned Rees judgment, the above-mentioned Cossey judgment and the B. v. France judgment of 25 March 1992, Series A no. 232-C), because here the applicants ’ complaint is not that the domestic law makes no provision for the recognition of the transsexual ’ s change of identity, but rather that it is not possible for such a person to be registered as the father of a child; indeed, it is for this reason that the Court is examining this case in relation to family, rather than private, life (see paragraph 37 above). 43. It is true that the Court has held in the past that where the existence of a family tie with a child has been established, the State must act in a manner calculated to enable that tie to be developed and legal safeguards must be established that render possible, from the moment of birth or as soon as practicable thereafter, the child ’ s integration in his family (see for example the above-mentioned Marckx judgment, p. 15, para. 31; the Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, p. 29, para. 72; the above-mentioned Keegan judgment, p. 19, para. 50; and the above-mentioned Kroon and Others judgment, p. 56, para. 32). However, hitherto in this context it has been called upon to consider only family ties existing between biological parents and their offspring. The present case raises different issues, since Z was conceived by AID and is not related, in the biological sense, to X, who is a transsexual. 44. The Court observes that there is no common European standard with regard to the granting of parental rights to transsexuals. In addition, it has not been established before the Court that there exists any generally shared approach amongst the High Contracting Parties with regard to the manner in which the social relationship between a child conceived by AID and the person who performs the role of father should be reflected in law. Indeed, according to the information available to the Court, although the technology of medically assisted procreation has been available in Europe for several decades, many of the issues to which it gives rise, particularly with regard to the question of filiation, remain the subject of debate. For example, there is no consensus amongst the member States of the Council of Europe on the question whether the interests of a child conceived in such a way are best served by preserving the anonymity of the donor of the sperm or whether the child should have the right to know the donor ’ s identity. Since the issues in the case, therefore, touch on areas where there is little common ground amongst the member States of the Council of Europe and, generally speaking, the law appears to be in a transitional stage, the respondent State must be afforded a wide margin of appreciation (see, mutatis mutandis, the above mentioned Rees judgment, p. 15, para. 37, and the above-mentioned Cossey judgment, p. 16, para. 40). 3. Whether a fair balance was struck in the instant case 45. The applicants, with whom the Commission agreed, argued that a number of consequences flowed from the lack of legal recognition of X ’ s role as father. Perhaps most importantly, the child ’ s sense of security within the family might be undermined. Furthermore, the absence of X ’ s name on her birth certificate might cause distress on those occasions when a full-length certificate had to be produced, for example on registration with a doctor or school, if an insurance policy was taken out on her life or when she applied for a passport. Although Z was a British citizen by birth and could trace connection through her mother in immigration and nationality matters, problems could still arise if X sought to work abroad. For example, he had already had to turn down an offer of employment in Botswana because he had been informed that Y and Z would not have been recognised as his "dependants" and would not, therefore, have been entitled to receive certain benefits (see paragraph 19 above). Moreover, in contrast to the position where a parent-child relationship was recognised by law, Z could not inherit from X on intestacy or succeed to certain tenancies on X ’ s death. The possibility of X obtaining a residence order in respect of Z (see paragraph 27 above) did not satisfy the requirement of respect, since this would entail the incurring of legal expense and an investigation by a court welfare officer which might distress the child. In their submission, it was apparent that the legal recognition sought would not interfere with the rights of others or require any fundamental reorganisation of the United Kingdom system of registration of births, since the Human Fertility and Embryology Act 1990 allowed a man who was not a transsexual to be registered as the father of a child born to his female partner by AID (see paragraph 21 above). 46. The Government pointed out that the applicants were not restrained in any way from living together as a "family" and they asserted that the concerns expressed by them were highly theoretical. Furthermore, X and Y could jointly apply for a residence order, conferring on them parental rights and duties in relation to Z (see paragraph 27 above). 47. First, the Court observes that the community as a whole has an interest in maintaining a coherent system of family law which places the best interests of the child at the forefront. In this respect, the Court notes that, whilst it has not been suggested that the amendment to the law sought by the applicants would be harmful to the interests of Z or of children conceived by AID in general, it is not clear that it would necessarily be to the advantage of such children. In these circumstances, the Court considers that the State may justifiably be cautious in changing the law, since it is possible that the amendment sought might have undesirable or unforeseen ramifications for children in Z ’ s position. Furthermore, such an amendment might have implications in other areas of family law. For example, the law might be open to criticism on the ground of inconsistency if a female-to-male transsexual were granted the possibility of becoming a "father" in law while still being treated for other legal purposes as female and capable of contracting marriage to a man. 48. Against these general interests, the Court must weigh the disadvantages suffered by the applicants as a result of the refusal to recognise X in law as Z ’ s "father". The applicants identify a number of legal consequences flowing from this lack of recognition (see paragraph 45 above). For example, they point to the fact that if X were to die intestate, Z would have no automatic right of inheritance. The Court notes, however, that the problem could be solved in practice if X were to make a will. No evidence has been adduced to show that X is the beneficiary of any transmissible tenancies of the type referred to; similarly, since Z is a British citizen by birth and can trace connection through her mother in immigration and nationality matters, she will not be disadvantaged in this respect by the lack of a legal relationship with X. The Court considers, therefore, that these legal consequences would be unlikely to cause undue hardship given the facts of the present case. 49. In addition, the applicants claimed that Z might suffer various social or developmental difficulties. Thus, it was argued that she would be caused distress on those occasions when it was necessary to produce her birth certificate. In relation to the absence of X ’ s name on the birth certificate, the Court notes, first, that unless X and Y choose to make such information public, neither the child nor any third party will know that this absence is a consequence of the fact that X was born female. It follows that the applicants are in a similar position to any other family where, for whatever reason, the person who performs the role of the child ’ s "father" is not registered as such. The Court does not find it established that any particular stigma still attaches to children or families in such circumstances. Secondly, the Court recalls that in the United Kingdom a birth certificate is not in common use for administrative or identification purposes and that there are few occasions when it is necessary to produce a full length certificate (see paragraph 24 above). 50. The applicants were also concerned, more generally, that Z ’ s sense of personal identity and security within her family would be affected by the lack of legal recognition of X as father. In this respect, the Court notes that X is not prevented in any way from acting as Z ’ s father in the social sense. Thus, for example, he lives with her, providing emotional and financial support to her and Y, and he is free to describe himself to her and others as her "father" and to give her his surname (see paragraph 24 above). Furthermore, together with Y, he could apply for a joint residence order in respect of Z, which would automatically confer on them full parental responsibility for her in English law (see paragraph 27 above). 51. It is impossible to predict the extent to which the absence of a legal connection between X and Z will affect the latter ’ s development. As previously mentioned, at the present time there is uncertainty with regard to how the interests of children in Z ’ s position can best be protected (see paragraph 44 above) and the Court should not adopt or impose any single viewpoint. 52. In conclusion, given that transsexuality raises complex scientific, legal, moral and social issues, in respect of which there is no generally shared approach among the Contracting States, the Court is of the opinion that Article 8 (art. 8) cannot, in this context, be taken to imply an obligation for the respondent State formally to recognise as the father of a child a person who is not the biological father. That being so, the fact that the law of the United Kingdom does not allow special legal recognition of the relationship between X and Z does not amount to a failure to respect family life within the meaning of that provision (art. 8). It follows that there has been no violation of Article 8 of the Convention (art. 8). II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8 (art. 14+8) 53. In addition, the applicants complained of discrimination contrary to Article 14 of the Convention (art. 14), which provides: "The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." 54. The applicants did not develop this complaint in their memorial, since they adopted the findings of the Commission (see paragraph 55 below). However, at the hearing before the Court, their counsel referred in particular to the fact that had X been born a man he could have been registered as Z ’ s father under the provisions of the Human Fertility and Embryology Act 1990 (see paragraph 21 above). 55. The Government submitted that no separate issue arose in connection with Article 14 (art. 14). In view of its finding of a violation of Article 8 of the Convention (art. 8), the Commission did not find it necessary to examine this complaint. 56. The Court considers that the complaint under Article 14 (art. 14) is tantamount to a restatement of the complaint under Article 8 (art. 8), and raises no separate issue. In view of its finding in respect of the latter provision (art. 8) (see paragraph 52 above), there is no need to examine the issue again in the context of Article 14 (art. 14). Accordingly, it is not necessary to consider this complaint. | The Court, considering that de facto family ties linked the three applicants, held that Article 8 (right to respect for private and family life) of the Convention was applicable in this case. It further found that, in the present case, there had been no violation of Article 8 of the Convention: given that transsexuality raised complex scientific, legal, moral and social issues, in respect of which there was no generally shared approach among the Contracting States, the Court was of the opinion that Article 8 could not, in this context, be taken to imply an obligation for the respondent State formally to recognise as the father of a child a person who is not the biological father. That being so, the fact that the law of the United Kingdom does not allow special legal recognition of the relationship between X and Z did not amount to a failure to respect family life within the meaning of that provision. |
915 | Tribunal established by law | RELEVANT LEGAL FRAMEWORK AND PRACTICE DOMESTIC LAW AND PRACTICEDomestic lawConstitutional provisions Domestic lawConstitutional provisions Constitutional provisions Domestic lawConstitutional provisions Constitutional provisions Constitutional provisions (a) Constitutional provisions prior to the Constitution of 1997 64. The proposal to establish the NCJ was one of the results of “the round table” negotiations between the communist regime and the democratic opposition in 1989. 65. The Act of 7 April 1989 amending the 1952 Constitution of the Polish People’s Republic established the NCJ. In accordance with Article 60 § 1 of the amended 1952 Constitution, judges were to be appointed by the President on the motion of the National Council of the Judiciary. The competences and the composition of the NCJ were to be regulated by statute (Article 60 § 3). The Constitutional Act of 17 October 1992 retained the rule that judges were to be appointed by the President on the motion of the NCJ (Article 42). (b) The Constitution of the Republic of Poland of 1997 66. The Constitution of the Republic of Poland was adopted by the National Assembly on 2 April 1997 and ratified in a referendum on 25 May 1997. It entered into force on 17 October 1997. The relevant provisions of the Constitution read as follows: Article 2 “The Republic of Poland shall be a democratic State governed by the rule of law and implementing the principles of social justice.” Article 7 “The organs of public authority shall function on the basis of, and within the limits of, the law.” Article 8 “1. The Constitution shall be the supreme law of the Republic of Poland. 2. The provisions of the Constitution shall apply directly, unless the Constitution provides otherwise.” Article 10 “1. The system of government of the Republic of Poland shall be based on the separation of and balance between the legislative, executive and judicial powers. 2. Legislative power shall be vested in the Sejm and the Senate, executive power shall be vested in the President of the Republic of Poland and the Council of Ministers, and judicial power shall be vested in courts and tribunals.” Article 60 “Polish citizens enjoying full public rights shall have a right of access to public service based on the principle of equality.” Article 91 “1. After promulgation thereof in the Journal of Laws of the Republic of Poland, a ratified international agreement shall constitute part of the domestic legal order and shall be applied directly, unless its application depends on the enactment of a statute. 2. An international agreement ratified upon prior consent granted by statute shall take precedence over statutes if such an agreement cannot be reconciled with the provisions of such statutes. 3. If an agreement, ratified by the Republic of Poland, establishing an international organisation so provides, the laws established by it shall be applied directly and take precedence in the event of a conflict of laws.” Article 173 “The courts and tribunals shall constitute a separate power and shall be independent of other branches of power.” Article 178 § 1 “Judges, within the exercise of their office, shall be independent and subject only to the Constitution and statutes.” Article 179 “Judges shall be appointed for an indefinite period by the President of the Republic on the motion of the National Council of the Judiciary.” Article 186 “1. The National Council of the Judiciary shall safeguard the independence of courts and judges. 2. The National Council of the Judiciary may make application to the Constitutional Court regarding the conformity with the Constitution of normative acts to the extent to which they relate to the independence of courts and judges.” Article 187 “1. The National Council of the Judiciary shall be composed as follows: (1) the First President of the Supreme Court, the Minister of Justice, the President of the Supreme Administrative Court and an individual appointed by the President of the Republic; (2) fifteen judges elected from among the judges of the Supreme Court, ordinary courts, administrative courts and military courts; (3) four members elected by the Sejm from among its deputies and two members elected by the Senate from among its senators. 2. The National Council of the Judiciary shall elect, from among its members, a chairperson and two deputy chairpersons. 3. The term of office of those elected as members of the National Council of the Judiciary shall be four years. 4. The organisational structure, the scope of activity and working procedures of the National Council of the Judiciary, as well as the manner of electing its members, shall be specified by statute.” Article 238 § 1 “The term of office of constitutional organs of public authority and the individuals composing them, whether elected or appointed before the entry into force of the Constitution, shall end with the completion of the period specified in provisions valid before the day on which the Constitution comes into force.” The previous Acts on the National Council of the Judiciary 67. The first Act on the NCJ was enacted on 20 December 1989. The second Act on the NCJ was enacted on 27 July 2001. Those two Acts provided that the judicial members of the Council were to be elected by the relevant assemblies of judges, at different levels and from different types of court. The 2001 Act on the NCJ expressly stated that judicial members of the NCJ were to be elected for the term of office. The Act of 12 May 2011 on the National Council of the Judiciary ( Ustawa o Krajowej Radzie Sądownictwa; – “the 2011 Act on the NCJ”) 68. The relevant provisions of the 2011 Act on the NCJ, as in force until 17 January 2018, read as follows: Section 3 “1. The competences of the Council include: (1) examination and evaluation of candidates for posts of Supreme Court judges and posts of judges in ordinary courts, administrative courts and military courts as well as posts of junior judges in administrative courts; (2) submitting to the President of the Republic of Poland applications for appointment of judges in the Supreme Court, ordinary courts, administrative courts and military courts, and the appointment of junior judges in administrative courts; ... (3) adopting rules of professional ethics of judges and junior judges and ensuring their observance; (4) expressing opinions on the condition of the judicial staff; (5) expressing opinions on matters relating to the judiciary, judges and junior judges submitted to it by the President of the Republic of Poland, other public authorities or bodies of judicial self-government; (6) issuing opinions on draft normative acts concerning the judiciary, judges and junior judges as well as presenting motions in this regard; ... 2 In addition, the Council performs other tasks specified in statutes, in particular: (1) adopts resolutions on applications to the Constitutional Court to review the conformity to the Constitution of normative acts to the extent to which they relate to the independence of courts and judges; (2) considers applications to retire a judge; (3) considers requests of retired judges to return to a judicial post; (4) elects a disciplinary representative for ordinary court judges and junior judges and a disciplinary representative for military court judges; (5) expresses an opinion on the dismissal of a president or vice-president of the ordinary court and a president or vice-president of the military court; ...” Section 11 “1. The general assembly of judges of the Supreme Court elects two members of the Council from among the judges of that court. 2. The general assembly of judges of the Supreme Administrative Court, together with the representatives of general assemblies of regional administrative courts, elects two members of the Council from among the judges of the administrative courts. 3. The meeting of representatives of general assemblies of judges of courts of appeal elects two members of the Council from among judges of the courts of appeal. 4. The meeting of representatives of general assemblies of regional court judges elects eight members of the Council from among their number. 5. The assembly of judges of military courts elects one member of the Council from among its body.” Section 12 “1. General assemblies of judges of regional administrative courts elect two representatives from among their members. 2. Representatives of general assemblies of judges of regional administrative courts are elected at the latest one month before the expiry of the term of office of the Council members, elected from among the judges of the administrative courts. The representatives are elected for a period of four years.” Section 13 “1. General assemblies of judges of courts of appeal elect representatives of general assemblies of judges of courts of appeal from among judges of the courts of appeal in the proportion of one fifth of the number of those judges. 2. General assemblies of regional court judges elect representatives of the general assemblies of regional court judges from among their members in the proportion of one fiftieth of the number of regional court judges. 3. The election of representatives referred to in §§ 1-2 shall be carried out at the latest one month before the expiry of the term of office of the members of the Council, elected from among the judge of ordinary courts. The representatives are elected for a period of four years. ...” Section 14 “1. The service of an elected member of the Council expires before the end of the term of office in the event of: (1) death; (2) resignation from office; (3) expiry of the term of office as deputy or senator; (4) appointment of a judge to another judicial post, except for appointment of a district court judge to the post of regional court judge ... or a regional administrative court judge to the post of Supreme Administrative Court judge; (5) expiry or termination of the judge’s official term of office; (6) taking or being placed on retirement. 2. Resigning from the seat in the Council becomes effective at the time when the Chairman of the Council is informed thereof in writing. The Chairman immediately notifies the body which elected the member [concerned]. 3. Election of a new member of the Council should take place within two months of the date of the expiry of the term of office.” 69. Section 50 of the 2011 Act on the NCJ provided that the terms of office of members of the NCJ and members of the NCJ’s Praesidium elected on the basis of the previous regulations would last until the end of the period for which they had been elected. The 2017 Amending Act 70. The Act Amending the Act on the National Council of the Judiciary and Certain Other Acts ( Ustawa o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw – “the 2017 Amending Act”) was enacted on 8 December 2017. This Act entered into force on 17 January 2018, except for certain provisions which became effective earlier. 71. Section 9a added by the 2017 Amending Act introduced a new manner of electing judicial members of the NCJ. It reads as follows: “1. The Sejm shall elect from among judges of the Supreme Court, the ordinary, administrative and military courts, fifteen members of the Council for a joint four-year term of office. 2. When conducting the election referred to in subsection 1, the Sejm, to the extent possible, shall take into account the need for representation of judges of particular types and levels of court in the Council. 3. The joint term of office of the new members of the Council elected from among the judges shall begin on the day following that on which they were elected. Members of the Council from the previous term shall perform their duties until the first day of the joint term of office of new members of the Council.” 72. New sections 11a-11e regulate in detail the procedure of nomination and election of judicial members of the Council under the new regime. 73. Section 11a provides, in so far as relevant: “1. The Speaker of the Sejm, not earlier than one hundred and twenty days and not later than ninety days before the expiry of the term of office of the members of the Council elected from among the judges, shall announce in the Official Gazette of the Republic of Poland, Monitor Polski, the commencement of the procedure for submitting candidatures for election to the Council. 2. The entities entitled to nominate a candidate for the Council shall be groups of at least; (1) two thousand citizens of the Republic of Poland who are over eighteen years of age, have full capacity to perform legal acts and enjoy full public rights; (2) twenty-five judges, excluding retired judges. 3. One application may concern only one candidate for election to the Council. The entities referred to in subsection 2 may submit more than one application. 4. Candidates for election to the Council shall be notified to the Speaker of the Sejm within thirty days from the date of the announcement referred to in subsection 1.“ 74. Section 11d provides, in so far as relevant: “1. The Speaker of the Sejm shall request the parliamentary groups to indicate, within seven days, their candidates for election to the Council. 2. [Each] parliamentary group shall indicate, from among the judges whose candidatures have been put forward under section 11a, no more than nine candidates for election to the Council. 3. If the total number of candidates indicated by the parliamentary groups is less than fifteen, the Presidium of the Sejm shall indicate, from among the candidates nominated under the section 11a procedure, the number of candidates that are lacking up to fifteen. 4. The competent committee of the Sejm shall establish the list of candidates by selecting, from among the candidates indicated pursuant to the provisions of subsections 2 and 3, fifteen candidates for election to the Council, with the proviso that the list shall include at least one candidate indicated by each parliamentary group which has been active within sixty days from the date of the first sitting of the Sejm during the term of office in which the election is to take place, provided that such candidate has been indicated by the group within the framework of the indication referred to in subsection 2. 5. The Sejm shall elect the members of the Council, for a joint four-year term of office, at its next sitting, by a three-fifths majority in the presence of at least one half of the statutory number of Deputies, voting on the list of candidates referred to in subsection 4. 6. In the event of failure to elect members of the Council in accordance with the procedure set forth in subsection 5 the Sejm shall elect the members of the Council by an absolute majority of votes cast in the presence of at least a half of the statutory number of members, voting on the list of candidates referred to in subsection 4. 7. If, as a result of the procedure referred to in subsections 1-6, fifteen members of the Council are not elected, the provisions of sections 11a-11d shall apply accordingly.” 75. Section 11e(1) and (3) provides that should a position of the judicial member of the NCJ become vacant before the expiry of the joint term of office, a new judicial member is to be elected for the remaining duration of the original term of office. 76. Section 6 of the 2017 Amending Act provided for termination of the term of office of the judicial members of the NCJ elected under the previous provisions. It reads as follows: “The term of office of the members of the NCJ referred to in Article 187 § 1 (2) of the Constitution, elected under the previous provisions, shall continue until the day preceding the term of office of the new members of the NCJ without, however, exceeding 90 days from the date of the entry into force of the present Act, unless their term of office has expired earlier.” Domestic practiceCase-law of the Constitutional Court Case-law of the Constitutional Court Case-law of the Constitutional Court (a) Judgment of 26 May 1998, no. K 17/98 77. A group of deputies of the Sejm challenged the constitutionality of section 121a, as added to the Act on Elections to Municipal Councils by the Amending Act of 20 March 1998. The impugned provision stipulated that the date for elections to municipal councils in 1998 would be set on a public holiday falling within one hundred and twenty days of the expiry of the term of office of previous councils, in connection with the recomposition of the system of local government. The Constitutional Court held that the impugned provision was in conformity with the Constitution. 78. The relevant extract from the judgment concerning the term of office of a public body read as follows: “Any changes to the duration of a term of office should have effects pro futuro, in relation to bodies that are to be elected in the future ... The principle in question does not preclude the introduction of regulations permitting the term of office of a given body to be shortened. Regulations indicating the rules for the shortening of the term of office of a body should also be adopted before the beginning of the term of office of the body concerned and should not, in principle, be amended with regard to the body currently in office. In specific situations, however, it may be permissible to amend the regulation in force and to shorten the term of office of a body, even though the law did not originally provide for this at all, or specified the conditions for the shortening of the term of office in a more restrictive manner. Such a solution is admissible only if a specific constitutional provision does not prohibit it and on condition that special circumstances militate in favour of it.” (b) Judgment of 23 March 2006, no. K 4/06 79. In this case, the Constitutional Court examined the constitutionality of several provisions of the Act of 29 December 2005 on Transformations and Modifications of the Division of Tasks and Competences of State Bodies Responsible for Communications and Broadcasting. The Commissioner for Human Rights and two groups of deputies challenged, in particular, section 21(1) of the Act which provided for the early termination of the terms of office of the then members of the National Broadcasting Council (“the NBC”). The term of office of the NBC members was regulated by the 1992 Broadcasting Act. 80. The Constitutional Court, sitting as a full bench composed of fifteen judges, unanimously held that section 21(1) was incompatible with Article 2 (the rule of law) and Article 7 (legality) in conjunction with Article 213 § 1 of the Constitution. The Constitutional Court found as follows: “3.1. Continuity in the operation of a constitutional body ... The proper exercise by the NBC of its constitutional functions in relation to such important values as freedom of speech, the right to information and the public interest in broadcasting, requires that the independence of the Council members be ensured. One of the most important guarantees of this independence is stability in office, which means the prohibition of arbitrary dismissal before the expiry of the term of office ... On the assumption that stability is ensured in the election of members of the NBC, which is closely linked to the guarantee of the independence of the entire body, regulations leading to the immediate expiry of the terms of office of members of the NBC, without bearing any relation to the reasons for such expiry stipulated in the existing legislation and without the presence of special circumstances that would justify them, should be regarded as unacceptable. ... The Constitutional Court does not discern sufficient and constitutionally valid reasons to explain why the change made to the model of operation of the NBC required the immediate shortening of the existing terms of office of the members of the NBC. ... During the parliamentary work, the adoption of transitional provisions, which would respect the guarantees of independence of the NBC members and the requirement of stability of their office, was not even considered. The allegation that the adopted [legislative] changes were arbitrary is therefore upheld, thus entailing a violation of Article 2 and Article 7 in conjunction with Article 213 § 1 of the Constitution.” 81. The Constitutional Court further found that the principle of the protection of vested rights, as derived from the rule of law principle (Article 2 of the Constitution), did not apply to membership of the NBC, and could not therefore serve as a basis upon which to assess the shortening of terms of office of the NBC’s members. (c) Judgment of 18 July 2007, no. K 25/07 82. In this judgment, the Constitutional Court reviewed, on an application from the NCJ, the constitutionality of two provisions added to the 2001 Act on the Ordinary Courts by the Act of 16 March 2007 amending the Act on the NCJ of 2001 which introduced the incompatibilitas rule, namely that the position of judicial member of the NCJ would be incompatible with the position of president or vice-president of an ordinary court. The first of the impugned provisions (section 25a) stipulated (1) that a judge elected as member of the NCJ could not be appointed to the post of president or vice ‑ president of a court, and (2) that the appointment to such post would be terminated on election to the NCJ. The second of the impugned provisions (section 5) extended the rule included in section 25a to judicial members of the NCJ during their term of office. The Constitutional Court held (by four votes to one) that both provisions were incompatible with Article 187 § 1 (2) of the Constitution, and that the second of these provisions was also incompatible with Article 2 of the Constitution (rule of law). 83. In that judgment, the Constitutional Court first set out some important principles regarding the constitutional position of the NCJ. It stated that the NCJ was a constitutional collegial State authority and that its functions were related to judicial power as it could be inferred from the Constitution’s structure as well as from the NCJ’s composition and competences. 84. The Constitutional Court held, in so far as relevant: “3. ... In vesting the Council with competences relating to the protection of the independence of courts and judges, the Constitution also introduced a mechanism protecting the independence of the Council. Article 187 § 1 of the Constitution provides that the composition of the Council is hybrid: it connects representatives of the judiciary (with compulsory participation of the Presidents of the Supreme Court and the Supreme Administrative Court) with representatives of the executive (the Minister of Justice and a person appointed by the President of the Republic), together with four deputies and two senators. The [1997] Constitution introduced – in comparison to earlier provisions of constitutional rank – constitutional rules concerning the composition of the Council and specified the term of office of its members and the manner of their appointment or election. In the composition of the Council the Constitution gave a significant majority to elected judges of the ordinary, administrative and military courts and judges of the Supreme Court. The regulations concerning election of judges to the Council are of constitutional rank and of particular constitutional significance, since their status de facto determines the independence of this constitutional organ and the effectiveness of the Council’s work... In its judgment of 24 June 1998 (no. K 3/98), the Constitutional Court emphasised that the Council – like no other constitutional State organ – is called to protect the independence of courts and judges. 4. The Constitution regulates directly in Article 187 § 1 (2) the principle of election of judges to the NCJ, determining in that way the personal composition of the NCJ. It expressly provides that judges – elected by judges – may be members of the NCJ, without stipulating other additional conditions that would have to be met for their membership in the NCJ. The election is made from among four groups of judges mentioned in Article 187 § 1 (2) of the Constitution. The Constitution does not provide for their [judicial members of the NCJ] removal [from the NCJ], stipulating their four-year term of office in the NCJ. The election procedure set out in the [2001] Act on the NCJ... falls within the boundaries laid down in Article 187 § 1 (2) of the Constitution, securing the principle of election of judges by judges...” 85. The Constitutional Court further held with respect to the specific provisions challenged, in so far as relevant: “6. ...The Constitution provides in Article 187 § 3 that the term of office of members of the NCJ is four years. The Act on the NCJ contains an exhaustive list of reasons for terminating the office [of the NCJ member]. The reasons specified in section 10 of the 2001 Act on the NCJ (e.g. death, resignation, ... retirement, appointment to another judicial post) have an important substantive justification related to the objective inability to hold office... This [the new rule of incompatibilitas ] would result in the termination of office of members of the NCJ specified in section 25a of the Act on Ordinary Courts during their term of office and therefore a partial change in the personal composition of the Council prior to the expiry of their term of office or in the shortening of their term of office as presidents and vice-presidents of courts [while] retaining the office of a member of the NCJ. Imposing new obligations or restrictions on persons holding office – during their term of office – is not prohibited in principle. The Constitutional Court did not find it unconstitutional to introduce certain restrictions during the term of office aimed at eliminating circumstances favourable to corruption ... or a provision regulating the expiry of a term of office in the event of a conviction for an offence committed intentionally... However, in both cases, there was an important public interest [present]... However, in the case of imposing new obligations or restrictions, the principle of protecting trust in the State and its laws requires laying down a period of adaptation to new provisions. This is of particular importance for citizens in terms of the rights and obligations of persons discharging their functions or appointed for a specific term of office, as well as in respect of expectations on the part of those who elected them. ... Neither a representative of the Sejm nor a representative of the Prosecutor General demonstrated extraordinary, constitutionally justified reasons for the adopted regulation, and only such reasons could possibly justify a breach of tenure... The challenged law entered into force during the term of office of the elected members of the Council and of the presidents and vice-presidents of the courts, requiring the persons covered by it to fulfil a condition which did not exist either at the time when their candidatures were submitted or at the time of their election. In the present case, the legislature, during the term of office, introduced a new condition requiring certain persons elected to the Council to resign from their office as members of the Council. ... In its case-law concerning the principle of proportionality, in its aspect regarding the examination of the usefulness and necessity of the norms under review, the Constitutional Court has consistently indicated that if a given aim is achievable through the application of a different measure imposing lesser restrictions on rights and freedoms, then the application of the more onerous measure by the legislature goes beyond what is necessary, and thus violates the Constitution ... In this light, the Constitutional Court assesses the [challenged law], subjected to constitutional review, introduced with a 14-day vacatio legis during the term of office of the Council members, as a disproportionate interference in the constitutionally determined system of appointment and functioning of the NCJ – a constitutional body based on the tenure of elected members. Such changes [introduced by the impugned law] in the organisation of the Council and in the legal situation of judges – members of the Council – would have to be, in order to respect an appropriate adjustment period and to take account of the principle of the term of office, while respecting the requirement of ensuring trust in the State and its laws, implemented with effect from the beginning of the next term of office of the Council members. The Constitutional Court finds that section 5 in conjunction with section 6 of the amending Act is incompatible with Article 2 and Article 187 § 1 (2) of the Constitution on account of introducing changes during the term of office of Council members.” (d) Judgment of 20 June 2017, no. K 5/17 86. In this judgment of 20 June 2017, on the application of the Prosecutor General, the Constitutional Court declared unconstitutional certain provisions of the 2011 Act on the NCJ (see paragraphs 38-44 above). (e) Judgment of 25 March 2019, no. K 12/18 87. In its judgment of 25 March 2019, the Constitutional Court found, inter alia, that section 9a of the 2017 Amending Act was compatible with the Constitution (see paragraphs 60-62 above). (f) Judgment of 20 April 2020, no. U 2/20 88. On 24 February 2020 the Prime Minister lodged an application with the Constitutional Court, alleging that the resolution of the joined Chambers of the Supreme Court of 23 January 2020 (see paragraphs 110-116 below) was incompatible, inter alia, with several constitutional provisions, certain provisions of the Treaty on the EU and Article 6 § 1 of the Convention. 89. In its judgment of 20 April 2020, the Constitutional Court, by a majority of eleven to three, first found that it had jurisdiction to review the constitutionality of the Supreme Court’s resolution, having considered that it could be regarded as “legal provisions” issued by the central State bodies within the meaning of Article 188 (3) of the Constitution. The Constitutional Court then held that the resolution was incompatible with (a) Articles 179, 144 § 3 (17), 183 § 1, 45 § 1, 8 § 1, 7 and 2 of the Constitution; (b) Articles 2 and 4(3) of the TEU; and (c) Article 6 § 1 of the Convention. 90. The Constitutional Court’s judgment was given by a full bench composed of fourteen judges, including Judges M.M. and J.W. The latter was elected judge of the Constitutional Court following the death of Judge H.C., one of the judges elected in December 2015 to a seat that had already been filled. (g) Decisions of 28 January and 21 April 2020, no. Kpt 1/20 91. On 22 January 2020 the Speaker of the Sejm referred a question to the Constitutional Court as to whether there was a “conflict of competence between the Sejm and the Supreme Court and between the President of Poland and the Supreme Court”. As regards the first aspect, the Speaker inquired whether the Supreme Court was competent, by means of a resolution, to change the normative regulation regarding the organisation of the judiciary or whether such competence was vested solely with the legislature. As regards the second aspect, the Speaker asked, inter alia, whether the President of the Republic’s competence to appoint judges could be interpreted in such a manner that the Supreme Court had jurisdiction to assess the validity of the President’s decisions appointing judges. 92. On 28 January 2020 the Constitutional Court issued an interim decision, whereby it suspended the enforcement of the Supreme Court’s resolution of 23 January 2020 (see paragraphs 110-116 below) and suspended the prerogative of the Supreme Court to issue resolutions concerning the compatibility with national or international law or the case-law of international courts of the composition of the NCJ, the procedure for presenting candidates for judicial office to the President of the Republic, the prerogative of the President to appoint judges and the competence to hold judicial office by a person appointed by the President of the Republic upon recommendation of the NCJ. 93. On 21 April 2020 the Constitutional Court gave a decision [6], finally ruling on the matter of the “conflict of competence”, sitting as a full bench composed of thirteen judges, which included Judge M.M. The Constitutional Court decided to [7] : “1. Resolve the conflict of competence between the Supreme Court and the Sejm of the Republic of Poland as follows: (a) The Supreme Court – also in connection with a ruling of an international court – has no jurisdiction to make a ‘law-making interpretation’ ( wykładnia prawotwórcza ) of legal provisions, by means of [a resolution] which leads to modification in the legal situation regarding the organisational structure of the judiciary; (b) pursuant to Article 10, Article 95 § 1, Article 176 § 2, Article 183 § 2 and Article 187 § 4 of the Constitution, the introduction of any modification within the scope specified in point 1(a) shall be within the exclusive competence of the legislature. 2. Resolve the conflict of competence between the Supreme Court and the President of the Republic of Poland as follows: (a) under Article 179 in conjunction with Article 144 § 3 (17) of the Constitution, an appointment of a judge constitutes the exclusive competence of the President of the Republic of Poland, which he exercises upon the request of the National Council of the Judiciary personally, irrevocably and without any participation or interference of the Supreme Court; (b) Article 183 of the Constitution does not provide that the Supreme Court has jurisdiction to oversee the President of the Republic of Poland in his exercise of the competence referred to in Article 179 in conjunction with Article 144 § 3 (17) of the Constitution including [the Supreme Court’s jurisdiction] to give a binding interpretation of legal provisions to specify prerequisites for the President’s effective exercise of the said competence.” (h) Judgment of 14 July 2021, no. P 7/20 94. On 9 April 2020 the Disciplinary Chamber of the Supreme Court referred a legal question to the Constitutional Court on the conformity of certain provisions of the TEU with the Constitution in so far as they concerned the obligation of a member State of the EU to execute interim measures relating to the organisation of the judicial authorities of that State. 95. On 14 July 2021 the Constitutional Court, sitting as a bench of five judges, held a hearing and gave judgment in the case. It held, by majority, as follows: “The second sentence of Article 4(3) of the TEU, in conjunction with Article 279 of the TFEU, to the extent that the Court of Justice of the European Union imposes ultra vires obligations on the Republic of Poland, as a member State of the European Union, by issuing interim measures relating to the organisation and jurisdiction of the Polish courts and the procedure before those courts, is incompatible with Article 2, Article 7, Article 8 § 1 and Article 90 § 1 in conjunction with Article 4 § 1 of the Constitution of the Republic of Poland and to that extent is not subject to the principles of primacy and direct applicability [of a ratified international agreement] set out in Article 91 § 1 to 3 of the Constitution.” (i) Judgment of 7 October 2021, no. K 3/21 96. On 29 March 2021 the Prime Minister lodged an application with the Constitutional Court, alleging that (1) Article 1, first and second paragraphs in conjunction with Article 4(3) of the TEU; (2) Article 19(1), second subparagraph in conjunction with Article 4(3) of the TEU; and (3) Article 19(1), second subparagraph in conjunction with Article 2 of the TEU were incompatible with several provisions of the Constitution. 97. On 7 October 2021 the Constitutional Court delivered its judgment, sitting in a full bench composed of twelve judges, which included Judges M.M., J.P. and J.W. [8] The operative part of the judgment, which was published in the Journal of Laws on 12 October 2021 (item 1852), reads as follows [9] : “1. Article 1, first and second paragraphs, in conjunction with Article 4(3) of the TEU ... – in so far as the European Union, established by equal and sovereign States, creates ‘an ever closer Union among the peoples of Europe’, the integration of whom – brought about on the basis of EU law and through the interpretation of EU law by the Court of Justice of the European Union – enters ‘a new stage’ in which: (a) the European Union authorities act outside the scope of the competences conferred upon them by the Republic of Poland in the Treaties; (b) the Constitution is not the supreme law of the Republic of Poland, which takes precedence as regards its binding force and application; (c) the Republic of Poland may not function as a sovereign and democratic State, – is incompatible with Article 2, Article 8 and Article 90 § 1 of the Constitution. 2. Article 19(1), second subparagraph, of the TEU – in so far as for the purpose of ensuring effective legal protection in the areas covered by EU law – it grants domestic courts (ordinary courts, administrative courts, military courts, and the Supreme Court) the competence to: (a) bypass the provisions of the Constitution in the course of adjudication, is incompatible with Article 2, Article 7, Article 8 § 1, Article 90 § 1 and Article 178 § 1 of the Constitution; (b) adjudicate on the basis of provisions which are not binding, having been repealed by the Sejm and/or found by the Constitutional Court to be incompatible with the Constitution, is incompatible with Article 2, Article 7, Article 8 § 1, Article 90 § 1, Article 178 § 1 and Article 190 § 1 of the Constitution. 3. Article 19(1), second subparagraph, and Article 2 of the TEU – in so far as for the purpose of ensuring effective legal protection in the areas covered by EU law and of ensuring the independence of judges – they grant domestic courts (ordinary courts, administrative courts, military courts, and the Supreme Court) the competence to: (a) review the legality of the procedure for appointing a judge, including the review of the legality of the act in which the President of the Republic appoints a judge, are incompatible with Article 2, Article 8 § 1, Article 90 § 1 and Article 179, in conjunction with Article 144 § 3 (17) of the Constitution; (b) review the legality of the National Council of the Judiciary’s resolution to refer a motion to the President of the Republic for the appointment of a judge, are incompatible with Article 2, Article 8 § 1, Article 90 § 1 and Article 186 § 1 of the Constitution; (c) determine the defectiveness of the process for appointing a judge and, as a result, to refuse to regard a person appointed to judicial office in accordance with Article 179 of the Constitution as a judge, are incompatible with Article 2, Article 8 § 1, Article 90 § 1 and Article 179, in conjunction with Article 144 § 3 (17) of the Constitution.” (j) Judgment of 24 November 2021, no. K 6/21 98. As previously indicated (see paragraph 27 above), this judgment was given on an application by the Prosecutor General, who is at the same time the Minister of Justice, challenging the constitutionality of Article 6 § 1 of the Convention in relation to the Court’s judgment in Xero Flor w Polsce sp. z o.o. v. Poland (cited above). The Prosecutor General requested the Constitutional Court to hold that: “1. Article 6 § 1, first sentence, of the [Convention] in so far as the term ‘tribunal’ used in that provision includes the Constitutional Court of the Republic of Poland, is incompatible with Article 2, Article 8 § 1, Article 10 § 2, Article 173 and Article 175 § 1 of the Constitution; 2. Article 6 § 1, first sentence, of the [Convention] in so far as it identifies the guarantee arising therefrom to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law in the determination of one’s civil rights and obligations or of any criminal charge against him, with the competence of the Constitutional Court to adjudicate upon the hierarchical conformity of provisions and normative acts stipulated in the Constitution ..., and thereby allows to subject proceedings before the Constitutional Court to the requirements ensuing from Article 6 of the Convention, is incompatible with Article 2, Article 8 § 1, Article 79 § 1, Article 122 §§ 3 and 4, Article 188 (1-3 and 5) and Article 193 of the Constitution; 3. Article 6 § 1, first sentence, of the [Convention] in so far as it encompasses the review by the European Court of Human Rights of the legality of the process of election of Constitutional Court judges in order to determine whether the Constitutional Court is an independent and impartial tribunal established by law, is incompatible with Article 2, Article 8 § 1, Article 89 § 1 (3) and Article 194 § 1 of the Constitution.” 99. On 24 November 2021 the Constitutional Court, sitting as a bench of five judges, held a hearing and gave unanimous judgment in the case. The reasons for that judgment had not been yet published at the time of adoption of the present judgment. The operative part of the Constitutional Court’s judgment, which was published in the Journal of Laws on 26 November 2021 (item 2161), reads as follows: “1. Article 6 § 1, first sentence, of the [Convention] – in so far as the term ‘tribunal’ used in that provision comprises the Constitutional Court of the Republic of Poland – is incompatible with Article 173 in conjunction with Article 10 § 2, Article 175 § 1 and Article 8 § 1 of the Constitution of the Republic of Poland; 2. Article 6 § 1, first sentence, of the Convention referred to in point 1 – in so far as it grants the European Court of Human Rights the jurisdiction to review the legality of the election of judges to the Constitutional Court – is incompatible with Article 194 § 1 in conjunction with Article 8 § 1 of the Constitution.” The Constitutional Court discontinued the proceedings for the remainder. Case-law of the Supreme Court (a) Judgment of 5 December 2019, no. III PO 7/18 100. On 5 December 2019 the Supreme Court, sitting in a bench of three judges in the Labour and Social Security Chamber, gave judgment in the first of three cases that had been referred for a preliminary ruling to the CJEU, following the latter’s judgment of 19 November 2019 (joined cases C ‑ 585/18, C ‑ 624/18 and C ‑ 625/18; see paragraphs 150-152 below). It quashed the negative resolution of the NCJ of 27 July 2018 concerning the continued exercise by A.K. of the office of a judge of the Supreme Administrative Court. The Supreme Court held that the NCJ in its current formation was neither impartial nor independent of the legislature or the executive. It further found that the Disciplinary Chamber did not fulfil the requirements of an independent and impartial tribunal. 101. As regards its jurisdiction to examine the compatibility of domestic laws with EU law, the Supreme Court stated as follows [10] : “32. It must be stressed that Article 91 § 3 of the Constitution directly empowers the Supreme Court to examine the compatibility of statutes such as the Act on the Supreme Court and the Act on the NCJ with EU law. That provision directly implies, with no reservation or limitation, that statutes have to be compatible with EU law and the Convention, and not the other way round. The jurisdiction to review the compatibility of statutes with EU law rests, according to the Constitution, not with the Constitutional Court but, as a condition of EU accession, with any Polish court examining a case falling within an area covered by EU law.” 102. The Supreme Court made the following observations with regard to the Constitutional Court’s judgment of 20 June 2017, no. K 5/17 (see paragraphs 38-44 above): “33. The foregoing remarks are all the more important when considering the judgment of the Constitutional Court concerning the existing model of election of members of the NCJ (cf. judgment of 20 June 2017, K 5/17 ...). In that judgment, the Constitutional Court called into question its earlier position taken in the judgment of 18 July 2007, K 25/07 ..., to the effect that NCJ members must be judges elected by other judges. This implies that, in the absence of any amendment to the Constitution, the Constitutional Court not so much changed its position as regards appointment to the NCJ (judgment in K 5/17 vs. judgment in K 25/07) as created a divergence in its case-law regarding systemic issues of fundamental importance to the enforcement of the right to a fair trial enshrined in the national constitution and fundamental obligations of Member States of the European Union as a Union (community) of law. In that context, the two judgments of the Constitutional Court are evidently in conflict with each other. The interpretation offered in K 5/17 is not supported by legal theory, which considers that judgment to be a manifestation of a constitutional crisis, as it was rendered by a formation that included two members appointed to non-vacant positions of judges ... One should also consider information in the public domain, including statements of those members of the Constitutional Court, concerning various cases of dependence on, and informal relations with, politicians, which do not permit the Constitutional Court to be regarded as a court offering guarantees of independence in the exercise of its constitutional powers (Article 195 of the Constitution).” 103. As regards the standards set out in the preliminary ruling of the CJEU, the Supreme Court held: “35. The CJEU judgment of 19 November 2019 sets a standard which includes a comprehensive assessment of safeguards of the right to a fair trial by an independent and impartial court. Such assessment follows a two-step rule: (a) assessment of the degree of independence enjoyed by the NCJ in respect of the legislature and the executive in exercising the responsibilities attributed to it under national legislation, as the body empowered to ensure the independence of the courts and judges, since the independence of the NCJ will determine whether the judges which it selects will be capable of meeting the requirements of independence and impartiality arising from Article 47 of the Charter of Fundamental Rights (judgment in C-585/18, §§ 139-140); (b) assessment of the circumstances in which the new judges of the Disciplinary Chamber of the Supreme Court were appointed and the role of the Council in that regard (judgment in C-585/18, § 146)... 37. Following the guidance provided in the CJEU judgment of 19 November 2019, C-585/18, one should in the first place consider the circumstances concerning the NCJ. That assessment requires no evidential proceedings; in any case, such proceedings would be beyond the remit of the Supreme Court and consist in the consideration of positions that are publicly known and available to all parties to the proceedings. 38. With respect to the NCJ, the CJEU judgment of 19 November 2019 requires the examination of the following: (-) the objective circumstances in which that body was formed; (-) the means by which its members have been appointed; (-) its characteristics; (-) whether the three aforementioned aspects are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that body to external factors, in particular, as to the direct or indirect influence of the legislature and the executive and its neutrality with respect to the interests before it.” 104. The Supreme Court further underlined its role as an EU court implementing the CJEU judgment: “39. ... [T]he Supreme Court categorically declares (once again) that, acting as an EU court in the enforcement of the CJEU judgment of 19 November 2019, it does not examine the constitutionality of the provisions of the Act on the NCJ in the wording effective as of 2018 but their compatibility with EU law. The Supreme Court has the jurisdiction to undertake such examination not only in the light of uniform well-established case law (cf. CJEU judgment of 7 September 2006, C-81/05) but also under the unequivocal powers vested in it by the Constitution which require no complex interpretation in the case in question. Article 91 § 3 of the Constitution provides clearly and beyond any doubt: ‘If an agreement, ratified by the Republic of Poland, establishing an international organisation so provides, the laws established by it shall be applied directly and have precedence in the event of a conflict of laws.’ Furthermore, the examination of how the applicable provisions governing the functioning of the Council and its practice in the performance of functions under the Constitution and provisions of national law influence the fulfilment of the requirements of independence and impartiality under EU law by a court formed with the participation of the Council represents a typical judicial examination of certain facts and provisions of law. It should be recalled once again that such examination is completely unrelated to the jurisdiction vested in the Constitutional Court by the Constitution and the Act on the Constitutional Court.” 105. With regard to the new NCJ, the Supreme Court held, in so far as relevant: “40. With regard to the circumstances in which the [new] NCJ was established, one should bear in mind the shortening of the term of office of the previous NCJ, a constitutional body under Article 187 § 3 of the Constitution. It concerns section 6 of the [2017 Amending Act]. As intended by the legislature, the new provisions were to ensure conformity with the Constitution in connection with the Constitutional Court’s judgment of 20 June 2017 (no. K 5/17...), pursuant to which sections 11 §§ 2-4 and 13 § 3 of the Act on the NCJ are incompatible with the Constitution to the extent that they provide for the individual term of office of judicial members of the Council. In this respect, the Supreme Court finds that the afore-mentioned ‘judgment’ of the Constitutional Court was given with the participation of judges elected in breach of Article 190 § 1 of the Constitution, as ascertained in the Constitutional Court’s judgments of 16 December 2015, K 34/15 ..., of 9 March 2016, K 47/15 ... and of 11 August 2016, K 39/16 ... Furthermore, the Constitutional Court’s argument concerning the harmonisation of the term of office of members of the NCJ is indefensible on the grounds of Article 194 § 1 of the Constitution. This provision concerns the individual election of the Constitutional Court’s judges rather than their individual term of office. While one is the function of the other, the objective of this provision was also to proscribe electing judges [of the Constitutional Court] en bloc, which fully justifies its wording, different from that of Article 187 § 3 of the Constitution ... The Constitutional Court understood that the election of the NCJ’s members is to be aligned with the term of office of the Sejm. This means that Article 187 § 3 of the Constitution aligned the term of office of the NCJ with the term of office of the Sejm, by analogy with the State Tribunal ( Trybunał Stanu ). Such a position cannot be reliably justified. Had this been its intended purpose, Article 187 § 3 of the Constitution would have been drafted in analogous terms to those of Article 199 § 1 of the Constitution. Yet, since the two provisions employ different terms (“four years” and “the term of office of the Sejm ”), their respective meanings ought to be different on the assumption that the law (the Constitution) is rational. There are no arguments to justify such differentiation for other reasons. Consequently, it should be assumed that the systemic interpretation that the Constitutional Court attempted to rely on, contradicts its findings ... The foregoing leads to the conclusion that the terms of office of former members of the NCJ were terminated by the legislature on the basis of the domestic Constitutional Court’s judgment delivered by a formation contrary to the constitutional standard arising from the Constitutional Court’s case-law. 41. Secondly, the manner of appointing members of the Council needs to be analysed. ... the analysis should commence with a brief historical note of the model of electing the NCJ’s members. The issue of establishing the NCJ was already discussed by legal experts during the “roundtable” talks. The report of the subcommittee on Reform of Law and Courts concluded that judges would be elected to that body [the NCJ] by general assemblies of courts ... The Act of 20 December 1989 on the NCJ ... provided that the Sejm elects members of the Council from among its deputies, the Senate – from among senators, and general assemblies of judges of courts of all levels from among judges. Such a mechanism for electing members of the Council was in effect on the date of entry into force of the Constitution of 2 April 1997 ..., which regulated in Article 186 the status of the NCJ as a constitutional body... Decisions made during a session of the Subcommittee for Institutions of Legal Protection and Bodies of Administration of Justice (e.g. that of 7 December 1994 held as part of the Constitutional Committee of the National Assembly) take on special importance, where the model of electing Council members was debated, judges being entrusted with the task of electing some of those members. The intention of entrusting the election of judicial members of the NCJ exclusively to the judicial community was expressed in particular during a session of the Constitutional Committee of the National Assembly on 13 November 1996 ... and the debate held during the Constitutional Committee’s session on 5 September 1995 ... This state of affairs is corroborated by a joint statement of Professors A. Zoll [11] and A. Strzembosz [12], published by [daily] Rzeczpospolita on 7 March 2018, indicating that concepts tabled by “Solidarity” during the 1980s have been incorporated into the Constitution. Appointing judicial members of the NCJ by judges seemed obvious since only a majority judicial representation on the Council would safeguard the independence of the judiciary from the legislature and the executive. The authors of the said statement already then emphasised that the current NCJ in its present form – as appointed in its new formation – does not have the characteristics and competencies bestowed upon it pursuant to the Constitution; consequently, its resolutions are invalid by nature... 42. In implementing these constitutional concepts, the Act of 27 July 2001 on the NCJ ... maintained the mechanism of electing judicial members of the Council by judges. The Act of 12 May 2011 on the NCJ also (in its initial version ...) adopted the same mechanism of electing members of the NCJ ... The composition of the Council established in this manner was considered a logical conclusion of the Council being entrusted with the task of safeguarding the independence of courts and judges ... 43. A substantial change in the mechanism for electing the NCJ’s members was introduced by the [2017 Amending Act ] ... Pursuant to its section 1 (1), the Sejm shall elect fifteen members of the Council for a joint four-year term of office from among judges of the Supreme Court, ordinary courts, administrative courts and military courts. When making its choice, the Sejm shall – to the extent possible – recognise the need for judges of diverse types and levels of court to be represented on the Council. It should be underlined here that provisions of the Constitution have not been amended as regards the membership of the NCJ and the principles of appointing Council members. This means that a statute could only modify the manner of electing judicial members of the Council by judges, rather than introducing a procedure whereby Council judicial members are elected by the legislature. The aforementioned [2017 Amending Act] adopted jointly with the new Act on the Supreme Court introduced a solution whereby the legislative and the executive – regardless of the long statutory tradition of a part of the Council members being elected by judges themselves, thus reflecting provisions of the Constitution with regard to the Council’s status and competences and with regard to the separation of the judiciary from other powers – gained a nearly monopolistic position in determining the NCJ’s membership. At present, the legislature elects fifteen judicial members of the NCJ, and additionally six other members are parliamentarians (four elected by the Sejm and two elected by the Senate). The new election of fifteen judges to the NCJ has resulted in a situation where both houses of parliament decide about the appointment of twenty-one out of twenty-five members of the Council (i.e. 84% of its composition). Furthermore, the Minister of Justice and a representative of the President of the Republic are ex officio members of the NCJ. Thus, twenty-three out of twenty-five members are ultimately appointed by other powers than the judiciary. This is how the separation and balance between the legislative, executive and judicial powers – described in Article 10 of the Constitution and constituting a foundation of a democratic State governed by the rule of law (Article 2 of the Constitution) – have been distorted. 44. The Council is a constitutional body; the very fact that it does not have a counterpart in all EU Member States does not translate into the possibility of forming or shaping it arbitrarily as the regulatory framework has been laid out in the Constitution and further restrictions arise from the right to a fair trial as stipulated by European Union standards. The Council does not exercise judicial power, neither is it (in view of its membership) a corporate self-governing body; it is a hybrid authority. Legal scholarship has expressed a position that a literal interpretation of the provision of the Constitution stipulating that the NCJ includes ‘fifteen members elected from among the judges’ (Article 187 § 2 (2) of the Constitution) would prove counter-constitutional, should it result in concluding that judicial members cannot be elected by judges. This would mean that the process of construing a constitutional norm ignores the Council’s tasks as specified in the Constitution, including the safeguarding of the independence of courts and judges ..., and ignores Article 173 [of the Constitution], pursuant to which courts are a power ‘independent and separate from other powers’...” 106. With regard to the submission of candidatures, candidate endorsement lists and the non-disclosure of those lists, the Supreme Court held: “45. The Supreme Court’s assessment in acting on the binding legal interpretation expressed in the CJEU’s judgment of 19 November 2019 attaches importance to the process of selecting members of the current Council. With regard to this particular matter, the point at issue concerns the endorsement lists that were apparently offered to candidates by judges. To date, it has not been verified whether new Council members were lawfully nominated as candidates, and who endorsed them. Relevant documents have not been disclosed yet, despite the relevant judgment of the Supreme Administrative Court of 28 June 2019, OSK 4282/18... It is common knowledge that the enforcement of the judgment has faced an obstacle in a decision issued by the Chair of the Personal Data Protection Authority on 29 July 2019 on the initiative of one of the members of the new NCJ. Consequently, it has come to pass that a judicial body responsible for a review of administrative authorities has in effect itself fallen under the review of the latter. The failure to implement the Supreme Administrative Court’s judgment justifies an assumption that the content of the lists of endorsement for judicial candidates to the NCJ corroborates their dependence on the legislature or on the executive. 46. The Supreme Court further concludes that it is common knowledge that the public has been informed of judicial candidates to the Council having been recommended by presidents of district courts appointed by the Minister of Justice; other judges were recommended by judges dependent on (reporting to) candidates in managerial positions in courts of higher instance; judicial candidates were also recommended by the plenipotentiary of the Institute of the Judiciary at the Ministry of Justice; last but not least, some candidatures were submitted by the next of kin; candidates recommended other candidates; some of the elected members of the future Council were Ministry of Justice employees. All these facts prove that the executive branch – acting through its direct or indirect subordinates – stood behind the majority of recommendations for NCJ judicial member candidatures. Such circumstances accompanying the process of electing current Council members may well raise doubts in the mind of the general public as to the Council’s independence from the executive. 47. Furthermore, persons endorsing candidates withdrew their endorsement during the period for submission of candidatures, and at least one member of the new NCJ had endorsed his/her own application... 48. Such circumstances contradict the notion of representativeness of the body referred to in Article 187 § 2 of the Constitution...” 107. The Supreme Court concluded as follows: “60. On the basis of an overall assessment of all the above circumstances, the Supreme Court concludes that, as of this day, the current NCJ does not provide sufficient guarantees of independence from the legislature and executive authorities in the judicial appointment procedure.” (b) Resolution of 8 January 2020, no. I NOZP 3/19 108. On 8 January 2020 the Chamber of Extraordinary Review and Public Affairs of the Supreme Court, sitting as a bench of seven judges, issued a resolution following a legal question referred by a bench of three judges. The legal question arose in a case in which unsuccessful candidates for appointment to the post of judge of the Court of Appeal had lodged an appeal against the resolution of the new NCJ proposing another candidate to the same post, and were contesting the NCJ’s status. The Chamber of Extraordinary Review and Public Affairs of the Supreme Court held as follows: “1. The Supreme Court, when considering an appeal against a resolution of the NCJ proposing to the President of the Republic of Poland a candidate for the post of judge, shall examine, within the limits of the grounds of appeal, whether the NCJ is an independent body in the light of the criteria set out in the judgment of the CJEU of 19 November 2019 in Joined Cases C-585/18, C-624/18 and C-625/18, A.K. and Others v. Supreme Court, §§ 139 to 144. 2. The Supreme Court quashes, within the limits of the appeal, a resolution of the NCJ proposing to the President of the Republic of Poland a candidate for appointment to the post of judge if the appellant demonstrates that the lack of independence of the NCJ influenced the content of that resolution or if – having regard to the constitutional prohibition on reviewing the effectiveness of the constitutional act of appointing a judge and the constitutional relationship arising therefrom – the appellant demonstrates the circumstance set out in § 125, or jointly the circumstances set out in §§ 147 to 151 of the judgment referred to in point 1., indicating that a bench including such a judge will not be independent and impartial.” (c) Decisions of 15 January 2020 (nos. III PO 8/18 and III PO 9/18) 109. On 15 January 2020 the Supreme Court, sitting in the Labour and Social Security Chamber, gave two decisions in two remaining cases that had been referred for a preliminary ruling to the CJEU. In these cases, two judges of the Supreme Court contested the fact of being placed on retirement as a result of the entry into force of the new Act on the Supreme Court which provided for the lowering of the retirement age for sitting judges of the Supreme Court. The Supreme Court decided not to transfer the cases to the Disciplinary Chamber of the Supreme Court. It found that it had no jurisdiction to rule in these cases and remitted them to the District Court. In both decisions, the Supreme Court shared the findings expressed in the Supreme Court’s judgment of 5 December 2019 as to the status of the new NCJ and the Disciplinary Chamber of the Supreme Court (see paragraph 100 above). (d) Resolution of the formation of the joined Civil, Criminal and Labour and Social Security Chambers of the Supreme Court of 23 January 2020 (no. BSA I-4110-1/20) 110. Having regard to the Supreme Court’s judgment of 5 December 2019 and the resolution of 8 January 2020 by the Chamber of Extraordinary Review and Public Affairs of the Supreme Court, the First President of the Supreme Court requested the three joined Chambers of that court to issue a resolution with the view to resolving divergences in the case-law of the Supreme Court in connection with the CJEU judgment of 19 November 2019. The request concerned the legal question whether the participation in a composition of an ordinary court or the Supreme Court of a person appointed to the office of a judge by the President of the Republic on the proposal of the NCJ formed in accordance with the 2017 Amending Act would result in a violation of Article 45 § 1 of the Constitution, Article 6 § 1 of the Convention or Article 47 of the Charter of Fundamental Rights. 111. On 23 January 2020 the Supreme Court, sitting in a formation of the joined Civil, Criminal and Labour and Social Security Chambers (fifty ‑ nine judges) issued its resolution [13]. It noted that in issuing the resolution, it was implementing the CJEU’s judgment of 19 November 2019. The Supreme Court made the following conclusions [14] : “1. A court formation is unduly composed within the meaning of Article 439 § 1 (2) of the Code of Criminal Procedure, or a court formation is inconsistent with the provisions of law within the meaning of Article 379 § 4 of the Code of Civil Procedure, also where the court includes a person appointed to the office of judge of the Supreme Court on the recommendation of the NCJ formed in accordance with the [2017 Amending Act]. 2. A court formation is unduly composed within the meaning of Article 439 § 1 (2) of the Code of Criminal Procedure, or a court formation is inconsistent with the provisions of law within the meaning of Article 379 § 4 of the Code of Civil Procedure, also where the court includes a person appointed to the office of judge of an ordinary or military court on the recommendation of the NCJ formed in accordance with the [2017 Amending Act], if the deficiency of the appointment process leads, in specific circumstances, to a violation of the guarantees of independence and impartiality within the meaning of Article 45 § 1 of the Constitution of the Republic of Poland, Article 47 of the Charter of Fundamental Rights of the European Union and Article 6 § 1 of the [Convention]. 3. The interpretation of Article 439 § 1 (2) of the Code of Criminal Procedure and Article 379 § 4 of the Code of Civil Procedure provided in points 1 and 2 above shall not apply to judgments given by courts before the date hereof and judgments to be given in proceedings pending at the date [of the present resolution] under the Code of Criminal Procedure before a given court formation. 4. Point 1 [above] shall apply to judgments issued with the participation of judges appointed to the Disciplinary Chamber of the Supreme Court under the Act of 8 December 2017 on the Supreme Court ... irrespective of the date of such judgments.”. 112. In the reasons for the resolution, the Supreme Court held, in so far as relevant: “31. In the light of Article 179 of the Constitution, the President of the Republic appoints to the office of judge not just anyone, at his sole discretion as to the candidate’s qualifications and ability to hold office, but exercises that power on a motion of the NCJ. Therefore, a motion of the NCJ is a condition sine qua non for effective appointment. Moreover, a motion concerning a judicial appointment cannot be lodged by anyone except a body acting as the National Council of the Judiciary, not only in name but based on the procedure of its appointment and the conditions under which it exercises its powers (decision of the Constitutional Court of 23 June 2008, 1 Kpt 1/08). The [2017 Amending Act] terminated the terms of office of the members of the NCJ referred to in Article 187 § 1 (2) of the Constitution, elected in accordance with the previous regulations. The shortening of the terms of office of judges sitting on the National Council of the Judiciary on the date of entry into force of the amending legislation was justified by the need to ensure a joint term of office for all NCJ members; however, the amended Act allows for the term of office of an NCJ member to expire before the end of the four-year term (cf. section 11e(1) and (3), section 14(1) of the Act of 12 May 2011 on the National Council of the Judiciary [as amended]), which is contrary to Article 187 § 3 of the Constitution. Therefore, the argument justifying the amendment was false, and the NCJ’s term of office was terminated for other reasons. New members of the NCJ were elected by the Sejm in accordance with [the 2017 Amending Act], which was contrary to Article 187 § 1 (2) of the Constitution. Having challenged on the basis of that provision the requirement that judicial members of the NCJ were to be elected by judges does not permit the designation of a State authority that could elect them. The Constitution does not provide for a presumption of competence in favour of Parliament. After [the 2017 Amending Act], fifteen members of the Council who were judges were elected by the Sejm for a joint four-year term of office (section 9a(1) of [the Act on the NCJ as amended by the 2017 Amending Act]). None of them is a judge of the Supreme Court, as is required under Article 187 § 1 (2) of the Constitution. In view of the procedure of election of judges to the NCJ under [the 2017 Amending Act], the judiciary no longer has any control over the membership of the NCJ and thus, indirectly – in connection with amendments of other systemic provisions – over which candidates are proposed to the President for appointment to the office of judge of an ordinary court, a military court, the Supreme Court, or an administrative court. The NCJ has been dominated by political appointees of the majority in the Sejm. Following the election of 15 judges to sit as members of the NCJ by the Sejm, as many as 21 out of the 25 members of the NCJ are political appointees of both Houses of Parliament. Following the election of judges to the NCJ [by the Sejm ], judges sitting as members of the NCJ no longer represent judges of the Supreme Court, judges of ordinary courts, administrative courts and military courts, as required under Article 187 § 1 (2) of the Constitution. Judges sitting as members of the NCJ by political appointment have no legitimacy as representatives of the judicial community, a task which should be entrusted to persons having authority and remaining independent of political influence. That has largely weakened the role of the NCJ as a guardian of the independence of courts and judges. The provisions of the [2017 Amending Act] governing the election of judges to the NCJ are incompatible with the principle of the separation and balance of powers (Article 10 § 1 of the Constitution), as well as with the principle of separation and independence of the courts (Article 173 of the Constitution) and independence of judges (Article 178 of the Constitution). The principle of separation of the judiciary is of crucial relevance in this context. According to that principle, based on the separation and balance of powers, the legislature and the executive may interfere with the functioning of the judiciary only to the extent allowed by the Constitution, that is, where expressly provided for in the Constitution. With respect to the NCJ, the principle of separation implies that the legislature and the executive may influence the membership and functioning of the NCJ only to the extent expressly provided for by the Constitution (Article 187 § 1 (1) in fine ), (3) and § 4). Consequently, in determining the organisational structure, the scope of activity and working procedures of the NCJ (Article 187 § 4 of the Constitution), the legislature cannot create its power – not provided for in the Constitution – to elect members of the NCJ from among judges, because the scope of its power to appoint members of the NCJ was defined in the Constitution (Article 187 § 1 (3)). In turn, the shortening of terms of office of previous members of the NCJ and the election of new members on the basis of the [2017 Amending Act] raises serious doubts as to compliance with Article 187 §§ 1 and 3 of the Constitution, and, consequently, doubts as to the legality of the NCJ and the procedure for nomination of candidates to the office of judge with the participation of the NCJ.” 113. In respect of the endorsement lists for candidates for the NCJ, the Supreme Court noted: “32. ...Endorsement lists presented by judges running as candidates for the NCJ had to be signed not just by anyone, but by judges... A request for information concerning persons who signed the lists of endorsement of judges running as candidates to the NCJ, according to regulations governing access to public information, confirmed as legitimate by a legally binding judgment of the Supreme Administrative Court of 28 June 2019, no. I OSK 4282/18, dismissing a cassation appeal of the Head of the Chancellery of the Sejm against the judgment quashing the decision in part concerning the refusal to disclose such information, has been disregarded by the Head of the Chancellery of the Sejm and the Speaker of the Sejm, who have refused to comply with the legally binding judgment. That state of affairs has prevailed to date... According to a published statement of Judge M.N., appointed as a member of the NCJ, he signed his own endorsement list. According to a published statement of four judges, Judge M.N. used withdrawn endorsements to run as a candidate for the NCJ. The endorsements were withdrawn long before the list was verified and used in a vote; the Speaker of the Sejm was given an advance notice of the circumstance (on 25 January 2018)... If candidates for the NCJ signed each other’s endorsement lists, that is indicative of the scale of endorsement for the members of the NCJ in the judicial community. 114. With regard to the exercise of the President’s prerogative to appoint judges, the Supreme Court noted, in so far as relevant: “36. According to Article 7 of the Constitution, bodies of public authority shall function on the basis of, and within the limits of, the law; that is, exclusively on the basis of the authority conferred by law, by which their actions are legitimised. That applies also to the President of the Republic because his official acts are not excluded from the scope of Article 7 of the Constitution... The President appoints judges but he does so not just at any time and at his own discretion but on a motion of the NCJ. No appointment may be granted to anyone who is not concerned by such motion (cf. the decision of the Constitutional Court of 23 June 2008, 1 Kpt 1/08). The minimum conditions for the exercise of the prerogative in question by the President of the Republic therefore require that his act be initiated by a duly constituted and appointed body having the status of the NCJ. Since the entry into force of the [2017 Amending Act] and the 2017 Act on the Supreme Court, the NCJ has not been duly appointed under the Constitution; consequently, the NCJ could not exercise its powers, which the President of the Republic should have determined before exercising his prerogative. Persons named in the lists of recommendations drawn up in a defective procedure of appointment for judicial positions cannot be considered to have been candidates for office duly presented to the President of the Republic whom the President of the Republic is competent to appoint to the office. Even assuming that the issuance of letters of appointment to such persons renders them formally appointed to the office of judge, it is necessary to determine whether, and to what extent, such persons may exercise judicial functions, so that the requirement of impartiality and independence of a court administering justice is not thereby infringed.” 115. The Supreme Court further made the following observations regarding political influence on the election of the NCJ members: “38. The model of procedure for appointment of a specific person to the office of judge has a particular bearing on whether the court comprised of such appointee may be considered an impartial and independent tribunal in a given case... In this context, it should be noted that, according to the official statement of the Minister of Justice issued in the legislative procedure on 15 January 2020 at the Senate of the Republic of Poland, membership of the NCJ was determined in such a way as to ensure that it was comprised of persons loyal to the parliamentary majority (the political group represented by the Minister of Justice): ‘ each group could propose judges they are accountable for. We have proposed judges who we thought were willing to co-operate with the judicial reform’ – transcript of the third session of the Senate of the Republic of Poland of the 10th term, 15 January 2020). Consequently, choices made by the Council are systemically not independent of political interest, affecting the fulfilment of the objective criteria of impartiality and independence by persons appointed to the office of judge on the motion of the NCJ. In other words, because the NCJ has been politicised, competitions for judicial positions are very likely to be decided not based on substantive criteria but depending on political loyalties or support for the reform of the judiciary pursued by the parliamentary majority in conflict with the Constitution. In systemic terms, that undermines trust in the impartiality of persons so appointed. The lack of independence essentially consists in decisions of that body being subordinated to political authorities, in particular the executive...” 116. As regards the lack of independence of the NCJ, the Supreme Court concluded as follows: “42. ... The formation of the Supreme Court passing the present resolution fully shares the position presented in the judgment of the Supreme Court of 5 December 2019, III PO 7/18 to the effect that the NCJ so formed is not an independent body, but a body subordinated directly to political authorities. Consequently, competitions for the office of judge carried out by the NCJ have been and will be defective, creating fundamental doubts as to the motivation behind motions for the appointment of specific individuals to the office of a judge... The foregoing [finding] is unrelated to doubts concerning the constitutionality of the election of some [judicial] members of the NCJ. The latter question has not been the subject of interpretation of the Supreme Court; however, it is reasonable to assert that the current functioning of the NCJ is a result of the departure from the constitutional requirements for the election of some members of the Council.” Case-law of the Supreme Administrative Court 117. Following the CJEU’s judgment of 2 March 2021 (see paragraphs 155-156 below), on 6 May 2021 the Supreme Administrative Court gave judgments in five cases (nos. II GOK 2/18; II GOK 3/18; II GOK 5/18; II GOK 6/18 and II GOK 7/18) concerning appeals against resolutions of the NCJ by which the latter had decided not to propose to the President of the Republic the appointment of the appellants to positions as judges of the Civil and Criminal Chambers at the Supreme Court and to propose the appointment of other candidates to those positions. The Supreme Administrative Court quashed the impugned NCJ resolutions both in the part concerning the recommendation of other candidates for appointment to the Supreme Court and in the part concerning the refusal to propose the appointment of the appellants. All the judgments contain similar reasoning. 118. In particular, in its judgment of 6 May 2021, no. II GOK 2/18 the Supreme Administrative Court considered that the current NCJ did not offer sufficient guarantees of independence from the legislative and executive powers in carrying out the functions entrusted to it. In making that assessment, the Supreme Administrative Court relied on the factors set out by the CJEU in its judgments of 2 March 2021 (paragraphs 131-132) and of 19 November 2019 (paragraphs 143-144), namely that: (1) the current NCJ was constituted as a result of the premature termination of the four-year terms of office of former members of the NCJ; (2) in contrast to the former legislation under which fifteen judicial members of the NCJ had been elected by their peers directly, they were currently elected by a branch of the legislature; (3) the potential for irregularities which could adversely affect the process of appointment of certain members of the new NCJ; (4) the manner in which the current NCJ exercised its constitutional responsibility to safeguard the independence of courts and judges. The Supreme Administrative Court accepted – as did the CJEU in the above-mentioned judgments – that while each element taken in isolation might not necessarily lead to that conclusion, their combination in conjunction with the circumstances in which the current NCJ had been constituted could raise doubts as to its independence. 119. The relevant extracts from the Supreme Administrative Court’s judgment no. II GOK 2/18 read as follows: “7.6. ... Since the CJEU’s judgments of 2 March 2021 and 19 November 2019 were given in an identical legal framework ..., so the assessment of the significance of the criteria relevant for the independence of the NCJ had to take into account the commonly known circumstances and facts relating to the creation of the NCJ in its new composition and its activities, including the sources of knowledge of those circumstances and facts which formed the basis of the findings in case no. III PO 7/18 decided by the Supreme Court in its judgment of 5 December 2019. The Supreme Administrative Court accepts these findings in their entirety as its own (see paragraphs 40-60 of the Supreme Court’s judgment). The Supreme Administrative Court also fully and unreservedly shares the assessment of the significance of these circumstances and facts for the independence of the NCJ ... It [the assessment] warrants the assertion that the current NCJ does not provide sufficient guarantees of independence from the legislative and executive powers in the procedure for appointment of judges. In this regard, it is also important to emphasise the significance of the fact that the composition of the NCJ currently includes fourteen representatives of judges of ordinary courts and does not include judges of the Supreme Court and judges of administrative courts, as categorically required by Article 187 § 2 of the Constitution, which cannot be complied with only in so far as possible, as provided for in section 9a of the Act on the NCJ. Moreover, among the [judicial] members of the [current] NCJ, i.e. among judges of ordinary courts..., there are (and certainly there were on the date when the resolution subject to the review in the present case was adopted) presidents and vice-presidents of ordinary courts appointed by the executive in place of those dismissed earlier by that power. This leads to the conclusion that those members of the Council are strictly functionally subordinated to the executive, which is represented in the Council by the Minister of Justice, thus also making that subordination of an institutional nature. ... A part of the executive, but also of the legislative power – given the peculiar fusion of these powers resulting from the logic of the system of government adopted – and thus powers that are political by nature, therefore significantly gain in importance and influence in a body whose primary role is to safeguard the independence of the courts and judges. This can and should also be inferred from the fact that twenty-three of the twenty-five members of the NCJ are nominated to its composition by powers other than the judiciary. At the same time, the rules governing election of fifteen judges to the NCJ by the Sejm have to be regarded as far removed from respecting the principle of representativeness, since their election is not only made by the first chamber of Parliament (the Sejm ), but may also be made – quite apart from the fact that they are nominated from among candidates put forward by a group of 2,000 citizens ... – from among candidates put forward by a group of twenty-five judges, with the exception of retired judges. Such a quantitative criterion of successful candidature does not constitute a reliable criterion for assessing the representativeness of a candidate, especially when compared with the number of judges in service and, moreover, when compared with the practice of assessing its fulfilment. The latter allowed for support for one’s own candidature, mutual support between candidates or even, in an extreme case, the use, as support given, of support that was (effectively) withdrawn by the judges originally supporting ... the candidature. The rules and procedure for determining the personal composition of the NCJ were thus clearly motivated by an intention to subject it to a kind of supervision of the executive power, and hence of the parliamentary majority, which, in the context of the procedure for selecting members of the NCJ and the majority required to do so, as well as in relation to the functional and institutional subordination of the Council, also emphasises the significance of the factor of (political) loyalty of the candidates to the entity conducting the election. This is confirmed by the ... the content of the statement [of the Minister of Justice] recorded in the transcript of the 3rd session of the Senate of the 10th term of 15 January 2020. – ‘ each group could propose judges they are accountable for. We have proposed judges who we thought were willing to co-operate with the judicial reform’. The so determined composition of the NCJ thus nullifies the possibility of it effectively carrying out its basic function, namely safeguarding the independence of the courts and judges. ... There is also no position ... of the NCJ which could indicate that it, a constitutional body appointed to uphold the independence of the courts and judges, respects the positions of national and European institutions and bodies stressing the importance of the principle of independence of the courts and judges in relation to situations directly indicating that they suffer a significant damage, or that it opposes such situations, including in particular actions disregarding the legal consequences of the order of the Court of Justice of 8 April 2020 in case C-791/19 R. Evidence of its abdication in this respect – for the Council’s attitude remains in clear opposition to the duties and functions conferred on it by the Constitution – is undoubtedly also the fact that the NCJ was suspended from membership of the ENCJ in September 2018. ... In the light of the foregoing arguments, it is therefore reasonable to conclude that the current NCJ does not provide sufficient guarantees of independence from the executive and the legislative powers in the procedure for appointing judges. The degree of its dependence on the legislative and executive powers in the performance of the tasks entrusted to it is, in turn, so high that it cannot be without significance for the assessment as to whether the judges selected by it meet the objective requirements ... of independence and impartiality under Article 47 of the Charter of Fundamental Rights.” INTERNATIONAL LAW AND PRACTICEVienna Convention on the Law of Treaties Vienna Convention on the Law of Treaties Vienna Convention on the Law of Treaties 120. Article 27 of the Vienna Convention on the Law of Treaties of 1969 provides, in so far as relevant: Internal law and observance of treaties “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty...” The Permanent Court of International Justice 121. The Permanent Court of International Justice in its advisory opinion of 4 February 1932 on Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory (PCIJ, Series A/B, no. 44) held, in so far as relevant: “[62] It should however be observed that, while on the one hand, according to generally accepted principles, a State cannot rely, as against another State, on the provisions of the latter’s Constitution, but only on international law and international obligations duly accepted, on the other hand and conversely, a State cannot adduce as against another State its own Constitution with a view to evading obligations incumbent upon it under international law or treaties in force...” The United Nations 122. The UN Special Rapporteur on the independence of judges and lawyers, Mr Diego García-Sayán undertook an official visit to Poland from 23 to 27 October 2017. The report of 5 April 2018 on his mission to Poland contains the following findings relating to the NCJ, in so far as relevant: “68. ... According to the new selection procedure, 21 members of the Council will now be appointed by the legislative branch, and 1 by the executive. The fact that judges will no longer have a decisive role in the appointment of the 15 judicial members of the Council puts the new election method at odds with relevant international and regional standards. In this regard, the Special Rapporteur notes that while the National Council of the Judiciary is not a judicial authority per se and does not exercise judicial functions, its role of safeguarding judicial independence in Poland requires that it be independent and impartial from the executive and legislative branches... 70. The new Act also provides that the mandate of all judicial members of the National Council of the Judiciary will be terminated at the moment of the election of the new members. This early termination decided by the legislative branch constitutes an additional interference with the independence of the Council and a breach of the principles of separation of powers and security of tenure. Coupled with the early termination of all the judicial members of the Council, the implementation of the new Act will lead to the creation of a ‘new’ National Council of the Judiciary dominated by political appointees, in contravention of existing standards on the independence of the judiciary and the separation of powers.” 123. The UN Special Rapporteur on the independence of judges and lawyers published a report on “Judicial Councils” on 2 May 2018. He made the following recommendations, in so far as relevant: “Establishment of judicial councils 92. In order to guarantee their independence from the executive and legislative branches and ensure effective self-governance for the judiciary, judicial councils should be established under the Constitution in those countries having a written Constitution, or in the equivalent basic law or constitutional instrument in other countries. The Constitution or the equivalent basic law should include detailed provisions regarding the setting-up of such a body and its composition and functions, and guarantee the autonomy of the council vis-à-vis the executive and legislative branches of power.” The Council of EuropeThe Committee of Ministers The Committee of Ministers The Committee of Ministers (a) Recommendation CM/Rec (2010)12 124. The relevant extracts from the appendix to Recommendation CM/Rec (2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities, adopted on 17 November 2010, provide: “ Chapter I – General aspects ... 4. The independence of individual judges is safeguarded by the independence of the judiciary as a whole. As such, it is a fundamental aspect of the rule of law. Chapter IV − Councils for the judiciary 26. Councils for the judiciary are independent bodies, established by law or under the constitution, that seek to safeguard the independence of the judiciary and of individual judges and thereby to promote the efficient functioning of the judicial system. 27. Not less than half the members of such councils should be judges chosen by their peers from all levels of the judiciary and with respect for pluralism inside the judiciary. ... Chapter VI – Status of the judge Selection and career ... 46. The authority taking decisions on the selection and career of judges should be independent of the executive and legislative powers. With a view to guaranteeing its independence, at least half of the members of the authority should be judges chosen by their peers. 47. However, where the constitutional or other legal provisions prescribe that the head of state, the government or the legislative power take decisions concerning the selection and career of judges, an independent and competent authority drawn in substantial part from the judiciary (without prejudice to the rules applicable to councils for the judiciary contained in Chapter IV) should be authorised to make recommendations or express opinions which the relevant appointing authority follows in practice.” (b) Council of Europe Plan of Action on Strengthening Judicial Independence and Impartiality 125. At the 1253rd meeting of the Ministers’ Deputies, on 13 April 2016, the Committee of Ministers adopted the Plan of Action on Strengthening Judicial Independence and Impartiality. The relevant extracts read as follows: “ Line of action 1 Safeguard and strengthen the judiciary in its relations with the executive and legislature Action 1.1 Ensure the independent and effective working of judicial councils or other appropriate bodies of judicial governance Remedial action by member States Measures should be taken to de-politicise the process of electing or appointing persons to judicial councils, where they exist, or other appropriate bodies of judicial governance. Members should not represent political factions or be politically partisan in the performance of their functions. They should also not be subject to, or be susceptible to, political influence either from the executive or legislature. Such measures might include rules on the minimum number of judicial members and procedures for election by their peers (at least half, not taking into account any ex ‑ officio members), or on the maximum number of non-judicial members (and how they are elected or selected) whilst ensuring that a majority or at least half of them are judicial members representing all levels of the judiciary; rules on the minimum length of prior judicial experience; rules on ensuring gender equality and representation of society as a whole and rules on character and probity. Members not appointed or elected by the judiciary should not represent the executive or legislature but should be appointed on the basis of their personal standing and in their own right. It is desirable that the membership of a judicial council should not include persons who hold their position de facto by virtue of an executive office or position in the legislature. The rules governing the composition of judicial councils or other appropriate bodies of judicial governance and how they conduct their business should be transparent and allow foreseeability. The same applies to the process of selecting, appointing and promoting judges. Of particular importance in this respect are the rules aimed at avoiding improper interference by the executive or legislature. Changes to the legal framework for the operation of judicial councils should not lead to the early termination of the mandates of persons elected under the previous framework, except when the change of the legal framework aims to reinforce the independence of the council’s composition.” The Parliamentary Assembly of the Council of Europe 126. The Parliamentary Assembly, in its resolution of 11 October 2017 on new threats to the rule of law in Council of Europe member States (Resolution 2188 (2017)), expressed concerns about developments in Poland which put respect for the rule of law at risk, and in particular the independence of the judiciary and the principle of the separation of powers. It called on the Polish authorities to, inter alia, refrain from amending the Act on the NCJ in a way that would modify the procedure for appointing judicial members of the Council and would establish political control over the appointment process of these members. It also called on the Polish authorities to refrain from implementing any legal provisions that would terminate the term of office of the judicial members of the Polish NCJ. 127. On 28 January 2020 the Parliamentary Assembly decided to open its monitoring procedure in respect of Poland. In its resolution of the same date entitled “The functioning of democratic institutions in Poland” (2316 (2020)), the Assembly stated, in so far as relevant: “7. The Assembly lauds the assistance given by the Council of Europe to ensure that the reform of the justice system in Poland is developed and implemented in line with European norms and rule of law principles in order to meet their stated objectives. However, it notes that numerous recommendations of the European Commission for Democracy through Law and other bodies of the Council of Europe have not been implemented or addressed by the authorities. ... The Assembly therefore calls upon the authorities to revisit the total reform package for the judiciary and amend the relevant legislation and practice in line with Council of Europe recommendations, in particular with regard to: ... 7.2. the reform of the National Council of the Judiciary, the Assembly expresses its concern about the fact that, counter to European rule of law standards, the 15 judges who are members of the National Council of the Judiciary are no longer elected by their peers but by the Polish Parliament. This runs counter to the principle of separation of powers and the independence of the judiciary. As a result, the National Council of the Judiciary can no longer be seen as an independent self-governing body of the judiciary. The Assembly therefore urges the authorities to reinstate the direct election, by their peers, of the judges who are members of the National Council of the Judiciary;” 128. On 26 January 2021 the Parliamentary Assembly adopted a resolution entitled “Judges in Poland and in the Republic of Moldova must remain independent” (2359 (2021)). The Assembly, referring to the concerns expressed in Resolution 2316 (2020), noted that “given the current composition of the National Council of the Judiciary and the judgment handed down by the CJEU on 19 November 2019, the NCJ can no longer be regarded as an autonomous body independent of the legislature and the executive”. The Assembly further called on the Polish authorities to, inter alia, “revert to the previous system of electing judicial members of the NCJ or adopt a reform of the justice system which would effectively ensure its autonomy from the political power”. The European Commission for Democracy through Law (Venice Commission) 129. The Venice Commission, in its report on the Independence of the Judicial System Part I: the Independence of Judges, adopted at its 82nd Plenary Session (Venice, 12-13 March 2010, CDL-AD(2010)004) observed, in so far as relevant: “ 32. To sum up, it is the Venice Commission’s view that it is an appropriate method for guaranteeing the independence of the judiciary that an independent judicial council have decisive influence on decisions on the appointment and career of judges. Owing to the richness of legal culture in Europe, which is precious and should be safeguarded, there is no single model which applies to all countries. While respecting this variety of legal systems, the Venice Commission recommends that states which have not yet done so consider the establishment of an independent judicial council or similar body. In all cases the council should have a pluralistic composition with a substantial part, if not the majority, of members being judges. With the exception of ex-officio members these judges should be elected or appointed by their peers. ” 130. The Venice Commission, in its Opinion on the Draft Amendments to the Organic Law on Courts of General Jurisdiction of Georgia, adopted at its 94th Plenary Session (Venice, 8-9 March 2013, CDL-AD(2013)007), addressed, inter alia, the proposed reform of the High Judicial Council. The relevant part of the Opinion read as follows: “ V. Transitional provisions – termination of functions of the current High Judicial Council of Georgia. 67. Paragraph 2 of Article 3 of the amendments provides that upon enactment of the Law “authority of the members of the High Council of Justice, except the chairman of the Supreme Court, is terminated”. 68. During the visit, it was explained to the delegation of the Venice Commission by the proponents of this measure, that they wish to do so because they regard the existing composition of the High Council of Justice as so flawed that any significant reform of the judiciary can only be achieved through a complete renewal of the Council. 69. The Commission recalls that an important function of judicial councils is to shield judges from political influence. For this reason, it would be inconsistent to allow for a complete renewal of the composition of a judicial council following parliamentary elections. 70. The Organic Law provides for a four-year term of office. This term does not appear to have a constitutional basis. Both the law in force and the draft amendments establish an exhaustive list of the grounds for pre-term termination of the mandate of the members of the High Council of Justice. Neither of them includes norms which expressly provide or can be interpreted in the way that the mandate of the members of the High Council of Justice can be terminated when the procedure for appointment is changed. 71. The Venice Commission is of the opinion that when using its legislative power to design the future organisation and functioning of the judiciary, Parliament should refrain from adopting measures which would jeopardise the continuity in membership of the High Judicial Council. 72. Removing all members of the Council prematurely would set a precedent whereby any incoming government or any new Parliament, which did not approve of either the composition or the membership of the Council could terminate its existence early and replace it with a new Council [footnote omitted]. In many circumstances such a change, especially on short notice, would raise a suspicion that the intention behind it was to influence cases pending before the Council. While the Commission was informed that there are no cases pending in Georgia, any such change must be regarded with concern. ... 74. The Commission is cognisant of the dilemma which the Georgian authorities face. Nevertheless, even though the composition of the current High Council of Justice seems unsatisfactory, the Venice Commission recommends that the members complete their mandate. However, it would seem possible to apply transitory measures which would bring the current Council closer to the future method of composition, ...” 131. The relevant extracts from the Rule of Law Checklist, adopted by the Venice Commission at its 106th Plenary Session (11-12 March 2016, CDL ‑ AD(2016)007) [15], read as follows: “81. ’[I]t is an appropriate method for guaranteeing the independence of the judiciary that an independent judicial council have decisive influence on decisions on the appointment and career of judges’. Judicial councils ‘should have a pluralistic composition with a substantial part, if not the majority, of members being judges.’ [footnote omitted]. That is the most effective way to ensure that decisions concerning the selection and career of judges are independent from the government and administration. [footnote omitted]. There may however be other acceptable ways to appoint an independent judiciary. 82. Conferring a role on the executive is only permissible in States where these powers are restrained by legal culture and traditions, which have grown over a long time, whereas the involvement of Parliament carries a risk of politicisation [footnote omitted]. Involving only judges carries the risk of raising a perception of self-protection, self-interest and cronyism. As concerns the composition of the judicial council, both politicisation and corporatism must be avoided [footnote omitted]. An appropriate balance should be found between judges and lay members [footnote omitted]. The involvement of other branches of government must not pose threats of undue pressure on the members of the Council and the whole judiciary. [footnote omitted].” 132. The Venice Commission, in its Opinion on the Draft Act Amending the Act on the National Council of the Judiciary, on the Draft Act Amending the Act on the Supreme Court proposed by the President of Poland and on the Act on the Organisation of Ordinary Courts, which it adopted at its 113 th Plenary Session (Venice, 8-9 December 2017, CDL-AD(2017)031), observed, in so far as relevant: “17. In the past decades many new European democracies created judicial councils – compound bodies with functions regarding the appointment, training, promotion and discipline of judges. The main function of such a body is to ensure the accountability of the judiciary, while preserving its independence [footnote omitted]. The exact composition of the judicial councils varies, but it is widely accepted that at least half of the council members should be judges elected by their peers [footnote omitted]. The Venice Commission recalls its position expressed in the Rule of Law Checklist, in the Report of the Judicial Appointments and in the Report on the Independence of the Judicial System (Part I: The Independence of Judges) to the effect that ‘a substantial element or a majority of the members of the Judicial Council should be elected by the Judiciary itself’ [footnote omitted]. 18. The ‘democratic element’ of such councils is usually represented by lay members, elected by Parliament or appointed otherwise. Judicial members, by contrast, are elected by other judges and hence have no strong political affiliation [footnote omitted]. Thus, the current composition of the Polish NCJ is in this regard in harmony with this prevailing European standard. ... 24. In any event, the proposal by the President is still at odds with the European standards (as far as those countries which have a judicial council are concerned), since the 15 judicial members are not elected by their peers, but receive their mandates from Parliament. Given that six other members of the NCJ are parliamentarians, and four others are ex officio members or appointed by the President of the Republic..., the proposed reform will lead to a NCJ dominated by political nominees. Even if several ‘minority candidates’ are elected, their election by Parliament will inevitably lead to more political influence on the composition of the NCJ and this will also have immediate influence on the work of this body, which will become more political in its approach. ... 2. Early termination of the mandate of the current members of the NCJ 28. Article 6 of the Draft Act provides for early termination of mandates of all judicial members of the NCJ at the moment of the election of new members. According to the [Polish authorities’] Memorandum, this measure is called for by the judgment of the Constitutional Court of 20 June 2017 [footnote omitted]. In that judgment the Tribunal held, in particular, that all judicial members of the NCJ should have the same term of office. The Draft Act, proposed by the President, in Article 1 (new Article 9a § 1) speaks of the ‘joint term of office’ of the judicial members of the NCJ. That implies that all mandates will start and end simultaneously, and that the composition of the NCJ should be fully renewed every 4 years. 29. The very idea of a ‘joint term of office’ is open to criticism. Desynchronised terms of office are a common feature in collegiate bodies in Europe. They help to preserve institutional memory and continuity of such bodies. Moreover, they contribute the internal pluralism and hence to the independence of these bodies: where members elected by different terms of Parliament work alongside each other, there are better chances that they would be of different political orientation. By contrast, simultaneous replacement of all members may lead to a politically uniform NCJ [footnote omitted]. 30. But even assuming that a ‘joint term of office’ is politically legitimate, this aim may be achieved otherwise, in a way which does not interfere with the term of office of the current members. The judgment of the Constitutional Tribunal does not call for the simultaneous removal of all currently serving judicial members. The currently serving judicial members may remain in their positions until the original term of their mandate expires, while new members (i.e. those elected under the new rules) could be elected for a shorter period, ensuring that at some point in future the whole composition of the NCJ will be renewed simultaneously [footnote omitted]. This solution will not only respect the security of tenure but also better ensure the institutional continuity of the body [footnote omitted]. 31. In sum, the proposed change in the manner of appointment of the 15 judicial members of the NCJ, in conjunction with their immediate replacement, is going to weaken the independence of the Council with regard to the majority in Parliament. Against the background of other reforms in the field of the judiciary..., this measure contributes to a weakening of the independence of justice as a whole. Therefore, the Venice Commission urges the Polish authorities to abandon this proposal and keep the current system, which combines election of lay members by Parliament and election of the judicial members of the NCJ by the judges themselves. ... IV. Conclusions 128. The officially stated goal of the 2017 amendments (both adopted and those which are being discussed) is to enhance the democratic control over the Polish judiciary. The Venice Commission has always stated that the judiciary should not be an entirely self-governing corporation but accountable to the society. However, mechanisms of accountability should not interfere with the independence of the judges, and of the bodies of judicial governance. The judiciary should be insulated from quickly changing political winds. The courts have often to adjudicate on conflicts between individual rights and the State, and that relationship is imperilled when the State takes over the control of judicial functions. 129. The Venice Commission has examined the Act on Ordinary Courts, the Draft Act on the National Council of the Judiciary, and the Draft Act on the Supreme Court, proposed by the President of the Republic. It has come to the conclusion that the Act and the Draft Acts, especially taken together and seen in the context of the 2016 Act on the Public Prosecutor’s Office, enable the legislative and executive powers to interfere in a severe and extensive manner in the administration of justice, and thereby pose a grave threat to the judicial independence as a key element of the rule of law. 130. Several key aspects of the reform raise particular concern and call for the following recommendations: A. The Presidential Draft Act on the National Council of the Judiciary The election of the 15 judicial members of the National Council of the Judiciary (the NCJ) by Parliament, in conjunction with the immediate replacement of the currently sitting members, will lead to a far-reaching politicisation of this body. The Venice Commission recommends that, instead, judicial members of the NCJ should be elected by their peers, as in the current Act.” 133. On 18 June 2020 the Venice Commission endorsed by written procedure replacing the 123rd Plenary Session its and the Directorate General of Human Rights and Rule of Law (DGI) of the Council of Europe Joint Urgent Opinion (CDL-AD(2020)017) on Amendments to the Law on the Common Courts, the Law on the Supreme Courts and Some Other Laws. The relevant extracts of the Opinion read as follows: “ A. Judicial reform of 2017 – an outline 8. The stated goal of the 2017 reform was to enhance the democratic accountability of the Polish judiciary. However, in the 2017 Opinion the Venice Commission concluded that, instead, this reform jeopardised the judicial independence and “enabled the legislative and executive powers to interfere in a severe and extensive manner in the administration of justice” (§ 129 of the 2017 Opinion) [footnote omitted]. As a result of the 2017 reform: • The judicial community in Poland lost the power to delegate representatives to the NCJ, and hence its influence on recruitment and promotion of judges. Before the 2017 reform 15 (out of 25) members of the NCJ were judges elected by their peers. Since the 2017 reform those members are elected by Parliament. Taken in conjunction with the immediate replacement, in early 2018, of all the members appointed under the old rules, this measure led to a far-reaching politicisation of the NCJ; ... 9. It should be stressed that the Venice Commission never advocated a self-governing judiciary as a general standard, and that it is very much conscious of the diversity of legal systems in Europe in this respect. There are democratic countries where the judiciary is independent even though judicial appointments are made by the executive. Nevertheless, the Venice Commission has always welcomed that practically all new democracies, where in the recent history the judiciary was subordinated to other branches of power, have established judicial councils [footnote omitted]. Such councils help in ensuring that the judicial community may make a meaningful input in decisions concerning judges [footnote omitted]. This was the choice made by the Polish constituent assembly, which is reflected in Article 186 of the Polish Constitution stating that “the NCJ shall safeguard the independence of courts and judges”, as well is in Article 187 which provides that 15 members of the Council should be chosen “from among the judges”. 10. The simultaneous and drastic reduction of the involvement of judges in the work of the National Council for the Judiciary, filling the new chambers of the Supreme Court with newly appointed judges, mass replacement of court presidents, combined with the important increase of the powers of the President of the Republic and of the Minister of Justice/Prosecutor General – and this was the result of the 2017 reform – was alarming and led to the conclusion that the 2017 reform significantly reduced the independence of the Polish judiciary vis-à-vis the Government and the ruling majority in Parliament. ... 61. ... In order to avoid further deepening of the crisis, the Venice Commission invites the Polish legislator to seriously consider the implementation of the main recommendations contained in the [December] 2017 Opinion of the Venice Commission, namely: • to return to the election of the 15 judicial members of the NCJ not by Parliament but by their peers; ... • to restore the powers of the judicial community in the questions of appointments, promotions, and dismissal of judges; ...” The Council of Europe Commissioner for Human Rights 134. The Commissioner for Human Rights, Ms Dunja Mijatović carried out a visit to Poland from 11 to 15 March 2019. The report from her visit, published on 28 June 2019, reads in so far as relevant: “ 1.2 Changes affecting the National Council for the Judiciary ... 16. On her part, the Commissioner regrets the retroactive shortening of the constitutional terms of duty of all serving members of the National Council for the Judiciary, a move which was found by the Consultative Council of European Judges of the Council of Europe (CCJE) to be “not in accordance with European standards for judicial independence”, and was criticised in the same vein by the above-mentioned UN Special Rapporteur. She considers that the former members of the Council should have been allowed to serve out their full mandates according to their constitutional duration. According to the 2016 joint report by the CCJE and the Consultative Council of European Prosecutors of the Council of Europe (CCPE), “the independence of judges and prosecutors can be infringed by weakening the competences of the Council for the Judiciary, ... or by changing its composition” (paragraph 12). ... 1.2.1 Conclusions and Recommendations 18. The Commissioner recalls that councils for the judiciary are independent bodies that seek to safeguard the independence of the judiciary and of individual judges and thereby to promote the efficient functioning of the judicial system (paragraph 26 of the aforementioned recommendation of the Committee of Ministers CM/Rec(2010)12). She considers that the collective and individual independence of the members of such bodies is directly linked, and complementary to, the independence of the judiciary as a whole, which is a key pillar of any democracy and essential to the protection of individual rights and freedoms. 19. The Commissioner considers that serious concerns remain with regard to the composition and independence of the newly constituted National Council for the Judiciary. She observes that under the new rules, 21 out of the 25 members of the body have been elected by Poland’s legislative and executive powers; this number includes the body’s 15 judicial members, who have been elected by the Sejm. 20. The Commissioner considers that entrusting the legislature with the task of electing the judicial members to the National Council for the Judiciary infringes the independence of this body, which should be the constitutional guarantor of judicial independence in Poland. She considers that the selection of members of the judiciary should be a decision process independent of the executive or the legislature, in order to preserve the principles of separation of powers and the independence of the judiciary, and to avoid the risk of undue political influence. 21. For these reasons, the Commissioner encourages the Polish authorities to bring the legislation governing the composition and the process of selecting the judicial members of the National Council for the Judiciary in line with the above-mentioned Council of Europe standards and the Polish Constitution, in particular by ensuring that the fifteen judicial members of the body are duly elected by a wide representation of their peers and not by the legislative branch.” The Consultative Council of European Judges (“the CCJE”) (a) Opinion no. 10 (2007) 135. Opinion no. 10 (2007) of the CCJE to the attention of the Committee of Ministers of the Council of Europe on the Council for the Judiciary at the service of society adopted on 23 November 2007 reads, in so far as relevant: “II. General mission: to safeguard the independence of the judiciary and the rule of law 8. The Council for the Judiciary is intended to safeguard both the independence of the judicial system and the independence of individual judges. The existence of independent and impartial courts is a structural requirement of a state governed by the rule of law. ... III. Membership: to enable an optimum functioning of an independent and transparent council for the judiciary III. A. A Council for the Judiciary composed by a majority of judges 15. The composition of the Council for the Judiciary shall be such as to guarantee its independence and to enable it to carry out its functions effectively. ... 17. When the Council for the Judiciary is composed solely of judges, the CCJE is of the opinion that these should be judges elected by their peers. 18. When there is a mixed composition (judges and non-judges), the CCJE considers that, in order to prevent any manipulation or undue pressure, a substantial majority of the members should be judges elected by their peers. 19. In the CCJE’s view, such a mixed composition would present the advantages both of avoiding the perception of self-interest, self-protection and cronyism and of reflecting the different viewpoints within society, thus providing the judiciary with an additional source of legitimacy. However, even when membership is mixed, the functioning of the Council for the Judiciary shall allow no concession at all to the interplay of parliamentary majorities and pressure from the executive, and be free from any subordination to political party consideration, so that it may safeguard the values and fundamental principles of justice. ... III. C. Selection methods III. C. 1. Selection of judge members 25. In order to guarantee the independence of the authority responsible for the selection and career of judges, there should be rules ensuring that the judge members are selected by the judiciary.” (b) Magna Carta of Judges 136. The Magna Carta of Judges (Fundamental Principles) was adopted by the CCJE in November 2010. The relevant section reads as follows: “Body in charge of guaranteeing independence 13. To ensure independence of judges, each State shall create a Council for the Judiciary or another specific body, itself independent from legislative and executive powers, endowed with broad competences for all questions concerning their status as well as the organisation, the functioning and the image of judicial institutions. The Council shall be composed either of judges exclusively or of a substantial majority of judges elected by their peers. The Council for the Judiciary shall be accountable for its activities and decisions.” (c) Opinion of the CCJE Bureau of 12 October 2017 137. Following a request of the Polish NCJ, on 12 October 2017 the CCJE Bureau adopted its Opinion on the Draft Act on the NCJ submitted by the President of Poland (see paragraphs 46-48 above). The Opinion stated, in so far as relevant: “ E. The most significant changes introduced by the Draft Act presented by the President of Poland 11. Thus, the most significant concerns caused by the adopted and later vetoed act on the Council related to: - the selection methods for judge members of the Council; - the pre-term removal of the judges currently sitting as members of the Council; - ... 12. Out of these concerns, the only significant change in the present draft ... is the requirement for a majority of 3/5 in the Sejm for electing 15 judge members of the Council. However, this does not change in any way the fundamental concern of transferring the power to appoint members of the Council from the judiciary to the legislature, resulting in a severe risk of politicised judge members as a consequence of a politicised election procedure [footnote omitted]. This risk may be said to be even greater with the new draft, since it provides that if a 3/5 majority cannot be reached, those judges having received the largest number of votes will be elected. 13. Furthermore, since the President of Poland proposes, as in the previous draft, that the Sejm also elects 15 judge members of the Council, in addition to 4 ex officio members of the Council and 6 members presently elected by Parliament from among MPs, this effectively means that almost all members of the Council would be elected by the Parliament. Such a proposal contradicts the Council of Europe’s standards for judicial self-governing bodies such as councils for the judiciary. 14. The CCJE Bureau reiterates that by its Recommendation CM/Rec(2010)12 on Judges: independence, efficiency and responsibilities, the Committee of Ministers of the Council of Europe took the position that not less than half the members of Councils for the Judiciary should be judges chosen by their peers from all levels of the judiciary and with respect for pluralism inside the judiciary [footnote omitted]. This is also reflected in the Opinions of the CCJE and other relevant bodies at the European level set up in order to safeguard the rule of law and the basic principles for judicial independence and impartiality. The Venice Commission has particularly advocated that judicial members of a Council for the Judiciary should be elected or appointed by their peers [footnote omitted]. Furthermore, the proposed new method for selecting judge members contradicts the principles set out in the Council of Europe Plan of Action on Strengthening Judicial Independence and Impartiality [footnote omitted]. ... 16. As regards the term of office of members of the Council, the new draft foresees, similarly to the previous draft, the pre-term termination of the mandate of the 15 judges who are currently members of the Council. They will serve in the Council only until the election of the new 15 members by the Sejm. 17. The CCJE has underlined in general that a member of any Council for the Judiciary, which is a constitutional body entrusted with a mission of fundamental importance for the independence of the judiciary, should only be removed from office following the application - as a minimum - of those safeguards and procedures that would apply when consideration is being given to a removal from office of an ordinary judge. The procedure in the case of pre-term removal should be transparent and any risk of political influence should be firmly excluded, which is not the case either in the previous or in the new draft. ... F. Conclusions 20. The Bureau of the CCJE, which represents the CCJE members who are serving judges from all Council of Europe member States, reiterates once again that the Draft Act would be a major step back as regards judicial independence in Poland. ... 21. In order to fulfil European standards on judicial independence, the judge members of the National Council of the Judiciary of Poland should continue to be chosen by the judiciary. Moreover, the pre-term removal of the judges currently sitting as members of the Council is not in accordance with European standards and it endangers basic safeguards for judicial independence. 22. The Bureau of the CCJE is deeply concerned by the implications of the Draft Act for the principle of the separation of powers, as well as that of the independence of the judiciary, as it effectively means transferring the power to appoint members of the Polish National Council of the Judiciary from the judiciary to the legislature. The CCJE Bureau recommends that the Draft Act be withdrawn and that the existing law remain in force. Alternatively, any new draft proposals should be fully in line with the standards of the Council of Europe regarding the independence of the judiciary.” 138. On 10 November 2017 the CCJE confirmed the above-mentioned Opinion of the CCJE Bureau. (d) Opinion no. 24 (2021) 139. Opinion no. 24 (2021) of the CCJE on the Evolution of the Councils for the Judiciary and Their Role in Independent and Impartial Judicial Systems, adopted on 5 November 2021 states, in so far as relevant: “ II. Tasks, organisation and composition of Councils for the Judiciary 1. The tasks of a Council for the Judiciary 19. The CCJE accepts that there is not one single model for a Council for the Judiciary. However, every Council should have adequate competences to defend the independence of the judiciary and individual judges [footnote omitted], so that individual judges are free to decide cases without undue influence from outside and inside the judiciary [footnote omitted]. Judicial independence requires special protection in decisions which have an effect on judicial decision making, such as the selection of judges, ... Where it has such responsibilities, a Council for the Judiciary should ensure that such decisions are made in a way that protects and enhances judicial independence. ... 2. Composition of a Council for the Judiciary ... 29. The CCJE recommends that Councils for the Judiciary should be composed of a majority of judges elected by their peers. Other members may be added depending on the functions of the Councils. The CCJE recommends that a Council also have non-judicial members possibly including lay persons who are not legal professionals [footnote omitted]. While judges should always be in the majority, non-judicial members preferably with voting rights ensure a diverse representation of society, decreasing the risk of corporatism [footnote omitted]. The participation of lay persons may increase legitimacy and fight the perception of the judiciary as a “lawyers-only affair”. The CCJE takes a more nuanced view in this respect than in Opinion No. 10 (2007). 3. Selection of members and chair of a Council for the Judiciary 30. The CCJE wishes to strongly reaffirm that the majority of members should be judges elected by their peers, guaranteeing the widest possible representation of courts and instances [footnote omitted], as well as diversity of gender [footnote omitted] and regions. Elected judges should be able to participate in the Council’s activities in a way compatible with their workload. Where the Council includes non-judges, they should be able to devote adequate time to participation in the Council’s activities. 31. An election of judge members by parliament or selection by the executive must be avoided [footnote omitted]. An election by parliament of non-judicial members might, however, be acceptable. As an alternative an election or nomination by institutions such as Bar Associations or nomination by NGOs is a possibility. 32. By whatever means members are selected and appointed [footnote omitted], this should not be done for political reasons. ... Members of the Council for the Judiciary should not be under the authority or influence of others. ... 4. Security of tenure of members of a Council for the Judiciary 36. Members should be selected for a fixed time in office and must enjoy adequate protection for their impartiality and independence [footnote omitted]. Members must be protected from internal and external pressures. However, except, in cases of death, retirement or removal from office, for example as a result of disciplinary action, a member’s term should only end upon the lawful election of a successor to ensure that the Council is able to exercise its duties lawfully even if the appointment of new members has failed, because of a deadlock in parliament [footnote omitted]. CCJE draws attention to the possible impact of re-election on the independence of the members of a Council for the Judiciary. ... Continuity and efficiency can be improved if not all terms of office expire simultaneously. 37. The CCJE wishes to reaffirm the importance of security of tenure of all Council members as such [footnote omitted] as a crucial precondition for the independence of the Council. Judges appointed to the Council for the Judiciary should be protected with the same guarantees as those granted to judges exercising jurisdictional functions, including the conditions of service and tenure and the right to a fair hearing in case of discipline, suspension, and removal [footnote omitted]. Non-judicial members should have equivalent protection. ... 38. Members may only be removed from office based on proven serious misconduct in a procedure in which their rights to a fair trial are guaranteed. Members may cease to be members in the event of incapacity or loss of the status on the basis of which they were elected or appointed to the Council. If the Council itself or a special body within it are responsible for this decision, the rights of the dismissed member to an appeal must be ensured. The CCJE underlines the importance that procedures which may lead directly or indirectly to termination of office are not misused for political purposes but respect fair trial rights [footnote omitted]. In this respect, this Opinion amplifies Opinion No. 10 (2007).” Group of States against Corruption (“GRECO”) 140. Following considerable amendments to legislation affecting the judiciary in Poland in 2016/2017, GRECO decided at its 78 th Plenary Meeting (4-8 December 2017) to apply an ad hoc procedure in respect of Poland. This procedure can be triggered in exceptional circumstances, such as when GRECO receives reliable information concerning institutional reforms, legislative initiatives or procedural changes that may result in serious violations of anti-corruption standards of the Council of Europe. 141. The relevant extracts from the Addendum to the Fourth Round Evaluation Report on Poland, adopted by Greco at its 80th Plenary Meeting (Strasbourg, 18-22 June 2018, Greco-AdHocRep(2018)3), read as follows: “26. ... The Polish authorities indicate that these amendments [the 2017 Amending Act] were made to ensure a better representation of the whole judiciary in the NCJ (in light of the underrepresentation of district court judges in the past) and to make the NCJ more democratic in order to counter corporatism [footnote omitted]. ... 27. ... The GET [Greco Evaluation Team] regrets the enforcement of the simultaneous dismissal of the judicial members of the NCJ and the fact that it was not possible for judicial members to challenge the dismissals. The GET takes the view that it would have been possible to achieve the aim of “the same term of office” for NCJ members, as required by a judgment of the Constitutional Tribunal, without the pre-term dismissal of all serving judicial members [footnote omitted]. New elections of the 15 judge members took place on 7 March 2018. Only 18 judges stood for election, 17 of which were proposed by groups of 25 judges and one by a group of more than 2000 citizens. The GET was informed that a large part of the judiciary had boycotted the elections, as had several opposition parties in the Sejm, and that most of the new judge members were at the time judges seconded to the Ministry of Justice or presidents of courts who had recently been appointed by the Minister (which reportedly was similar for judge members of the previous NCJ) [footnote omitted]. ... 28. While the GET takes note of the stated aim of making the NCJ more representative of the judiciary, it considers that this could and should have been done through other means. It also notes that despite this aim the 15 judge members chosen by the Sejm do not include any judges from courts of appeal, military courts, the Supreme Court or Supreme Administrative Court (other than ex officio members). The current method for electing judge members to the NCJ limits considerably the influence of the judiciary on these elections in favour of the legislature. ... 29. The GET takes note of these points, but at the same time cannot disregard the fact that effectively 21 of the 25 members of the NCJ are now elected by Parliament (a majority of which by the ruling party). The GET maintains that, following the 2017 [Amending Act], the election of representatives of the judiciary to the NCJ is no longer in compliance with Council of Europe standards, nor with GRECO’s well-established practice, which require that at least half of the members of a judicial council should consist of judges elected by their peers, as was the case in Poland before the amending law was adopted [footnote omitted]. This is particularly problematic in light of the NCJ’s central role in the process of appointing judges in Poland. In view of the above, GRECO recommends that the provisions on the election of judges to the National Council of the Judiciary be amended, to ensure that at least half of the members of the National Council of the Judiciary are judges elected by their peers.” (bold in the original) 142. In December 2019 GRECO assessed whether Poland had implemented any of the recommendations it issued in the Addendum to the Fourth Round Evaluation Report of June 2018. In its report GrecoRC4(2019)23 adopted at its 84th Plenary Meeting (Strasbourg, 2 ‑ 6 December 2019), GRECO stated as follows: “ Rule 34 recommendation i. 30. GRECO recommended that the provisions on the election of judges to the NCJ be amended, to ensure that at least half of the members of the NCJ are judges elected by their peers. 31. The authorities did not provide any information on measures taken to implement this recommendation. 32. GRECO regrets ─ in particular given the NCJ central role in the process of appointing judges in Poland ... ─ that no steps were taken to amend the Law on the NCJ, to ensure that at least half of the members of the NCJ are judges elected by their peers. GRECO maintains its position, as outlined in the Rule 34 Report, that the current composition of the NCJ (whereby effectively 21 out of 25 members of the NCJ are being elected by Parliament) is not in compliance with Council of Europe standards. 33. GRECO concludes that Rule 34 recommendation i has not been implemented.” 143. In its Interim Compliance Report GrecoRC4(2021)18 adopted at is 88th Plenary Meeting (Strasbourg, 20-22 September 2021), GRECO concluded that Rule 34 recommendation i remained not implemented (see paragraph 142 above). The Office for Democratic Institutions and Human Rights of the Organization for Security and Cooperation in Europe (OSCE/ODIHR) 144. The OSCE/ODIHR prepared its Final opinion on Draft Amendments to the Act on the National Council of the Judiciary and Certain Other Acts of Poland of 5 May 2017 upon a request received from the Chairperson of the NCJ [16]. The Final Opinion read, in so far as relevant: “ 3.1. The Modalities of Appointing Judge Members of the Judicial Council 3.1.1. Appointing Authority 34. Article 1 [paragraphs] 1-3 of the Draft Act proposes to replace the existing selection methods with a procedure whereby the fifteen judges sitting on the Judicial Council will be chosen by the Sejm. ... 37. In principle, judicial councils or other similar bodies are crucial to support and guarantee the independence of the judiciary in a given country, and as such should themselves be independent and impartial, i.e., free from interference from the executive and legislative branches. Indeed, interfering with the independence of bodies, which are guarantors of judicial independence, could as a consequence impact and potentially jeopardize the independence of the judiciary in general. As is the case in Poland..., such councils are generally in charge of key issues pertaining to the independence of judges, particularly judicial appointments and promotion, and also represent the interests of the judiciary as a whole, in particular vis-à-vis the executive and legislative powers. ... 40. The approach of the Draft Act, which places the procedure of appointing members of the Judicial Council primarily in the hands of the other two powers, namely the executive and/or the legislature (apart from the ex officio members, 21 members would now be appointed by the legislative branch and one by the executive), increases the influence of these powers over the appointment process of its members, thereby threatening the independence of the Judicial Council, and as a consequence, judicial independence overall as guaranteed by Article 173 of the Constitution. ... 42. The principle of having judge members of judicial councils selected by their peers exists primarily to prevent any manipulation or undue pressure from the executive or legislative branches, and to ensure that judicial councils are free from any subordination to political party considerations, so as to be able to perform their roles of safeguarding the independence of the judiciary and of judges. ... 47. Based on the foregoing, it is recommended that Articles 1(1) – 1(3) of the Draft Act be reconsidered and that judicial members of the Judicial Council continue to be chosen by the judiciary ... 5. The Termination of the Mandate of Current Judge Members of the Judicial Council 81. The early termination of the mandate of judges duly elected to a constitutional body, for no legitimate reason other than an amendment to relevant legislation, raises concerns with regard to respect of the independence of such a body, and as a consequence of the judiciary as a whole. 82 In this context, it is noted that Article 14 of the 2011 Act lists a number of limited circumstances in which the early termination of members of the Judicial Council is possible. The list therein does not, however, include amendments to relevant legislation. ... In principle, the removal of a member before the expiration of his or her mandate should be possible only for the reasons specified in the respective law, and Parliament should refrain from adopting measures which would have a direct and immediate effect on the composition of the Judicial Council. Generally, and while noting that the judge members to the Council will not lose their status of judge, the early termination of the mandates of judge members of judicial councils should be guided by similar safeguards and principles. These principles advise for clearly established and transparent procedures and safeguards, based on clear and objective criteria, in order to exclude any risk of political influence on judges’ early removal from office. This means that judge members’ appointments should only be reconsidered if some breach of disciplinary rules or the criminal law by the individual judges sitting on the Council is clearly established, following proper disciplinary or judicial procedures. ... 85. In light of the above, it is recommended to remove Article 5 par 1 from the Draft Act, so that members of the Judicial Council may serve their full term of office, all the more since there do not seem to be any legal or other compelling reasons justifying the early termination of their mandates.” EUROPEAN UNION LAWThe Treaty on European Union The Treaty on European Union The Treaty on European Union 145. Article 2 of the Treaty on European Union (“the TEU”) reads as follows: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.” 146. Article 19 § 1 of the TEU provides: “The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed. Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.” The Charter of Fundamental Rights 147. Title VI of the Charter, under the heading ‘Justice’, includes Article 47 thereof, entitled ‘Right to an effective remedy and to a fair trial’, which states as follows: “Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. ...” Case-law of the CJEUJudgment of 27 February 2018 in Associação Sindical dos Juízes Portugueses v Tribunal de Contas, C-64/16, EU:C:2018:117 Judgment of 27 February 2018 in Associação Sindical dos Juízes Portugueses v Tribunal de Contas, C-64/16, EU:C:2018:117 Judgment of 27 February 2018 in Associação Sindical dos Juízes Portugueses v Tribunal de Contas, C-64/16, EU:C:2018:117 148. The request for a preliminary ruling was made in proceedings between the Associação Sindical dos Juízes Portugueses (ASJP) and the Tribunal de Contas (Court of Auditors, Portugal) concerning the temporary reduction in the remuneration paid to that court’s members, in the context of Portugal’s budgetary policy guidelines. In finding that the principle of judicial independence in Article 19(1) TEU does not preclude general salary ‑ reduction measures, such as those at issue in those proceedings, the CJEU reasoned as follows: “30. According to Article 2 TEU, the European Union is founded on values, such as the rule of law, which are common to the Member States in a society in which, inter alia, justice prevails. In that regard, it should be noted that mutual trust between the Member States and, in particular, their courts and tribunals is based on the fundamental premiss that Member States share a set of common values on which the European Union is founded, as stated in Article 2 TEU (see, to that effect, Opinion 2/13 (Accession of the European Union to the ECHR), of 18 December 2014, EU:C:2014:2454, paragraph 168). ... 32. Article 19 TEU, which gives concrete expression to the value of the rule of law stated in Article 2 TEU, entrusts the responsibility for ensuring judicial review in the EU legal order not only to the Court of Justice but also to national courts and tribunals (see, to that effect, Opinion 1/09 (Agreement creating a Unified Patent Litigation System), of 8 March 2011, EU:C:2011:123, paragraph 66; judgments of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C ‑ 583/11 P, EU:C:2013:625, paragraph 90, and of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C ‑ 456/13 P, EU:C:2015:284, paragraph 45). ... 34. The Member States are therefore obliged, by reason, inter alia, of the principle of sincere cooperation, set out in the first subparagraph of Article 4(3) TEU, to ensure, in their respective territories, the application of and respect for EU law (see, to that effect, Opinion 1/09 (Agreement creating a Unified Patent Litigation System), of 8 March 2011, EU:C:2011:123, paragraph 68). In that regard, as provided for by the second subparagraph of Article 19(1) TEU, Member States are to provide remedies sufficient to ensure effective judicial protection for individual parties in the fields covered by EU law. It is, therefore, for the Member States to establish a system of legal remedies and procedures ensuring effective judicial review in those fields (see, to that effect, judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C ‑ 583/11 P, EU:C:2013:625, paragraphs 100 and 101 and the case-law cited). 35. The principle of the effective judicial protection of individuals’ rights under EU law, referred to in the second subparagraph of Article 19(1) TEU, is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and which is now reaffirmed by Article 47 of the Charter (see, to that effect, judgments of 13 March 2007, Unibet, C ‑ 432/05, EU:C:2007:163, paragraph 37, and of 22 December 2010, DEB, C ‑ 279/09, EU:C:2010:811, paragraphs 29 to 33). 36. The very existence of effective judicial review designed to ensure compliance with EU law is of the essence of the rule of law (see, to that effect, judgment of 28 March 2017, Rosneft, C ‑ 72/15, EU:C:2017:236, paragraph 73 and the case-law cited). 37. It follows that every Member State must ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, come within its judicial system in the fields covered by that law, meet the requirements of effective judicial protection. 38. In that regard, the Court notes that the factors to be taken into account in assessing whether a body is a ‘court or tribunal’ include, inter alia, whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (judgment of 16 February 2017, Margarit Panicello, C ‑ 503/15, EU:C:2017:126, paragraph 27 and the case-law cited). ... 42. The guarantee of independence, which is inherent in the task of adjudication (see, to that effect, judgments of 19 September 2006, Wilson, C ‑ 506/04, EU:C:2006:587, paragraph 49; of 14 June 2017, Online Games and Others, C ‑ 685/15, EU:C:2017:452, paragraph 60; and of 13 December 2017, El Hassani, C ‑ 403/16, EU:C:2017:960, paragraph 40), is required not only at EU level as regards the Judges of the Union and the Advocates-General of the Court of Justice, as provided for in the third subparagraph of Article 19(2) TEU, but also at the level of the Member States as regards national courts. ... 44. The concept of independence presupposes, in particular, that the body concerned exercises its judicial functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, and that it is thus protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions (see, to that effect, judgments of 19 September 2006, Wilson, C ‑ 506/04, EU:C:2006:587, paragraph 51, and of 16 February 2017, Margarit Panicello, C ‑ 503/15, EU:C:2017:126, paragraph 37 and the case-law cited).” Judgment of 19 November 2019 in A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C ‑ 585/18, C ‑ 624/18 and C ‑ 625/18, EU:C:2019:982 149. Between August and October 2018 the Labour and Social Security Chamber of the Supreme Court made three requests to the CJEU for a preliminary ruling in cases pending before that court which arose in connection with the lowering of the retirement age for judges of the Supreme Court in the new Act on the Supreme Court adopted in December 2017. This rule was also applicable to judges of the Supreme Administrative Court. The cases in question involved proceedings brought by a judge of the Supreme Administrative Court (A.K.) against the NCJ, and proceedings brought by two Supreme Court judges (C.P. and D.O.) against the President of the Republic. The requests concerned, inter alia, the issue whether the newly established Disciplinary Chamber of the Supreme Court that was to have jurisdiction in such cases could be regarded as an independent court under EU law in light of the fact that it was composed of judges selected by the new NCJ. 150. On 19 November 2019 the CJEU delivered its preliminary ruling. It held, in so far as relevant: “Article 47 of the Charter of Fundamental Rights of the European Union and Article 9(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding cases concerning the application of EU law from falling within the exclusive jurisdiction of a court which is not an independent and impartial tribunal, within the meaning of the former provisions. That is the case where the objective circumstances in which that court was formed, its characteristics and the means by which its members have been appointed are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that court to external factors, in particular, as to the direct or indirect influence of the legislature and the executive and its neutrality with respect to the interests before it and, thus, may lead to that court not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society must inspire in subjects of the law. It is for the referring court to determine, in the light of all the relevant factors established before it, whether that applies to a court such as the Disciplinary Chamber of the Supreme Court. If that is the case, the principle of the primacy of EU law must be interpreted as requiring the referring court to disapply the provision of national law which reserves jurisdiction to hear and rule on the cases in the main proceedings to the abovementioned chamber, so that those cases may be examined by a court which meets the abovementioned requirements of independence and impartiality and which, were it not for that provision, would have jurisdiction in the relevant field.” 151. On the interaction between EU law and the Convention, the CJEU found as follows: “115. In that regard, according to settled case-law, when there are no EU rules governing the matter, although it is for the domestic legal system of every Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, the Member States are, however, responsible for ensuring that, pursuant to Article 47 of the Charter, the right to effective judicial protection of those rights is effectively protected in every case (see, to that effect, judgments of 22 October 1998, IN. CO. GE.’90 and Others, C ‑ 10/97 to C ‑ 22/97, EU:C:1998:498, paragraph 14 and the case-law cited; of 15 April 2008, Impact, C ‑ 268/06, EU:C:2008:223, paragraphs 44 and 45; and of 19 March 2015, E.ON Földgáz Trade, C ‑ 510/13, EU:C:2015:189, paragraphs 49 and 50 and the case-law cited). 116. Furthermore, it should be noted that Article 52(3) of the Charter states that, in so far as the Charter contains rights which correspond to rights guaranteed by the ECHR, the meaning and scope of those rights are to be the same as those laid down by the ECHR. 117. As is clear from the explanations relating to Article 47 of the Charter, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the interpretation of the Charter, the first and second paragraphs of Article 47 of the Charter correspond to Article 6(1) and Article 13 of the ECHR (judgment of 30 June 2016, Toma and Biroul Executorului Judecătoresc Horațiu-Vasile Cruduleci, C ‑ 205/15, EU:C:2016:499, paragraph 40 and the case-law cited). 118. The Court must therefore ensure that the interpretation which it gives to the second paragraph of Article 47 of the Charter safeguards a level of protection which does not fall below the level of protection established in Article 6 of the ECHR, as interpreted by the European Court of Human Rights (judgment of 29 July 2019, Gambino and Hyka, C ‑ 38/18, EU:C:2019:628, paragraph 39). 119. As regards the substance of the second paragraph of Article 47 of the Charter, it is clear from the very wording of that provision that the fundamental right to an effective remedy enshrined therein means, inter alia, that everyone is entitled to a fair hearing by an independent and impartial tribunal. 120. That requirement that courts be independent, which is inherent in the task of adjudication, forms part of the essence of the right to effective judicial protection and the fundamental right to a fair trial, which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded (judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C ‑ 619/18, EU:C:2019:531, paragraph 58 and the case-law cited). 121. According to settled case-law, the requirement that courts be independent has two aspects to it. The first aspect, which is external in nature, requires that the court concerned exercise its functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, thus being protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions (judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C ‑ 216/18 PPU, EU:C:2018:586, paragraph 63 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C ‑ 619/18, EU:C:2019:531, paragraph 72). 122. The second aspect, which is internal in nature, is linked to impartiality and seeks to ensure that an equal distance is maintained from the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings. That aspect requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law (judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C ‑ 216/18 PPU, EU:C:2018:586, paragraph 65 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C ‑ 619/18, EU:C:2019:531, paragraph 73). 123. Those guarantees of independence and impartiality require rules, particularly as regards the composition of the body and the appointment, length of service and grounds for abstention, rejection and dismissal of its members, in order to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it (judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C ‑ 216/18 PPU, EU:C:2018:586, paragraph 66 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C ‑ 619/18, EU:C:2019:531, paragraph 74). 124. Moreover, in accordance with the principle of the separation of powers which characterises the operation of the rule of law, the independence of the judiciary must be ensured in relation to the legislature and the executive (see, to that effect, judgment of 10 November 2016, Poltorak, C ‑ 452/16 PPU, EU:C:2016:858, paragraph 35). 125. In that regard, it is necessary that judges are protected from external intervention or pressure liable to jeopardise their independence. The rules set out in paragraph 123 above must, in particular, be such as to preclude not only any direct influence, in the form of instructions, but also types of influence which are more indirect and which are liable to have an effect on the decisions of the judges concerned (see, to that effect, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C ‑ 619/18, EU:C:2019:531, paragraph 112 and the case-law cited). 126. That interpretation of Article 47 of the Charter is borne out by the case-law of the European Court of Human Rights on Article 6(1) of the ECHR according to which that provision requires that the courts be independent of the parties and of the executive and legislature (ECtHR, 18 May 1999, Ninn-Hansen v. Denmark, ..., p. 19 and the case-law cited). 127. According to settled case-law of that court, in order to establish whether a tribunal is ‘independent’ within the meaning of Article 6(1) of the ECHR, regard must be had, inter alia, to the mode of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body at issue presents an appearance of independence (ECtHR, 6 November 2018, Ramos Nunes de Carvalho e S v. Portugal, ..., § 144 and the case-law cited), it being added, in that connection, that what is at stake is the confidence which such tribunals must inspire in the public in a democratic society (see, to that effect, ECtHR, 21 June 2011, Fruni v. Slovakia, ..., § 141). 128. As regards the condition of ‘impartiality’, within the meaning of Article 6(1) of the ECHR, impartiality can, according to equally settled case-law of the European Court of Human Rights, be tested in various ways, namely, according to a subjective test where regard must be had to the personal convictions and behaviour of a particular judge, that is, by examining whether the judge gave any indication of personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality. As to the objective test, it must be determined whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise doubts as to his or her impartiality. In this connection, even appearances may be of a certain importance. Once again, what is at stake is the confidence which the courts in a democratic society must inspire in the public, and first and foremost in the parties to the proceedings (see, inter alia, ECtHR, 6 May 2003, Kleyn and Others v. Netherlands, ..., § 191 and the case-law cited, and 6 November 2018, Ramos Nunes de Carvalho e Sá v. Portugal, ..., §§ 145, 147 and 149 and the case-law cited). 129. As the European Court of Human Rights has repeatedly held, the concepts of independence and objective impartiality are closely linked which generally means that they require joint examination (see, inter alia, ECtHR, 6 May 2003, Kleyn and Others v. Netherlands, ..., § 192 and the case-law cited, and 6 November 2018, Ramos Nunes de Carvalho e Sá v. Portugal, ..., § 150 and the case-law cited). According to the case-law of the European Court of Human Rights, in deciding whether there is reason to fear that the requirements of independence and objective impartiality are not met in a given case, the perspective of a party to the proceedings is relevant but not decisive. What is decisive is whether such fear can be held to be objectively justified (see, inter alia, ECtHR, 6 May 2003, Kleyn and Others v. Netherlands, ..., §§ 193 and 194 and the case-law cited, and of 6 November 2018, Ramos Nunes de Carvalho e Sá v. Portugal, ..., §§ 147 and 152 and the case-law cited). 130. In that connection, the European Court of Human Rights has repeatedly stated that, although the principle of the separation of powers between the executive and the judiciary has assumed growing importance in its case-law, neither Article 6 nor any other provision of the ECHR requires States to adopt a particular constitutional model governing in one way or another the relationship and interaction between the various branches of the State, nor requires those States to comply with any theoretical constitutional concepts regarding the permissible limits of such interaction. The question is always whether, in a given case, the requirements of the ECHR have been met (see, inter alia, ECtHR, 6 May 2003, Kleyn and Others v. Netherlands, ..., § 193 and the case-law cited; 9 November 2006, Sacilor Lormines v. France, ..., § 59; and 18 October 2018, Thiam v. France, ..., § 62 and the case-law cited).” 152. With regard to the status of the new NCJ, the CJEU found, in so far as relevant: “136. In the present cases, it should be made clear that Article 30 of the New Law on the Supreme Court sets out all the conditions which must be satisfied by an individual in order for that individual to be appointed as a judge of that court. Furthermore, under Article 179 of the Constitution and Article 29 of the New Law on the Supreme Court, the judges of the Disciplinary Chamber are, as is the case for judges who are to sit in the other chambers of the referring court, appointed by the President of the Republic on a proposal of the [NCJ], that is to say the body empowered under Article 186 of the Constitution to ensure the independence of the courts and of the judiciary. 137. The participation of such a body, in the context of a process for the appointment of judges, may, in principle, be such as to contribute to making that process more objective ... In particular, the fact of subjecting the very possibility for the President of the Republic to appoint a judge to the [Supreme Court] to the existence of a favourable opinion of the [NCJ] is capable of objectively circumscribing the President of the Republic’s discretion in exercising the powers of his office. 138. However, that is only the case provided, inter alia, that that body is itself sufficiently independent of the legislature and executive and of the authority to which it is required to deliver such an appointment proposal ... 139. The degree of independence enjoyed by the [NCJ] in respect of the legislature and the executive in exercising the responsibilities attributed to it under national legislation, as the body empowered, under Article 186 of the Constitution, to ensure the independence of the courts and of the judiciary, may become relevant when ascertaining whether the judges which it selects will be capable of meeting the requirements of independence and impartiality arising from Article 47 of the Charter. 140. It is for the referring court to ascertain whether or not the [NCJ] offers sufficient guarantees of independence in relation to the legislature and the executive, having regard to all of the relevant points of law and fact relating both to the circumstances in which the members of that body are appointed and the way in which that body actually exercises its role. 141. The referring court has pointed to a series of elements which, in its view, call into question the independence of the [NCJ]. 142. In that regard, although one or other of the factors thus pointed to by the referring court may be such as to escape criticism per se and may fall, in that case, within the competence of, and choices made by, the Member States, when taken together, in addition to the circumstances in which those choices were made, they may, by contrast, throw doubt on the independence of a body involved in the procedure for the appointment of judges, despite the fact that, when those factors are taken individually, that conclusion is not inevitable. 143. Subject to those reservations, among the factors pointed to by the referring court which it shall be incumbent on that court, as necessary, to establish, the following circumstances may be relevant for the purposes of such an overall assessment: first, the [NCJ], as newly composed, was formed by reducing the ongoing four-year term in office of the members of that body at that time; second, whereas the 15 members of the [NCJ] elected among members of the judiciary were previously elected by their peers, those judges are now elected by a branch of the legislature among candidates capable of being proposed inter alia by groups of 2 000 citizens or 25 judges, such a reform leading to appointments bringing the number of members of the [NCJ] directly originating from or elected by the political authorities to 23 of the 25 members of that body; third, the potential for irregularities which could adversely affect the process for the appointment of certain members of the newly formed [NCJ]. 144. For the purposes of that overall assessment, the referring court is also justified in taking into account the way in which that body exercises its constitutional responsibilities of ensuring the independence of the courts and of the judiciary and its various powers, in particular if it does so in a way which is capable of calling into question its independence in relation to the legislature and the executive.” [17] Judgment of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions), C ‑ 824/18, EU:C:2021:153 153. By resolutions adopted in August 2018, the NCJ decided not to present to the President of the Republic proposals for the appointment of five persons (‘the appellants’) as judges at the Supreme Court and to put forward other candidates for those positions. The appellants lodged appeals against these resolutions with the Supreme Administrative Court, the referring court. Such appeals were governed at that time by the Act on the NCJ, as amended by a law of July 2018. Under those rules, it was provided that unless all the participants in a procedure for appointment as judge at the Supreme Court challenged the relevant resolution of the NCJ, that resolution became final with respect to the candidate presented for that position, so that the latter could be appointed by the President of the Republic. The referring court, taking the view that such rules precluded in practice any effectiveness of the appeal lodged by a participant who had not been put forward for appointment, initially requested a preliminary ruling on whether those rules were in compliance with EU law. 154. After that initial referral, the Act on the NCJ was once again amended, in 2019. Pursuant to that amendment, it became impossible to lodge appeals against decisions of the NCJ concerning the proposal or non-proposal of candidates for appointment to judicial positions at the Supreme Court. Moreover, that amendment declared appeals which were still pending to be discontinued by operation of law. Considering that from now on it was deprived of its jurisdiction to obtain an answer to the questions that it had previously referred to the CJEU, the referring court, i.e. the Supreme Administrative Court, in its complementary request for a preliminary ruling, asked a question about the compatibility of those new rules with EU law. 155. On 2 March 2021 the CJEU delivered a preliminary ruling, which found in the operative part in so far as relevant: “1. Where amendments are made to the national legal system which, first, deprive a national court of its jurisdiction to rule in the first and last instance on appeals lodged by candidates for positions as judges at a court such as the [Supreme Court, Poland] against decisions of a body such as the [National Council of the Judiciary, Poland] not to put forward their application, but to put forward that of other candidates to the President of the Republic of Poland for appointment to such positions, which, secondly, declare such appeals to be discontinued by operation of law while they are still pending, ruling out the possibility of their being continued or lodged again, and which, thirdly, in so doing, deprive such a national court of the possibility of obtaining an answer to the questions that it has referred to the Court for a preliminary ruling: ... – the second subparagraph of Article 19(1) TEU must be interpreted as precluding such amendments where it is apparent – a matter which it is for the referring court to assess on the basis of all the relevant factors – that those amendments are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of the judges appointed, by the President of the Republic of Poland, on the basis of those decisions of the Krajowa Rada Sądownictwa (National Council of the Judiciary), to external factors, in particular, to the direct or indirect influence of the legislature and the executive, and as to their neutrality with respect to the interests before them and, thus, may lead to those judges not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society governed by the rule of law must inspire in subjects of the law. Where it is proved that those articles have been infringed, the principle of primacy of EU law must be interpreted as requiring the referring court to disapply the amendments at issue, whether they are of a legislative or constitutional origin, and, consequently, to continue to assume the jurisdiction previously vested in it to hear disputes referred to it before those amendments were made.” 156. The relevant reasons for the judgment read as follows: “ 121. ... the guarantees of independence and impartiality required under EU law presuppose, inter alia, the existence of rules governing the appointment of judges. ... 124. Having noted that, under Article 179 of the Constitution, the judges of the [Supreme Court] are appointed by the President of the Republic on a proposal from the [NCJ], that is to say the body empowered under Article 186 of the Constitution to ensure the independence of the courts and of the judiciary, the Court stated, in paragraph 137 of the judgment in A. K. and Others, that the participation of such a body, in the context of a process for the appointment of judges, may, in principle, be such as to contribute to making that process more objective, by circumscribing the President of the Republic’s discretion in exercising the powers of his or her office. 125. In paragraph 138 of that judgment, the Court stated, however, that that is only the case provided, inter alia, that that body is itself sufficiently independent of the legislature and executive and of the authority to which it is required to deliver such an appointment proposal. 126 In that regard, it should be noted that, as the referring court has pointed out, under Article 179 of the Constitution, the act by which the [NCJ] puts forward a candidate for appointment to a position of judge at the [Supreme Court] is an essential condition for such a candidate to be appointed to such a position by the President of the Republic. The role of the [NCJ] in that appointment process is therefore decisive. 127. In such a context, the degree of independence enjoyed by the [NCJ] in respect of the Polish legislature and the executive in exercising the responsibilities attributed to it may become relevant when ascertaining whether the judges which it selects will be capable of meeting the requirements of independence and impartiality arising from EU law (see, to that effect, judgment in A. K. and Others, paragraph 139). ... 129. Thus, while the fact that it may not be possible to exercise a legal remedy in the context of a process of appointment to judicial positions of a national supreme court may, in certain cases, not prove to be problematic in the light of the requirements arising from EU law, in particular the second subparagraph of Article 19(1) TEU, the situation is different in circumstances in which all the relevant factors characterising such a process in a specific national legal and factual context, and in particular the circumstances in which possibilities for obtaining judicial remedies which previously existed are suddenly eliminated, are such as to give rise to systemic doubts in the minds of individuals as to the independence and impartiality of the judges appointed at the end of that process. 130. As is apparent from the judgment in A.K. and Others, that may particularly be the case where it appears, on the basis of criteria such as those mentioned by the referring court and which are referred to in paragraph 43 of this judgment, that the independence of a body such as the [NCJ] from the legislature and executive is open to doubt. 131. In paragraphs 143 and 144 of the judgment A.K. and Others, the Court thus already identified, from among the relevant factors to be taken into account for the purposes of assessing the requirement of independence which must be satisfied by a body such as the [NCJ], first, the fact that the [NCJ], as newly composed, was formed by reducing the ongoing four-year term in office of the members of that body at that time, second, the fact that, whereas the 15 members of the [NCJ] elected among members of the judiciary were previously elected by their peers, those judges are now elected by a branch of the Polish legislature, third, the potential for irregularities which could adversely affect the process for the appointment of certain members of the newly formed [NCJ], and, fourth, the way in which that body exercises its constitutional responsibilities of ensuring the independence of the courts and of the judiciary and its various powers. In such a context, the possible existence of special relationships between the members of the [NCJ] thus established and the Polish executive, such as those referred to by the referring court and mentioned in paragraph 44 of this judgment, may similarly be taken into account for the purposes of that assessment. 132. In addition, in the present case, account should also be taken of other relevant contextual factors which may also contribute to doubts being cast on the independence of the [NCJ] and its role in appointment processes such as those at issue in the main proceedings, and, consequently, on the independence of the judges appointed at the end of such a process. 133. It should be observed, in that regard, that the legislative reform which led to the establishment of the [NCJ] in its new composition took place in conjunction with the adoption, which was highly contentious, of the provisions of Articles 37 and 111 of the New Law on the Supreme Court which the referring court has mentioned and which lowered the retirement age of the judges of the [Supreme Court] and applied that measure to judges currently serving in that court, while empowering the President of the Republic with discretion to extend the exercise of active judicial service of those judges beyond the new retirement age set by that law. 134. It is therefore common ground that the establishment of the [NCJ] in its new composition took place in a context in which it was expected that many positions would soon be vacant in the [Supreme Court] following, in particular, the retirement of the judges of that court who had reached the newly set age limit of 65 years.” [18] Judgment of 20 April 2021, Repubblika v. Il-Prim Ministru, C-896/19, EU:C:2021:311 157. The First Hall of the Civil Court, sitting as a Constitutional Court of Malta made a request for a preliminary ruling on the conformity with EU law of the provisions of the Constitution of Malta governing the procedure for the appointment of members of the judiciary. 158. On 20 April 2021 the CJEU gave the following ruling, in so far as relevant: “2. The second subparagraph of Article 19(1) TEU must be interpreted as not precluding national provisions which confer on the Prime Minister of the Member State concerned a decisive power in the process for appointing members of the judiciary, while providing for the involvement, in that process, of an independent body responsible for, inter alia, assessing candidates for judicial office and giving an opinion to that Prime Minister.” 159. The relevant reasons for the judgment read as follows: “63. It follows that compliance by a Member State with the values enshrined in Article 2 TEU is a condition for the enjoyment of all of the rights deriving from the application of the Treaties to that Member State. A Member State cannot therefore amend its legislation in such a way as to bring about a reduction in the protection of the value of the rule of law, a value which is given concrete expression by, inter alia, Article 19 TEU ... 64. The Member States are thus required to ensure that, in the light of that value, any regression of their laws on the organisation of justice is prevented, by refraining from adopting rules which would undermine the independence of the judiciary ... 65. In that context, the Court has already held, in essence, that the second subparagraph of Article 19(1) TEU must be interpreted as precluding national provisions relating to the organisation of justice which are such as to constitute a reduction, in the Member State concerned, in the protection of the value of the rule of law, in particular the guarantees of judicial independence (see, to that effect, judgments of 19 November 2019, A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C ‑ 585/18, C ‑ 624/18 and C ‑ 625/18, EU:C:2019:982, and of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court ‑ Actions), C ‑ 824/18, EU:C:2021:153). 66. By contrast, the involvement, in the context of a process for appointing members of the judiciary, of a body such as the Judicial Appointments Committee established, when the Constitution was reformed in 2016, by Article 96A of the Constitution may, in principle, be such as to contribute to rendering that process more objective, by circumscribing the leeway available to the Prime Minister in the exercise of the power conferred on him or her in that regard. It is also necessary that such a body should itself be sufficiently independent of the legislature, the executive and the authority to which it is required to submit an opinion on the assessment of candidates for a judicial post ... 67. In the present case, a series of rules mentioned by the referring court appear to be such as to guarantee the independence of the Judicial Appointments Committee vis ‑ à ‑ vis the legislature and the executive. The same applies to the rules, contained in Article 96A(1) to (3) of the Constitution, relating to the composition of that committee and the prohibition on politicians sitting in that committee, the obligation imposed on members of that committee by Article 96A(4) of the Constitution to act on their individual judgment and not to be subject to direction or control by any person or authority, and the obligation for that committee to publish, with the consent of the Minister responsible for justice, the criteria which it has drawn up, and also its assessments, something which was, moreover, done, as the Advocate General observes in point 91 of his Opinion. 68. Furthermore, the referring court has not, in the present case, expressed any doubts as to the conditions under which the members of the Judicial Appointments Committee established by Article 96A of the Constitution were appointed or as to how that body actually performs its role. 69. It is thus apparent that the introduction of the Judicial Appointments Committee by Article 96A of the Constitution serves to reinforce the guarantee of judicial independence.” Judgment of 15 July 2021 in Commission v. Poland (Disciplinary regime for judges), C-791/19, EU:C:2021:596 160. Following its interim decision of 8 April 2020 (see paragraph 23 above), on 15 July 2021 the Grand Chamber of the CJEU delivered its judgment in the case of Commission v. Poland (Disciplinary regime for judges) holding that the new disciplinary regime for judges was not compatible with EU law. The CJEU found, inter alia, that in light of the global context of major reforms that had recently affected the Polish judiciary, in which context the Disciplinary Chamber of the Supreme Court had been created, and owing to a combination of factors that framed the process whereby that new chamber had been established, that chamber did not provide all the guarantees of impartiality and independence and, in particular, was not protected from the direct or indirect influence of the Polish legislature and executive; among those factors, the Court criticised, in particular, the fact that the process for appointing judges to the Supreme Court, including the members of the Disciplinary Chamber, was essentially determined by the NCJ, which had been significantly reorganised by the Polish executive and legislature and whose independence could give rise to reasonable doubts. 161. The relevant reasons for the judgment read as follows: “96. In accordance with the principle of the separation of powers which characterises the operation of the rule of law, the independence of the judiciary must in particular be ensured in relation to the legislature and the executive (judgment of 20 April 2021, Repubblika, C ‑ 896/19, EU:C:2021:311, paragraph 54 and the case-law cited). 97. Concerning, more specifically, the circumstances in which decisions to appoint judges of the Supreme Court and, in particular, of the Disciplinary Chamber, are made, it is true that the Court has already had occasion to state that the mere fact that the judges concerned are appointed by the President of a Member State does not give rise to a relationship of subordination of those judges to the latter or to doubts as to the judges’ impartiality, if, once appointed, they are free from influence or pressure when carrying out their role (judgment of 20 April 2021, Repubblika, C ‑ 896/19, EU:C:2021:311, paragraph 56 and the case-law cited). 98. However, the Court has stated that it is still necessary to ensure that the substantive conditions and procedural rules governing the adoption of those appointment decisions are such that they cannot give rise to reasonable doubts in the minds of individuals as to the imperviousness of the judges concerned to external factors and their neutrality with respect to the interests before them, once they have been appointed as judges, and that it is important, inter alia, in that perspective, that those conditions and procedural rules should be such as to preclude not only any direct influence, in the form of instructions, but also types of influence which are more indirect and which are liable to have an effect on the decisions of the judges concerned (see, to that effect, judgment of 20 April 2021, Repubblika, C ‑ 896/19, EU:C:2021:311, paragraphs 55 and 57 and the case-law cited). 99. Having noted that, under Article 179 of the Constitution, the judges of the Supreme Court are to be appointed by the President of the Republic on a proposal from the [NCJ], namely the body entrusted under Article 186 of the Constitution with the task of safeguarding the independence of courts and judges, the Court stated, in paragraph 137 of the judgment in A. K. and Others and paragraph 124 of the judgment in A.B. and Others, that the participation of such a body, in the context of a process for the appointment of judges, may, in principle, be such as to contribute to making that process more objective, by circumscribing the President of the Republic’s discretion in exercising the powers of his or her office. 100. In paragraph 138 of the judgment in A. K. and Others and paragraph 125 of the judgment in A.B. and Others, the Court stated, however, that this is not the case unless, inter alia, that body is itself sufficiently independent of the legislature and the executive and of the authority to which it is required to deliver such an appointment proposal. 101. In that regard, it should be noted that, under Article 179 of the Constitution, the act by which the [NCJ] puts forward a candidate for appointment to a judge’s post at the Supreme Court is an essential condition for that candidate to be appointed to such a post by the President of the Republic. The role of the [NCJ] in that appointment process is therefore decisive (see, to that effect, the judgment in A.B. and Others, paragraph 126). 102. In such a context, the degree of independence enjoyed by the [NCJ] in respect of the Polish legislature and executive in performing the tasks thus entrusted to it may become relevant when ascertaining whether the judges which it selects will themselves be capable of meeting the requirements of independence and impartiality derived from EU law (see, to that effect, judgments in A. K. and Others, paragraph 139, and A.B. and Others, paragraph 127). 103. It is true that ... the Court has previously held that the fact that a body, such as a national council of the judiciary, which is involved in the process for appointing judges is, for the most part, made up of members chosen by the legislature cannot, in itself, give rise to any doubt as to the independence of the judges appointed at the end of that process (see, to that effect, judgment of 9 July 2020, Land Hessen, C ‑ 272/19, EU:C:2020:535, paragraphs 55 and 56). However, it is also apparent from the case-law of the Court and, more specifically, from the judgments in A. K. and Others and A.B. and Others, that the situation may be different where that fact, combined with other relevant factors and the conditions under which those choices were made, leads to such doubts being raised. 104. In that regard, it should be noted, first, that ... whereas the 15 members of the [NCJ] selected from among the judges were previously selected by their peers, the Law on the [NCJ] has recently been amended, so that, as is apparent from Article 9a of that law, those 15 members are now appointed by a branch of the Polish legislature, with the result that 23 of the 25 members of the [NCJ] in that new composition have been appointed by the Polish executive or legislature or are members thereof. Such changes are liable to create a risk, hitherto absent from the selection procedure previously in force, of the legislature and the executive having a greater influence over the [NCJ] and of the independence of that body being undermined. 105. Secondly ... it is apparent from Article 6 of the Law of 8 December 2017 ... that the thus newly constituted [NCJ] was established through the shortening of the existing four-year term of office, provided for in Article 187 § 3 of the Constitution, of the members which had, until that point, made up that body. 106. Thirdly, it is important to point out that the legislative reform which thus governed the process whereby the [NCJ] was established in that new composition took place at the same time as the adoption of the new Law on the Supreme Court which carried out a wide-ranging reform of the Supreme Court including, in particular, the creation, within that court, of two new chambers, one being the Disciplinary Chamber, and the introduction of the mechanism, since held to be contrary to the second subparagraph of Article 19(1) TEU ... providing for a lowering of the retirement age for judges of the Supreme Court and the application of that measure to serving judges of that court. 107. It is, accordingly, common ground that the premature termination of the terms of office of certain then-serving members of the [NCJ] and the reorganisation of the [NCJ] in its new composition took place in a context in which it was expected that numerous posts would be soon be vacant within the Supreme Court, and in particular within the Disciplinary Chamber, as the Court of Justice has already emphasised, in essence, in paragraphs 22 to 27 of the order of 17 December 2018, Commission v Poland (C ‑ 619/18 R, EU:C:2018:1021), in paragraph 86 of the judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court) (C ‑ 619/18, EU:C:2019:531), and in paragraph 134 of the judgment in A.B. and Others. 108. It must be held that the factors highlighted in paragraphs 104 to 107 of the present judgment are such as to give rise to legitimate doubts as to the independence of the [NCJ] and its role in an appointment process such as that resulting in the appointment of the members of the Disciplinary Chamber. 109. Furthermore, it is apparent from paragraphs 89 to 94 of the present judgment, first, that that appointment process applies to candidates for the post of member of a newly created judicial chamber created to give rulings, inter alia, in disciplinary proceedings concerning national judges and on issues relating to the reform of the provisions relating to the Supreme Court, certain aspects of which have already led to a finding of a failure to fulfil obligations under the second subparagraph of Article 19(1) TEU on the part of the Republic of Poland, and, second, that that body is required to be made up exclusively of new judges who are not already sitting within the Supreme Court and who will receive a significantly higher level of remuneration, and has a particularly high degree of organisational, functional and financial autonomy in comparison with the conditions prevailing in the other judicial chambers of the Supreme Court. 110. Those factors, taken in the context of an overall analysis including the important role played by the [NCJ] – a body whose independence from the political authorities is questionable, as is apparent from paragraph 108 of the present judgment – in appointing members of the Disciplinary Chamber, are such as to give rise to reasonable doubts in the minds of individuals as to the independence and impartiality of that Disciplinary Chamber.” The European Commission 162. On 20 December 2017 the Commission launched the procedure under Article 7(1) of the TEU. The Commission submitted a reasoned proposal to the Council of the European Union, inviting it to determine that there was a clear risk of a serious breach by the Republic of Poland of the rule of law, one of the values referred to in Article 2 of the TEU, and to address appropriate recommendations to Poland in this regard. 163. The Commission noted that the situation in Poland had continuously deteriorated, despite the three recommendations issued under the rule of law framework. It considered that the situation in Poland represented a clear risk of a serious breach by the Republic of Poland of the rule of law, enshrined in Article 2 of the TEU. The Commission observed that over a period of two years more than thirteen consecutive laws had been adopted affecting the entire structure of the justice system in Poland: the Constitutional Court, the Supreme Court, the ordinary courts, the National Council for the Judiciary, the prosecution service and the National School of Judiciary. The common pattern in all these legislative changes was the executive or legislative powers being systematically enabled to interfere significantly with the composition, powers, administration and functioning of those authorities and bodies. 164. As regards the law on the NCJ, the Commission noted that its role had a direct impact on the independence of judges. For this reason, in Member States where a Council for the Judiciary has been established, its independence was particularly important for avoiding undue influence from the Government or the Parliament on the independence of judges. The Commission considered that the law on the NCJ increased the concerns regarding the overall independence of the judiciary by providing for the premature termination of the mandate of all judicial members of the NCJ, and by establishing an entirely new regime for the appointment of its judicial members allowing a high degree of political influence. 165. The relevant extracts from the European Commission reasoned proposal read as follows: “4.2. The law on the National Council for the Judiciary ... 138. For this reason, in Member States where a Council for the Judiciary has been established, its independence is particularly important for avoiding undue influence from the Government or the Parliament on the independence of judges (footnote omitted). 139. The law on the National Council for the Judiciary increases the concerns regarding the overall independence of the judiciary by providing for the premature termination of the mandate of all judges-members of the National Council for the Judiciary, and by establishing an entirely new regime for the appointment of its judges ‑ members which allows a high degree of political influence. 140. According to Article 6 of the law on the National Council for the Judiciary the mandates of all the current judges-members of the National Council for the Judiciary will be terminated prematurely. This termination decided by the legislative powers raises concerns for the independence of the Council and the separation of powers. The Parliament will gain a decisive influence on the composition of the Council to the detriment of the influence of judges themselves. This recomposition of the National Council for the Judiciary could already occur within one and a half month after the publication of the law [footnote omitted]. The premature termination also raises constitutionality concerns, as underlined in the opinion of the National Council for the Judiciary, of the Supreme Court and of the Ombudsman. 141. Also, the new regime for appointing judges-members of the National Council for the Judiciary raises serious concerns. Well established European standards, in particular the 2010 Recommendation of the Committee of Ministers of the Council of Europe, stipulate that ‘not less than half the members of [Councils for the Judiciary] should be judges chosen by their peers from all levels of the judiciary and with respect for pluralism inside the judiciary’ [footnote omitted]. It is up to the Member States to organise their justice systems, including whether or not to establish a Council for the Judiciary. However, where such a Council has been established, as it is the case in Poland, its independence must be guaranteed in line with European standards. 142. Until the adoption of the law on the National Council for the Judiciary, the Polish system was fully in line with these standards since the National Council for the Judiciary was composed of a majority of judges chosen by judges. Articles 1(1) and 7 of the law amending the law on the National Council for the Judiciary would radically change this regime by providing that the 15 judges-members of the National Council for the Judiciary will be appointed, and can be re-appointed, by the Sejm (footnote omitted). In addition, there is no guarantee that under the new law the Sejm will appoint judges-members of the Council endorsed by the judiciary, as candidates to these posts can be presented not only by groups of 25 judges, but also by groups of at least 2000 citizens (footnote omitted). Furthermore, the final list of candidates to which the Sejm will have to give its approval en bloc is pre-established by a committee of the Sejm (footnote omitted). The new rules on appointment of judges-members of the NCJ significantly increase the influence of the Parliament over the Council and adversely affect its independence in contradiction with the European standards. The fact that the judges-members will be appointed by the Sejm with a three fifths majority does not alleviate this concern, as judges-members will still not be chosen by their peers. In addition, in case such a three fifths majority is not reached, judges-members of the Council will be appointed by the Sejm with absolute majority of votes. ... 145. In their opinions concerning the draft law, the Supreme Court, the National Council for the Judiciary and the Ombudsman raised a number of concerns as regards the constitutionality of the new regime. In particular, the National Council for the Judiciary notes that under the Polish constitution, the Council serves as a counterweight to the parliament which has been constitutionally authorized to decide on the content of law. The political appointment of judges-members and the premature termination of mandates of the current judges-members of the Council therefore violates the principles of separation of powers and judicial independence. As explained in the previous Recommendations, an effective constitutional review of these provisions is currently not possible.” 166. The procedure under Article 7(1) TEU is still under consideration by the Council of the European Union. The European Parliament 167. In its resolution of 17 September 2020 on the proposal for a Council decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law (COM(2017)0835 – 2017/0360R(NLE)), the European Parliament stated, in so far as relevant: “ The composition and functioning of the new National Council of the Judiciary 24. Recalls that it is up to the Member States to establish a council for the judiciary, but that, where such council is established, its independence must be guaranteed in line with European standards and the Member State’s constitution; recalls that, following the reform of the National Council of the Judiciary, which is the body responsible for safeguarding the independence of the courts and judges in accordance with Article 186 § 1 of the Polish Constitution, by means of the Act of 8 December 2017 amending the Act on the National Council of the Judiciary and certain other acts, the judicial community in Poland was deprived of the power to delegate representatives to the National Council of the Judiciary, and hence its influence on recruitment and promotion of judges; recalls that before the reform, 15 out of 25 members of the National Council of the Judiciary were judges elected by their peers, while since the 2017 reform, those judges are elected by the Polish parliament; strongly regrets that, taken in conjunction with the premature termination in early 2018 of the mandates of all the members appointed under the old rules, this measure led to a far-reaching politicisation of the National Council of the Judiciary;”. COMPARATIVE LAW MATERIAL 168. The Court has conducted a comparative survey of the domestic law and practice in 41 State Parties to the Convention on the issue of the premature termination ex lege of a judge’s term of office as a member of a Council for the Judiciary [19]. 169. It emerges from the contributions from the States surveyed, that most of them (36) have councils for the judiciary or equivalent bodies with the function of safeguarding the independence of the judiciary. Of these, the majority (26) make provision in their domestic law for premature termination of the term of office of a judge elected as a member of such council, although on grounds that vary considerably between the different States. 170. In 17 countries the possibility to challenge premature termination of a council members’ term of office in judicial proceedings is either expressly provided for by law or implicitly follows from the general domestic legal framework. In 13 States the termination of office at the council for the judiciary is an automatic consequence of the end of the person’s term of office as a judge and is therefore not open to legal challenge as such, it being understood that the loss of judicial status is itself subject to judicial review. In respect of two States there is no clear answer to the question whether premature termination of the mandate may be challenged in judicial proceedings. Only in three countries are decisions on early termination of a council member’s mandate final and not subject to any form of challenge in judicial proceedings; in one of these, however, a relevant reform is pending. 171. The majority of the States surveyed (24) do not have past experience of adopting laws resulting in the premature termination of office of a member of a council for the judiciary, and there is no indication if it is hypothetically possible in their systems. However, three countries have encountered relevant situations in the past; two of them introduced transitional provisions in relation to the terms of office existing at the time of the new law’s entry into force. Two further States accept a theoretical possibility of premature termination of term of office in this manner. By contrast, in four other countries, legislative intervention of this kind would, according to the contributions received from the respective States, run a risk of being found to be unconstitutional on the basis that it would encroach on judicial independence. In the same vein, in two States where a new law regulating the composition of the council for the judiciary may theoretically be adopted, it cannot have retroactive effect. It may be concluded that there is no clear consensus in favour or against the possibility of legislative reform leading to a premature termination of office of a member of judicial council. The justification of such reform in a concrete situation and the existence of safeguards preserving the independence of courts and the judiciary, including transitional provisions, are relevant factors. Ultimately, the balance between the benefit of the reform for the functioning of democratic institutions and the security of tenure plays an important role. THE LAW ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 172. The applicant complained that he had been denied access to a court in order to contest the premature and allegedly arbitrary termination of his term of office as a judicial member of the NCJ. He had been elected as a member of this body for a four-year term, as provided for in Article 187 § 3 of the Constitution, and had the right to remain in office for the duration of that term, thus until 11 January 2020. The applicant claimed that the premature termination of his term of office had violated the Constitution and breached the rule of law. He relied on Article 6 § 1 of the Convention, of which, the relevant part, reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.” AdmissibilityApplicability of Article 6 Applicability of Article 6 Applicability of Article 6 (a) The Government’s submissions 173. The Government raised a preliminary objection as to the applicability of Article 6 § 1 of the Convention. They claimed that under Polish law there was no right to exercise public authority, including the right of a judge to be elected to the NCJ or to remain in that office. Moreover, in the present case there was no genuine and serious “dispute” concerning the existence of the alleged civil right of the applicant to remain a member of the NCJ. 174. The Government argued that until 2002 there had been no doubt that the term of office had been of a joint nature for all of the groups of the NCJ’s elected members. However, in February 2002 the NCJ had adopted the view that the term of office of a judge elected to the NCJ should be considered individual (following the termination of the term of office of a judicial member who had been appointed to another judicial post). They submitted that, as a result, a discrepancy had arisen between the nature of the term of office of the judicial members and that of the other elected members (deputies and senators) of the NCJ. This differentiation had been reflected in the Act of NCJ of 2011. Consequently, on 11 April 2017 the Prosecutor General had lodged an application with the Constitutional Court on this issue. In its judgment of 20 June 2017 (no. K 5/17), the Constitutional Court had ruled that the term of office of all of the NCJ’s elected members should be a joint one (see paragraph 42 above). 175. The Government maintained that in order to implement the Constitutional Court’s judgment of 20 June 2017, the authorities had prepared a bill amending the Act on the NCJ. They argued that the decision to terminate the applicant’s term of office had been legitimate. Its rationale was to implement the Constitutional Court’s judgment in so far as the nature of the term of office of the NCJ’s judicial members was concerned. It thus constituted a merely technical measure aimed at the establishment of a new term of office consonant with the relevant constitutional provisions. 176. The Government noted that the NCJ was a constitutional body tasked with safeguarding judicial independence, but not a judicial authority. It was situated “between the three constitutional powers” and embodied the balance between them. They argued that the fact that the present case concerned a judicial member of the NCJ did not have any particular significance for the applicability of Article 6 § 1. 177. They emphasised the distinction between the applicant’s status as a judge and his function as a member of the NCJ. The latter pertained to the exercise of public authority ( władztwo publiczno-prawne ). The NCJ included persons who were not entitled to independence, such as the deputies and senators, the Minister of Justice and a representative of the President of the Republic. The latter two members could be dismissed from their positions. Thus, it could not be said that a seat on the NCJ was protected in any particular way. Moreover, since the Constitution and the Act on the NCJ did not differentiate between the status of the NCJ’s members depending on who appointed or elected them, it was difficult to treat the NCJ’s judicial members differently from other members. Since the possibility of dismissing some members from the NCJ had never been a sign of a lack of independence of this body, it was thus not possible to derive from the rule of the NCJ’s independence an absolute prohibition on removal of its members. Furthermore, it was impossible to conclude from the Court’s case-law that only the existence of an independent judicial council could serve as a guarantee of the independence of the judiciary. 178. The Government submitted that election to the NCJ did not constitute “employment” or any other comparable legal relationship. Moreover, the present case did not concern an “employment dispute” similar to the cases of Vilho Eskelinen and Others v. Finland ([GC], no. 63235/00, ECHR 2007 ‑ II) or Baka v. Hungary ([GC], no. 20261/12, 23 June 2016). NCJ members performed their functions pro bono. The only financial reward for NCJ members was the payment of per diem allowances for taking part in plenary sessions, or other work, and the reimbursement of relevant expenses. However, under the case-law of the domestic courts those allowances were not regarded as remuneration. Thus, the fact of being a member of the NCJ could not be regarded as a right either under domestic law or under the Convention. 179. The Government maintained that a certain stability of the term of office of the NCJ’s elected members was established by law not to protect any “individual interest” of a judge, but to safeguard the public interest of ensuring the proper exercise of the NCJ’s functions. Consequently, a member of the NCJ did not have any “right” to hold his position. The early termination of a term of office pertaining to the exercise of public authority did not constitute an interference with the rights of an individual. There were no safeguards in the Convention guaranteeing the exercise of public authority. They further argued that Article 60 of the Constitution, providing for the right of access to public service, did not apply to the present case. 180. As regards the first condition of the Eskelinen test, the Government maintained that under Polish law the applicant had been excluded from the right of access to a court in so far as his seat on the NCJ was concerned. This exclusion had been in place already on the date of his election to the NCJ and thus the 2017 Amending Act had not affected this. 181. The Government referred to section 14 of the Act on the NCJ, as applicable at the material time, containing the list of reasons for termination of the term of office of an NCJ member before the expiry of that term, and also to section 6 of the 2017 Amending Act. They noted that the Act on the NCJ had never provided for any form of appeal or remedy in connection with the expiry, termination or renunciation of the office for the members of this body. The same was true of the 2001 Act on the NCJ, which had envisaged in section 10(3) the possibility of removal of a member of the NCJ by the body that had elected him or her. 182. The Act on the NCJ provided that a judicial member of the Council could be appointed as a “permanent member of the Council’s bureau”. In such a case they were considered to be an employee and were entitled to bring court proceedings pertaining to their employment in the Council’s bureau. Domestic law provided for the right of access to a court only in those limited circumstances. 183. The Government maintained that “civil rights” did not concern NCJ members and that the public-law nature of their office had never been questioned. Matters pertaining to participation in the NCJ did not constitute a “case” ( sprawa ) within the meaning of Article 45 § 1 of the Constitution and as such were excluded from the right to a court ratione materiae. The Government thus concluded that national law “excluded access to a court” for an individual claim based on the alleged unlawfulness of the termination of the term of office. The first condition of the Eskelinen test had therefore been met. 184. As regards the second condition of the Eskelinen test, the Government argued that the subject-matter of the applicant’s complaint related exclusively to the exercise of State power ( acta iure imperii ). 185. The Government maintained that the amendments in the 2017 Amending Act had been proportionate since the aim had been to adjust the election rules to the relevant provisions of the Constitution, as interpreted by the Constitutional Court in its judgment of 20 June 2017 (no. K 5/17). They referred to the reasons for this judgment, noting that the amendments fell within the ambit of the legislature’s margin of appreciation. Article 187 § 1(2) of the Constitution provided for election of the NCJ’s judicial members from among judges. However, the Constitution did not determine who had to elect those judges and how they had to be elected. These modalities were to be regulated by statute, in accordance with Article 187 § 4 of the Constitution. 186. The Government maintained that under the previous legislation, fifteen judicial members of the NCJ were elected by judges in a complicated and non-transparent procedure which favoured senior judges and those holding administrative functions. Currently, the judicial members were elected by the Sejm only from among the judges who obtained adequate support from other judges or from citizens. 187. The Government submitted that in the Constitutional Court’s case ‑ law the protection of the term of office of the NCJ’s judicial members was not regarded as absolute. While not negating the significance of the stability of the term of office, the Constitutional Court had also acknowledged an equally important aspect, namely the representativeness of the judiciary in the NCJ. Reducing the term of office was to be considered an exception, but a permissible one in a situation where there was no real possibility of introducing temporary solutions, when the rules on the representation of the judiciary in the NCJ changed following the modification of the manner of electing the judicial members to the Council. Owing to the individual terms of office of the NCJ’s judicial members, the introduction of the new system without shortening the terms of office of the sitting members would have both stretched that process over time and complicated it. In the Government’s view, the cohesion of the changes which made it possible for the NCJ to operate in compliance with the Constitution justified the termination of the terms of office of the NCJ’s judicial members who had been elected on the basis of the previous provisions. Furthermore, the “democratisation” of the NCJ election procedure constituted an important public interest which justified in turn the early termination of the term of office of the NCJ’s judicial members. In this context, the Government submitted that under the 2017 Amending Act judicial members of the NCJ were to be elected by the Sejm from among the judges who obtained an adequate support from other judges or from citizens. 188. The Government concluded that the applicant’s exclusion from access to a court was justified on objective grounds in the State’s interest. The second condition of the Eskelinen test had therefore been met as well. 189. In the present case, since both conditions of the Eskelinen test had been fulfilled, the applicant’s complaint under Article 6 § 1 should be considered incompatible ratione materiae. 190. In the alternative, the Government submitted that the complaint under Article 6 § 1 was inadmissible as manifestly ill-founded. (b) The applicant’s submissions 191. The applicant maintained that Article 6 § 1 under its civil head was applicable to his case. 192. He asserted that the Polish Constitution guaranteed to a judge elected to the NCJ the right to serve a full four-year term of office. This conclusion stemmed from Article 60 read in conjunction with Article 187 § 3 of the Constitution. He noted that under the basic principles of the Constitution all rights guaranteed to individuals referred to the relationship between them and the State authorities. Therefore, the early termination of his term of office in the NCJ had to be seen as an interference with his individual right of access to public service, not as a deprivation of the exercise of public power. The latter was exercised by the NCJ as a collective body, not by its individual members. 193. The applicant argued that the termination of his term of office had had clear pecuniary consequences for him. He had received substantial per diem allowances for taking part in the NCJ’s plenary sessions or other work as well as the reimbursement of relevant expenses. The allowances were subject to income tax deductions and therefore had a monetary component within the meaning of applicable tax regulations. In addition, each judicial member of the NCJ was entitled under the relevant regulation to a reduction in their workload of cases, while maintaining their remuneration as a judge. The applicant’s workload had been reduced from three to one judicial session per month. 194. The applicant submitted that the stability of tenure of the NCJ’s members was fundamental to ensuring the proper functioning of that body. He submitted that the regulations on the NCJ that had been in force before the adoption of the 2011 Act had respected the tenure of the Council’s elected members. Section 50 of the 2011 Act on the NCJ provided that the terms of office of members of the NCJ elected on the basis of the previous Act on the NCJ would last until the end of the period for which they had been elected. 195. Furthermore, the Constitutional Court had underlined in its judgment of 18 July 2007 (no. K 25/07) that only extraordinary circumstances could warrant a breach of the tenure of the NCJ’s members. The applicant submitted that the Government’s argument that there had been no alternative to the shortening of his term of office in connection with the introduction of the new system of electing the NCJ’s judicial members could not be accepted as proportionate or legitimate. He argued that ensuring him the right of access to a court should also be considered as a positive obligation of the State stemming from Article 6 in connection with the Preamble to the Convention. 196. As regards the first condition of the Eskelinen test, the applicant argued that the domestic law had never explicitly excluded access to a court for judicial members of the NCJ whose term of office had been prematurely terminated. The premature termination in his case had been unprecedented. The Act on the NCJ in force at the time of his election to the Council did not provide for such termination, except in the situations provided for in section 14 of the Act. The termination at issue had resulted from the ad hoc application of statute law and lacked the characteristics of abstract legal norms. It could not be concluded that the national law “expressly excluded access to a court” for a claim based on the alleged unlawfulness of the measure at issue. 197. Even assuming that domestic law excluded access to a court in his case, the applicant argued that the exclusion was not based on objective grounds in the State’s interest. Firstly, the exclusion had a significant impact on his status as a judge since he had been elected to the NCJ in his capacity as a judge of an administrative court, not as an ordinary citizen. His election to the NCJ had been aimed at ensuring the proper operation of the NCJ, a body responsible for safeguarding judicial independence. 198. Secondly, the applicant maintained that the intention behind the Constitutional Court’s judgment of 20 June 2017 (no. K 5/17) had been to find defective the method of electing the NCJ’s judicial members. This judgment had to be seen as a false pretext justifying the introduction of changes to the NCJ’s composition at the time when the legislative procedure, initiated by the Ministry of Justice, had been pending in Parliament. Moreover, the impugned judgment was invalid and contrary to the Constitution owing to the participation of Judges M.M. and L.M. in the adjudicating panel. 199. Thirdly, the 2017 Amending Act was in violation of the constitutional principle of the separation of powers. Its objective was not to make the NCJ election procedure more democratic, but to subordinate that body to the legislative and executive powers. 200. Fourthly, the exclusion of the right of access to a court was incompatible with the rule of law. The shortening of the applicant’s term of office could not be regarded as a merely technical measure. Rather, it constituted a serious violation of Article 187 § 3 of the Constitution and interference with the right of access to public service under Article 60 of the Constitution. 201. The fact that the case concerned a member of the NCJ, a body tasked with safeguarding judicial independence, was of significance. The applicant asserted that, as a judicial member of the NCJ, he should have been protected from abuse on the part of the legislative and executive powers. This protection should have been through the oversight of an independent court able to examine the lawfulness of the termination of his term of office. 202. The premature termination of his term of office and that of the other judicial members of the NCJ had initiated a series of events, such as the election of new members to the NCJ and its participation in the nomination procedure for the judges of the two new chambers of the Supreme Court, which had ultimately undermined the stability of the domestic legal and judicial system, and resulted in numerous applications being lodged with the Court and multiple proceedings before the CJEU. It had also to be seen as one of the root causes of the current rule of law crisis in Poland. The NCJ in its current composition was no longer an independent body fulfilling its constitutional mission. Lastly, the fact that the case concerned a judge and a member of the NCJ required stricter scrutiny of the justification for excluding access to a court. 203. The applicant concluded that there had been a serious and genuine dispute over his “right” to serve a full, four-year term of office as the NCJ’s judicial member and that this right was “civil” in nature within the meaning of Article 6 § 1. Accordingly, this provision was applicable to his case. (c) Submissions of third-party interveners 204. The submissions received pertain both to the admissibility and merits of the complaint under Article 6 § 1. (i) European Network of Councils for the Judiciary 205. The intervener is an association of twenty-four judicial councils of member States of the EU. It submitted that councils for the judiciary had a pivotal role to play in ensuring judicial independence and they operated autonomously within the judicial systems of their respective jurisdictions to guarantee, inter alia, the maintenance of the rule of law and the protection of individual rights. In Europe, there were many countries which provided for the establishment of self-governing judicial bodies such as High Councils for the Judiciary and Councils of Justice to protect the independence of judges. There were other jurisdictions where such a body had not been established, but where other independent organs had competence for the administration and financial management of the courts, and in some cases, the appointment and career progression of judges. 206. The ENCJ noted that the composition of a council for the judiciary varied greatly from country to country and depended, inter alia, on the origins of each council. There was, however, an emerging international consensus that the majority of the members of such a council should be judges. The most successful model appeared to be the councils with representation from a combination of members elected from the ranks of legal, academic and civil society, with sufficiently broad powers to promote both judicial independence and accountability. The mechanism for appointing judicial members of a Council should exclude any interference on the part of the executive or the legislature. The judges should be elected solely by their peers and on the basis of a wide representation of the relevant sectors of the judiciary. 207. The ENCJ adopted no formal standard on the length or termination of the term of office of the members of a judicial council and there were no specific international standards on this point. The absence of such standards showed that it was self-evident that the term of office of individual members of constitutionally established bodies entrusted, inter alia, with safeguarding judicial independence could not be prematurely terminated by the executive or legislature. (ii) Amnesty International and International Commission of Jurists 208. The interveners noted that in many European jurisdictions, members of judicial councils played a significant role in the self-governance of the judiciary. They typically held powers relating to judicial appointments, evaluations, promotions and disciplinary proceedings. The international standards cited by the interveners explicitly recognised all of these functions as potentially having an impact on the independence and impartiality of individual judges and of the judiciary as a whole. Removal, or the threat of removal, of a judge from membership of a judicial council during his or her term had the potential to affect his or her personal independence. International standards on the independence of the judiciary enshrined the principle that the political powers should not be responsible for, or otherwise interfere with, the appointment, functioning or removal of members of judicial councils. They referred, inter alia, to the CCJE’s Opinion no. 10 (2007) on the Council for the Judiciary at the service of society. 209. The interveners maintained that appointment as a member of a judicial council differed from appointment as a judge in that it was for a short, fixed term of office to carry out a range of functions, many or all of which could be of a more administrative or quasi-judicial, rather than judicial, character. Nonetheless, the principle of independence of the judiciary necessarily implied a substantial degree of security of tenure for the members of a judicial council, for the duration of their terms of office. In order to ensure such security of tenure and to maintain the independence of individual members of judicial councils, and also the overall capacity of the Council to uphold the independence of individual judges and the independence of the judiciary, proceedings for the removal of a member of a judicial council during his or her term of office should provide guarantees of independence and fairness of the proceedings. Where the Council or its organs exercised a judicial or quasi-judicial role in the removal of judges from office, the grounds and procedure for removal from the Council should resemble those required for removal of a judge from judicial office. 210. These general principles should also be reflected in the application of Article 6 § 1 both as regards its scope of application and in the substance of the protection afforded. 211. The interveners submitted that, when assessing any justification advanced by the State for excluding judges’ access to court in regard to their career and security of tenure, or membership of judicial governance bodies, consideration must be given to the strong public interest in upholding the role, independence and integrity of the judiciary in a democratic society under the rule of law. It could never be in the legitimate interests of the State to deprive judges who were members of judicial councils, of access to court or of the protection of due process in disputes capable of affecting their institutional or individual independence, including in cases that concerned their security of tenure or conditions of service relative to the discharge of judicial governance functions. 212. They further argued that in the assessment of the adequacy of procedural safeguards in accordance with Article 6 § 1, and in considering the justification of any restrictions on aspects of Article 6 § 1 rights in cases concerning the career of judges, consideration should be given to the particular significance of these proceedings for judicial independence and the rule of law, a founding principle of the Convention system. 213. While assessing the application of Article 6 § 1 in the present case, it was important to take account of the broader context of attacks on judicial independence in Poland and to recognise the connection between the individual rights of the applicant and their structural consequences, in this case for the right to fair trial of others, and more fundamentally for the rule of law as a whole. The interveners submitted that various laws adopted and implemented in Poland between 2015 and 2018 have severely undermined the independence of the judiciary and rendered it vulnerable to political influence. 214. They argued that the application of Article 6 § 1 to the present case was manifestly justified because the functioning of the NCJ – without pressure or influence from the executive and legislative branches or other outside forces – was crucial to the overall independence of the judiciary in Poland. The NCJ played an essential role in defending judicial independence, a cornerstone of the rule of law and the protection of human rights. One of the safeguards ensuring the independence of the NCJ was constitutionally protected tenure of its members. Forcible termination of the tenure of NCJ members in March 2018 had both breached individual rights and undermined the NCJ’s ability to safeguard the independence of the judiciary. If judges who were members of the NCJ were at risk of arbitrary removal from the NCJ, its overall functioning as the defender of judicial independence would be impaired to the detriment of individual judges, of the judiciary as an equal branch of government, and of the public, which had the right to an independent and impartial judicial system. (iii) The Helsinki Foundation for Human Rights 215. The Helsinki Foundation for Human Rights submitted that the reform of the NCJ adopted in 2017 had given rise to a serious controversy and been criticised as inconsistent with judicial independence. As regards the stability of the tenure of the NCJ’s members, the intervener argued that judges elected to the NCJ had an entitlement under Polish law to protection against removal from that body. In the past, the law had provided for the possibility of dismissal of elected judicial members of the NCJ by the bodies which elected them. However, until 2017 there had never been a situation in which the judicial members of the NCJ were collectively removed from office by statute. 216. The Constitution of 1997 protected the term of office of the individuals composing the constitutional organs that had been appointed or elected before the entry into force of the Constitution (Article 238 § 1). Similarly, the 2011 Act on the NCJ provided that the terms of office of those members who had been elected on the basis of previous regulations would be respected. In addition, when in 2007 the Parliament adopted a law introducing a new incompatibilitas criterion into the 2001 Act on the NCJ that was to be applicable not only to newly elected members, but also to those who had been elected before the entry into force of the new law, the Constitutional Court ruled that the law was incompatible with the Constitution (judgment of 18 July 2007, no. K 25/07; see paragraphs 82-85 above). 217. The intervener further referred to the Constitutional Court’s judgment of 23 March 2006 declaring unconstitutional the Act providing for ex lege termination of terms of office of members of the National Broadcasting Council, in which that court had underlined the need to secure the stability of tenure (case no. K 4/06; see paragraphs 79-81 above). In another judgment of 9 December 2015 (case no. K 35/15), the Constitutional Court found that the law providing for ex lege removal of the President and Vice-President of the Constitutional Court had violated the Constitution and Article 6 § 1 of the Convention. In the intervener’s opinion, the standards developed by the Constitutional Court in the above rulings could be applied per analogiam to the elected judicial members of the NCJ, especially since their term of office was explicitly regulated in the Constitution. 218. Next, the intervener argued that the ex lege termination of the terms of office of elected judicial members of the NCJ without providing them with access to a court was inconsistent with the principle of the rule of law. The declared purpose of the 2017 Amending Act was the implementation of the Constitutional Court’s judgment of 20 June 2017 (no. K 5/17). In its view, however, the impugned judgment was controversial, firstly because it had been delivered with the participation of two unlawfully elected judges and, secondly, owing to a highly questionable interpretation of the Constitution. The same applied to a subsequent judgment (no. K 12/18) in which the Constitutional Court had upheld the constitutionality of the 2017 Amending Act. In both judgments, the Constitutional Court seemed to ignore the significance of the NCJ’s independence for the independence of the whole judiciary. It also departed from its earlier case-law holding that the Constitution required that the judicial members of the NCJ were elected by judges. Furthermore, the intervener submitted that the Constitutional Court had not specified that its judgment of 20 June 2017 (no. K 5/17) had required the termination of the terms of office of elected judicial members of the NCJ. 219. While deciding whether to terminate the terms of office of the elected members of the NCJ, Parliament should have taken into account the international and constitutional standards of the rule of law. From that perspective, the termination at issue could negatively affect the independence of the NCJ, which in turn could threaten the independence of the judiciary. 220. The intervener noted that the CJEU’s judgment of 19 November 2019 in joined cases A.K. and Others, no. C-585/18, C-624/18 and C ‑ 625/18 concerning the independence of the NCJ and the Disciplinary Chamber of the Supreme Court could be relevant for the interpretation of the Convention in the present case. 221. The intervener did not exclude that in some extraordinary circumstances the termination of terms of office of elected judicial members of the NCJ could be justified. Such a situation might arise if termination would be objectively necessary in order to restore the independence of the NCJ. In order to avoid any abuse in this regard, such a necessity should be a consequence of a judgment of an independent and impartial domestic or international court. (iv) Polish Judges’ Association Iustitia 222. Iustitia is the largest professional association of judges in Poland representing over one-third of all judges. The intervener submitted that the present case did not only concern the individual status of the applicant, but also problems of the utmost importance relating to judicial independence. 223. The intervener noted that the NCJ had a direct impact on the independence of judges, in particular as regards promotion, transfer, disciplinary proceedings, dismissal and early retirement. The NCJ was established by the Act of 20 December 1989 as a result of a bill prepared by lawyers associated with the Solidarity trade union. It was agreed that the majority of its members would be judges elected by judges, and up to the adoption of the 2017 Amending Act the law had maintained that principle. Owing to that Act, Parliament had gained a decisive influence over the Council’s composition and, in effect, made the judicial system an extension of Parliament. This change in the relationship between the judiciary and Parliament had effectively destroyed the independence of the judiciary and, moreover, it had been done without constitutional amendment. 224. The 2017 Amending Act significantly reduced the formal requirements for candidates to the NCJ. Currently, a candidate was required to demonstrate the support of twenty-five judges, equivalent to 0.25% of all judges. Moreover, a candidate had to obtain the support of a political party in the Sejm. The intervener submitted that the judiciary was effectively boycotting the unconstitutional changes. Out of 10,000 judges in Poland only 18 had decided to stand for election to the new NCJ. Some candidates had supported each other and most of them had some links with the Ministry of Justice, i.e. they had been seconded to the Ministry. Once appointed, they had been seconded by the Minister of Justice to higher courts or appointed as Presidents or Vice-Presidents of courts. The relations between the Ministry of Justice and the current members of the NCJ were difficult to ascertain since the endorsement lists for candidates standing for election to the Council had remained confidential, despite a final court judgment ordering their disclosure. 225. The intervener noted that the former NCJ, judges’ associations and numerous assemblies of judges had expressed their disapproval of the new method of electing judicial members of the NCJ. Those actions showed that the new NCJ, which had been elected almost entirely by politicians (23 out of 25 members) did not enjoy the legitimacy in the eyes of judges. From the beginning of its operations in March 2018, the new Council’s work had given rise to controversy, in particular as regards its role in the process of selecting judges. It had become clear that the role of guardian of judicial independence could not be ensured by judges elected by the Sejm. For example, this body did not react to politically motivated disciplinary proceedings against judges. 226. The intervener argued that the termination of the applicant’s term of office formed part of a broader, political context. It was a part of a mechanism aimed at the dismantling of the previous NCJ and, as a result, at dismantling the rule of law and, at the same time, ensuring that candidates for judicial office were elected by a body dependent on the political power. The intervener underlined that the status of the NCJ impacted the status of all judges in Poland appointed to their offices on the proposal of the current Council. For this reason, the independence of the NCJ was crucial for avoiding undue influence from the executive and legislative powers over the judiciary. (v) Judges for Judges Foundation and Professor Laurent Pech 227. The interveners, who focused on the EU dimension of the rule of law crisis in Poland, referred to the key findings made by the European Commission in relation to the new NCJ. In its fourth recommendation of December 2017, the European Commission had suggested to the Polish authorities that the Act on the NCJ should be amended so that the terms of office of its judicial members were not terminated and the new election regime was abandoned. The authorities had ignored the Commission’s concerns and openly gone against its fourth recommendation. The Commission’s assessment had been shared by the European Parliament in its resolution of September 2020. 228. The interveners outlined the findings of the European Commission and the European Parliament as regards the legislative changes made to the judicial system including, inter alia, (i) the lack of effective constitutional review, (ii) changes made to the retirement regime of the Supreme Court judges, (iii) changes made to the structure of the Supreme Court and (iv) changes made to the disciplinary regime for judges. They further provided an overview of the CJEU’s key judgments regarding legislative changes targeting the Polish judiciary and judges. 229. Their conclusion was that in the time since the European Commission had activated its pre-Article 7 TEU procedure in January 2016, the rule of law situation in Poland had gone from bad to worse. Currently, the authorities were actively organising a process of systemic non-compliance with the CJEU’s rulings, but also with the Court’s judgments relating to judicial independence via, inter alia, the active collusion of unlawfully appointed judges, in a broader context where the violation of the fundamental principles underlying the EU legal order had been “legalised” by Poland’s “muzzle law”, i.e. the 2019 Amending Act (see paragraph 25 above). In their opinion, judicial independence had to be understood as having been structurally disabled by the Polish authorities. (vi) The Commissioner for Human Rights of the Republic of Poland 230. The Commissioner noted that during his term of office he had been alarmed by the dismantling of domestic institutions designed to uphold the law and administer justice: the Constitutional Court, the NCJ, the Supreme Court and ordinary courts. Judicial independence was under systemic threat in Poland as the authorities intentionally exerted unlawful pressure on the entirety of judicial structures and subjected some judges to repression. The analysis of changes in the Polish judicial system indicated that the government’s intended strategy was to take control of the process of appointing judges and, in consequence, to influence the content of judicial decisions. In addition to the individual dimension of the present case, it also concerned an issue of a systemic nature, namely that the changes affecting the applicant and other judicial members of the NCJ, involved an illegitimate reconstitution of the NCJ, the body responsible for judicial nominations and upholding judicial independence. 231. In 2018 the authorities re-constituted the NCJ in an unconstitutional manner. This was a deliberate action made shortly before the initiation of the process of selecting more than forty new judges for the Supreme Court. In fact, it was expected that even more positions would soon become vacant in that court following the retirement of its judges as they reached the newly imposed lower retirement age. The intention was to appoint to the Supreme Court persons affiliated with the political authorities. 232. The Commissioner considered that the termination of the term of office of the NCJ’s judicial members had been arbitrary and unconstitutional. Likewise, the election of new judicial members to the NCJ had violated constitutional rules. In line with the Constitution, judicial members of the NCJ were entitled to a full term of office that was applicable at the time of their election. 233. The Commissioner submitted that the Polish Constitution specified two essential functions of the NCJ, each requiring independence of that body. First, the NCJ organised competitions for judicial posts and recommended candidates for appointment to the President of the Republic. Second, the Council was designated as the guardian of judicial independence. There was no entrenched rule of international law obliging States to create a judicial council, although a demand to this effect was firmly embedded in the Council of Europe’s legal area. While Parties to the Convention were not legally bound to establish such council, if they did create one, they should ensure that it could perform the role entrusted to such a body. Since the primary task of a council was to ensure judicial independence, it had to remain independent of other branches of government. 234. The Commissioner noted that since the NCJ’s establishment, a legitimate method of staffing that body was seen as particularly important to enable it to perform its role. Indeed, most of the constitutional rules on the NCJ were dedicated to its composition. All three branches of government were represented in the NCJ. Its composition thus reflected the principle of separation of powers, yet with a clear majority of judges (seventeen out of twenty-five members). Until 2018, fifteen judicial members of the Council were elected by judges. This mechanism was meant to guarantee the independence of the Council from the other powers and constituted a basic premise of its capacity to carry out its constitutional role. The mode of electing judicial members of the NCJ had been introduced at the time of its establishment in 1989, and had been maintained by the 1997 Constitution as well as by the subsequent Acts on the NCJ of 2001 and 2011. It was also supported in the Constitutional Court’s case-law and legal scholarship. 235. The intervener noted that the 2017 Amending Act had forced a premature termination of the term of office of the NCJ’s judicial members, in manifest breach of the relevant constitutional rule. The authorities failed to identify any objective State interest in adopting such a measure and thus the measure should be considered arbitrary. 236. The 2017 Amending Act transferred the competence to elect judicial members of the Council from judicial assemblies to the Sejm, in breach of the Constitution. By prematurely terminating the term of office of the NCJ’s judicial members, the legislative and executive branches granted themselves a decisive influence, or indeed a monopoly over the Council’s composition. Currently, twenty-three out of twenty-five NCJ members were either elected or appointed by those two branches. In most cases, the Sejm elected judges who had some links to the Minister of Justice. 237. The Commissioner maintained that the principle of election of judicial members to the NCJ by their peers had been confirmed by the Constitutional Court in its judgment of 18 July 2007 (no. K 25/07). A different position had been taken by the Constitutional Court in its judgment of 20 June 2017 (no. K 5/17). The constitutional interpretation adopted by the Constitutional Court in the latter judgment was questionable, but even if such a ruling had been delivered by a properly established constitutional court, the Commissioner pointed, inter alia, to the following. Polish constitutional law generally accepted that judgments finding unconstitutionality had a prospective effect. For this reason, the NCJ’s judicial members elected under the previous regulation could have completed their terms of office and the new rules would have been applicable as of the next election. In addition, there was no reasonable argument to question the independence of the previous NCJ for the sole reason that judicial members had been elected for an individual rather than a joint tenure. Most importantly, the Constitutional Court’s judgment should be disregarded because it had been given by a five-judge panel including two unauthorised persons, i.e. persons appointed to posts that had been already properly filled. Hence, the ruling had been delivered by a body that did not meet the requirements of a tribunal “established by law”. Furthermore, the composition of the panel had been manipulated by the President of the Constitutional Court while the case was pending. For example, Judge L.K. had been removed from the panel and replaced by Judge J.P., the Constitutional Court’s President. This decision was arbitrary as it had not been reasoned and had no proper legal basis. The same arguments about manipulating the composition of the bench applied to the Constitutional Court’s judgment of 25 March 2019 (no. K 12/18) which confirmed the earlier Constitutional Court’s judgment. The application in that case had been brought by the new NCJ and had aimed at its own legitimisation. The above indicated that there existed an established pattern of one flawed authority legitimising another flawed authority. 238. The Commissioner proposed that the NCJ’s judicial members should enjoy protection analogous to that offered to judges against removal. This approach was based on the NCJ’s constitutional responsibility as a guardian of judicial independence. In support of his proposal, the Commissioner made the following arguments: (1) the NCJ’s status and the status of its members had to be such as to ensure that it was able to carry out its mission; (2) the NCJ’s decisions directly influenced the status of judges; the independence of judges was (3) absolute and (4) indivisible; and (5) persons with the attribute of independence should have a decisive say in the council. The requirement that judges should form the majority of a council was based on the assumption that they brought their integrity and independence into the council. The concept of indivisibility of judicial independence was at the heart of the CJEU landmark judgment in the case of Portuguese Judges (judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C ‑ 64/16). This should be applied, mutatis mutandis, to the present context. 239. The Commissioner submitted that, as an alternative, the NCJ’s judicial members should be afforded protection in the form of the right of access to a court recognised in the Eskelinen case-law. (vii) The UN Special Rapporteur on the Independence of Judges and Lawyers 240. Following his official mission to Poland in October 2017, the UN Special Rapporteur presented a comprehensive report to the Human Rights Council in June 2018. He noted with concern the threat to the independence of the Polish judiciary. 241. The intervener presented the essence of the official findings and recommendations made at the United Nations regarding the rule of law crisis in Poland. He acknowledged that the power of the Government to undertake reforms of the judiciary could not be questioned. Nonetheless, any reform of the judicial system should aim at improving its effectiveness, not at undermining the independence of the judiciary and its governing bodies. 242. After the general election in October 2015, the parliamentary majority and the President of the Republic took a coordinated set of actions and adopted a vast array of legal amendments to the legislation regulating the functioning of the judiciary, including the ordinary courts, the Supreme Court and the NCJ. The Special Rapporteur raised concerns about the compliance of these reforms with international legal standards relating to the independence of the judiciary. He underlined that the various legislative acts and measures adopted by the authorities had severely undermined the independence of the judiciary and eroded the possibilities of checks and balances. 243. The intervener referred to judicial governance as the set of institutions, rules and practices that organise, facilitate and regulate the exercise by the judicial branch of its function. In Europe, traditionally the governance of the judiciary was the responsibility of the executive. However, at least since the end of World War II, concerns about judicial independence and judicial accountability had led, in many countries, to the executive gradually losing its monopoly on judicial governance in favour of separate institutions with powers over the career of judges or the management of the judiciary. Some countries had established self-governing judicial bodies, such as judicial councils, in order to protect the independence of the judiciary. The underlying rationale was the need to insulate the judiciary and judicial career processes from external political pressure. Judicial councils often functioned as intermediaries between Governments and the judiciary and operated autonomously within the judicial system of their respective jurisdictions to guarantee, inter alia, the maintenance of the rule of law and the protection of human rights. Several Special Rapporteurs had recommended that States establish an independent body in charge of the selection and discipline of judges and to adopt appropriate measures to guarantee a pluralist and balanced composition of that body. 244. The intervener noted that with high indifference to the United Nations’ standards the Polish authorities had passed the 2017 Amending Act, targeting the operation and composition of the NCJ. The main objective of this Act was to amend the procedure for the selection of the judicial members of the NCJ. The 2017 Amending Act had allowed the legislature to influence the selection of judges which had resulted in undue political interference in the overall administration of justice. The intervener was concerned about section 5 of the 2017 Amending Act which terminated the terms of office of fifteen judicial members of the NCJ. Such termination was arbitrary, clearly unconstitutional and in breach of international human rights standards recognising, inter alia, the right of access to an impartial and independent tribunal. It further interfered with the guarantees of independence enjoyed by the NCJ. 245. The intervener opined that judicial councils played a crucial role in guaranteeing the independence of the judiciary and should themselves be independent. They should be free from any form of interference from the executive and legislative branches. To ensure that such a body can discharge its functions objectively and independently, the judiciary must have a substantial say with respect to selecting its members. The dismissal of its members must comply with international human rights standards, including due process guarantees. Under United Nations standards, judges appointed to judicial councils, should be afforded the same guarantees as those granted to judges exercising judicial functions, including the right to a fair hearing in case of discipline, suspension or removal. 246. The Special Rapporteur emphasised that the judicial reform implemented by the Polish Government had had an adverse effect on the independence of the judiciary. In his assessment, “the series of reforms undertaken by the Government, presented as a cure, appeared to have been worse than the disease”. He noted that the independence of the judiciary and the separation of powers must constitute the guiding principles of any judicial reform. The intervener was in favour of extending the application of the principle of irremovability of judges to judicial members of the NCJ and affording them the appropriate judicial safeguards provided for in various international human rights instruments. (viii) The Government of Denmark 247. The Danish Government maintained that an efficient, impartial and independent judiciary was the cornerstone of the rule of law and of any functioning system of democratic checks and balances. The question of the independence of the NCJ and its judicial members following the 2017 Amending Act was the subject of legal proceedings before the CJEU. The Court should take into account those proceedings as it had never considered the provisions of the Convention as the sole framework of refence for the interpretation of the rights and freedoms enshrined therein. The Danish Government referred to the CJEU’s judgment of 19 November 2019 in A.K. and Others (C-585/18, C-624/18 and C-625/18) which identified in §§ 143 ‑ 144 a number of factors for the purposes of assessing the independence of a body such as the NCJ. Subsequent to this CJEU judgment, the Polish Supreme Court held in the rulings of 5 December 2019 and 15 January 2020 that the NCJ in its current composition was not a body independent of the legislature and the executive branch. 248. On this basis, the Danish Government submitted that the Court should determine that the 2017 Amending Act had undermined the independence of the NCJ and its judicial members and, consequently, considering the key role of the NCJ in appointing judges in Poland, had called into question the independence of the Polish judiciary as a whole. Accordingly, the application of Article 6 §1 to the present case, having regard also to the systemic nature of the case and possible widespread effects of these proceedings, was manifestly justified as it could contribute to maintaining the independence of the NCJ and, thus, to restoring its constitutional role of ensuring the independence of the courts and the rule of law in Poland. 249. The Danish Government asserted that, similarly to the case of Baka v. Hungary, the terms of office of the applicant and the other previous judicial members of the NCJ had been prematurely terminated ex lege, interrupting a constitutionally guaranteed four-year term, without providing them with access to a court. In this connection, they referred to the CJEU’s judgment of 2 March 2021 in A.B. and Others (C-824/18). In that judgment the CJEU stated that the possible absence of any legal remedy in the context of a process of appointment to judicial positions may prove to be problematic where all the relevant contextual factors, such as those laid down in §§ 143 ‑ 144 of the A.K. and Others judgment, charactering such an appointment process may give rise to systemic doubts as to the independence and impartiality of judges appointed at the end of that process. 250. Those considerations, having regard to the contextual factors relating to the 2017 Amending Act and the new NCJ, must analogously hold true as regards the ex lege termination of the terms of office of the applicant and other previous judicial members of the NCJ. Taking note of the special role in society of the judiciary and the public confidence it must enjoy, the Danish Government found that the lack of access to a court in connection to the premature termination of the terms of office of the previous judicial members of the NCJ was not in accordance with Article 6 § 1 or the standards of the rule of law. 251. In view of the Court’s assessment of any grounds advanced by the respondent State on the basis of the Eskelinen test as to the legitimacy of excluding the previous judicial members from the protection of Article 6 § 1, the Danish Government requested the Court to consider such grounds in light of the contextual factors mentioned, having regard to the prominent place of the independent judiciary and the right to a fair trial in a democratic society as well as the particular attention which must be paid to the protection of members of the judiciary against measures affecting their status or career that could threaten their judicial independence. (ix) The Government of the Kingdom of the Netherlands 252. The Dutch Government submitted that the context of the present case concerned the large-scale judicial reforms in Poland. Those reforms had caused widespread concern since they raised questions as to the independence of the judiciary. They also had resulted in several cases before the CJEU in which the Dutch Government had intervened. 253. The present case was of importance as regards the normative impact of the rule of law on interpreting Convention rights. The rule of law was one of the three pillars of the Council of Europe that sought to achieve a greater unity between its members, as articulated in Article 1 of the Statute of the Council of Europe. In the preamble to the Statute, the rule of law was mentioned as one of the principles which formed the basis of all genuine democracies. Furthermore, Article 3 of the Statute required every member to accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms. This formed the basis for the reference by the Court to the rule of law as being one of the “fundamental components of the European public order”. 254. The principle of the rule of law was not provided for in the provisions of the Convention or its Protocols. However, it was expressly articulated in the Preamble to the Convention which made reference to this principle as part of the common heritage of European countries. The rule of law did not embody one single element but consisted of several components. In its 2011 report on the Rule of Law the Venice Commission had concluded that it included the following elements: (1) legality, including a transparent, accountable and democratic process for enacting law, (2) legal certainty, (3) prohibition of arbitrariness, (4) access to justice before independent and impartial courts, including judicial review of administrative acts, (5) respect for human rights, and (6) non-discrimination and equality before the law. 255. In its case-law the Court had taken into account the elements of the rule of law when interpreting the Convention rights. In doing so, the Court had contributed to rendering concrete the notion of rule of law as a fundamental component of European public order for the protection of human rights and fundamental freedoms. The Court had made it clear that the rule of law was a principle underlying the Convention. In Golder v. the United Kingdom, the Court had stated that the rule of law was “one of the features of the common spiritual heritage of the member States of the Council of Europe”. In Engel and Others v. the Netherlands, it had said that from the rule of law “the whole Convention draws its inspiration”. In many subsequent cases, the Court had consistently viewed the rule of law as “inherent in all the Articles of the Convention”. This was particularly true for Article 6 of the Convention which provided for the right to a fair hearing before an independent and impartial tribunal. 256. It followed from the above that the independence of the judiciary was an underpinning element of the rule of law and thus of the protection of human rights. The CJEU had also confirmed this in its judgment of 24 June 2019, Commission v. Poland ( Independence of the Supreme Court ), C ‑ 619/18, finding that the independence of the judiciary gave concrete expression to the value of the rule of law. Ensuring the independence of a judicial body did not necessarily imply that the executive or legislative powers could not have any role in the selection of members of that body. However, their role must be embedded in the law and there must be safeguards to ensure the independence of the members of the judicial body, thereby ensuring the independence of the judiciary as such. (d) The Court’s assessment (i) General principles 257. For Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether that right is protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, among many other authorities, Baka v. Hungary [GC], no. 20261/12, § 100, 23 June 2016; Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 71, 29 November 2016; Károly Nagy v. Hungary [GC], no. 56665/09, § 60, 14 September 2017; and Regner v. the Czech Republic [GC], no. 35289/11, § 99, 19 September 2017). Lastly, the right must be a “civil” right (see Mennitto v. Italy [GC], no. 33804/96, § 23, ECHR 2000 ‑ X). 258. Article 6 § 1 does not guarantee any particular content for civil “rights and obligations” in the substantive law of the Contracting States: the Court may not create by way of interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned (see, for example, Roche v. the United Kingdom [GC], no. 32555/96, § 119, ECHR 2005 ‑ X; Boulois v. Luxembourg [GC], no. 37575/04, § 91, ECHR 2012; and Károly Nagy, cited above, § 61). 259. In order to decide whether the “right” in question has a basis in domestic law, the starting point must be the provisions of the relevant domestic law and their interpretation by the domestic courts (see, for example, Al-Dulimi and Montana Management Inc. v. Switzerland [GC], no. 5809/08, § 97, 21 June 2016). The Court reiterates that it is primarily for the national authorities, in particular the courts, to resolve problems of interpretation of domestic legislation. Unless the interpretation is arbitrary or manifestly unreasonable, the Court’s role is confined to ascertaining whether the effects of that interpretation are compatible with the Convention (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 149, 20 March 2018; S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, § 148, 22 October 2018; and Molla Sali v. Greece [GC], no. 20452/14, § 149, 19 December 2018). Thus, where the superior national courts have analysed in a comprehensive and convincing manner the precise nature of the impugned restriction of access to a court, on the basis of the relevant Convention case-law and principles drawn therefrom, this Court would need strong reasons to differ from the conclusion reached by those courts by substituting its own views for those of the national courts on a question of interpretation of domestic law and by finding, contrary to their view, that there was arguably a right recognised by domestic law (see Károly Nagy, § 62; see also Roche, § 120, both cited above). 260. With regard to the “civil” nature of the right, the Court has noted that an employment relationship between a public-law entity, including the State, and an employee may be based, according to the domestic provisions in force, on the labour-law provisions governing relations between private individuals or on a body of specific rules governing the civil service. There are also mixed systems, combining the rules of labour law applicable in the private sector with certain specific rules applicable to the civil service (see Regner, cited above, § 106). 261. As regards public servants employed in the civil service, according to the criteria established in Vilho Eskelinen and Others v. Finland ([GC], no. 63235/00, ECHR 2007 ‑ II) the respondent State cannot rely before the Court on the applicant’s status as a civil servant to exclude the protection embodied in Article 6 unless two conditions are fulfilled. First, the State in its national law must have expressly excluded access to a court for the post or category of staff in question. Secondly, the exclusion must be justified on objective grounds in the State’s interest. In order for the exclusion to be justified, it is not enough for the State to establish that the civil servant in question participates in the exercise of public power or that there exists a special bond of trust and loyalty between the civil servant and the State, as employer. It is also for the State to show that the subject matter of the dispute in issue is related to the exercise of State power or that it has called into question the special bond. Thus, there can in principle be no justification for the exclusion from the guarantees of Article 6 of ordinary labour disputes, such as those relating to salaries, allowances or similar entitlements, on the basis of the special nature of the relationship between the particular civil servant and the State in question. There will, in effect, be a presumption that Article 6 applies. It will be for the respondent State to demonstrate, first, that a civil servant applicant does not have a right of access to a court under national law and, secondly, that the exclusion of the rights under Article 6 for the civil servant is justified (see Vilho Eskelinen and Others, § 62; Baka, § 103; and Regner, § 107, all cited above). 262. Whilst the Court stated in Vilho Eskelinen and Others (cited above, § 61) that its reasoning in that case was limited to the situation of civil servants, it has extended the application of the criteria established in that judgment to various disputes regarding judges. It has noted that although the judiciary is not part of the ordinary civil service, it is considered part of typical public service (see Baka, cited above, § 104). 263. The Court has applied the criteria set out in Vilho Eskelinen and Others (cited above) to all types of disputes concerning judges, including those relating to recruitment/appointment (see Juričić v. Croatia, no. 58222/09, 26 July 2011), career/promotion (see Dzhidzheva-Trendafilova v. Bulgaria (dec.), no. 12628/09, 9 October 2012, and Tsanova-Gecheva v. Bulgaria, no. 43800/12, 15 September 2015, §§ 85-87), transfer (see Tosti v. Italy (dec.). no. 27791/06, 12 May 2009 and Bilgen v. Turkey, no. 1571/07, § 79, 9 March 2021), suspension (see Paluda v. Slovakia, no. 33392/12, §§ 33-34, 23 May 2017, and Camelia Bogdan v. Romania, no. 36889/18, § 70, 20 October 2020), disciplinary proceedings (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 120, 6 November 2018; Di Giovanni v. Italy, no. 51160/06, §§ 36 ‑ 37, 9 July 2013; and Eminağaoğlu v. Turkey, no. 76521/12, § 80, 9 March 2021), as well as dismissal (see Oleksandr Volkov v. Ukraine, no. 21722/11, §§ 91 and 96, ECHR 2013; Kulykov and Others v. Ukraine, nos. 5114/09 and 17 others, §§ 118 and 132, 19 January 2017; Sturua v. Georgia, no. 45729/05, § 27, 28 March 2017; Kamenos v. Cyprus, no. 147/07, §§ 82 ‑ 88, 31 October 2017; and Olujić v. Croatia, no. 22330/05, §§ 31-43, 5 February 2009), reduction in salary following conviction for a serious disciplinary offence (see Harabin v. Slovakia, no. 58688/11, §§ 118-123, 20 November 2012), removal from post (for example, President of the Supreme Court, President of the Court of Appeal or Vice-president of the Regional Court) while remaining a judge (see Baka, cited above, §§ 34 and 107-111; Denisov v. Ukraine [GC], no. 76639/11, § 54, 25 September 2018; and Broda and Bojara, cited above, §§ 121-123) or judges being prevented from exercising their judicial functions after legislative reform (see Gumenyuk and Others v. Ukraine, no. 11423/19, §§ 61 and 65-67, 22 July 2021). It has also applied the Eskelinen criteria to a dispute regarding the premature termination of the term of office of a chief prosecutor (see Kövesi v. Romania, no. 3594/19, §§ 124 ‑ 125, 5 May 2020). 264. Furthermore, the employment relationship of judges with the State must be understood in the light of the specific guarantees essential for judicial independence. Thus, when referring to the “special trust and loyalty” that they must observe, it is loyalty to the rule of law and democracy and not to holders of State power. This complex aspect of the employment relationship between a judge and the State makes it necessary for members of the judiciary to be sufficiently distanced from other branches of the State in the performance of their duties, so that they can render decisions a fortiori based on the requirements of law and justice, without fear or favour. It would be a fallacy to assume that judges can uphold the rule of law and give effect to the Convention if domestic law deprives them of the guarantees of the Articles of the Convention on matters directly touching upon their individual independence and impartiality (see Bilgen, § 79, and Broda and Bojara, § 120, both cited above). (ii) Application of the general principles to the present case 265. The Court notes that the present case raises a novel issue, namely the question whether Article 6 § 1 under its civil head is applicable to a dispute arising out of the premature termination of the applicant’s term of office as a judicial member of the NCJ, while he still remains a serving judge. (α) Existence of a right 266. The Court notes that the applicant is a Supreme Administrative Court judge. On 11 January 2016 he was elected to the NCJ for a period of four years by the General Assembly of Judges of the Supreme Administrative Court with the participation of the Representatives of the General Assemblies of Judges of the Regional Administrative Courts, in accordance with the relevant provisions of the Constitution and the applicable legislation. 267. The Constitution expressly provides in Article 187 § 3 that members of the NCJ are elected for a four-year term of office. Section 14(1) of the 2011 Act on the NCJ, as applicable at the time of the applicant’s election to the Council, contained an exhaustive list of reasons for terminating the term of office of elected members of the NCJ before the expiry of their term (death, resignation, appointment to another judicial post, termination of the member’s judicial office and retirement; see paragraph 68 above). Under this provision, the only permissible grounds for early termination of the term of office are either of an objective nature (death, termination of judicial office or retirement) or stem from the member’s own decision or initiative (resignation or appointment to another judicial post). 268. In determining whether there was a legal basis for the right asserted by the applicant, the Court needs to ascertain only whether the applicant’s arguments were sufficiently tenable, not whether he would necessarily have been successful had he been given access to a court (see Neves e Silva v. Portugal, 27 April 1989, § 37, Series A no. 153 ‑ A, and Bilgen, cited above, § 53). In the light of the domestic legal framework in force at the time of his election and during his term of office, the Court considers that the applicant could arguably claim an entitlement under Polish law to protection against removal from his position as a judicial member of the NCJ during that period (see, mutatis mutandis, Baka, cited above, § 109). 269. The Court considers, moreover, that the applicant’s claim to be entitled to serve his full term as a judicial member of the NCJ finds support in the fact that the NCJ is a body mandated by the Constitution to safeguard the independence of courts and judges (see Article 186 of the Constitution). The Court will revert to this issue subsequently in its analysis. 270. The Court reiterates that although there is, in principle, no right under the Convention to hold a public post related to the administration of justice (see Dzhidzheva-Trendafilova, § 38, and Denisov, § 46, both cited above), such a right may exist at the domestic level. The Court is satisfied that this is the situation in the present case, since Article 187 § 3 of the Constitution provides for, and therefore protects, the four-year term of the elected members of the NCJ. In this connection, the Government’s argument that under Polish law there is no right to exercise public authority does not carry much weight, as the applicant is not claiming such a right. Rather, he claims the right to serve the term of office for which he was lawfully elected. Similarly, another argument of the Government, that election as member of the NCJ did not constitute “employment”, cannot be dispositive of the issue, having regard to the constitutional basis for the four-year tenure under Article 187 § 3 of the Constitution. The applicant further relied on Article 60 of the Constitution, guaranteeing the right of access to public service, as a supplementary argument for the proposition that he had had the right to serve a full term, while the Government rejected this. The Court considers that there is no need for it to take a stance on this argument since Article 187 § 3 of the Constitution arguably provides in itself a sufficient basis for a “right” for the purposes of Article 6. 271. The Court notes that the constitutional protection of the security of tenure of elected judicial members of the NCJ was not called into question until the current parliamentary majority introduced a bill amending the 2011 Act on the NCJ on 14 March 2017, ultimately culminating in the enactment of the 2017 Amending Act (see paragraphs 35 and 46-50 above). 272. The Court observes that the Constitutional Court, in its key judgment of 18 July 2007 (no. K 25/07) regarding the status of the NCJ, considered that the Constitution did not provide for the removal of judicial members of the NCJ from that body before the expiry of their term of office and that the NCJ was a constitutional body based on the tenure of elected members (see paragraphs 84-85 above). The only permissible exceptions were exhaustively specified in the then applicable 2001 Act on the NCJ, all of which related to objective inability to hold such office. These exceptions are similar to those laid down in section 14 of the 2011 Act on the NCJ, which were applicable at the time relevant to the present application. 273. In the same judgment of 18 July 2007, the Constitutional Court examined a new statutory provision which was to be applied to the sitting judicial members of the NCJ and could have resulted in the early termination of their term of office. It held that to introduce a new obligation on a person holding such office would, in principle, be permissible only if, first, it was justified by extraordinary, constitutionally valid reasons, and second, an adjustment period was provided. The Constitutional Court considered it appropriate to examine the impugned regulation on termination of office of judicial members of the NCJ in the light of the principle of proportionality. It found that the impugned regulation constituted a disproportionate interference with the constitutionally determined system of appointment and functioning of the NCJ. It held that changes of such a nature, if they were to be compatible with the principle of tenure, would have to be implemented with effect from the beginning of the next term of office of the Council members (see paragraph 85 above). 274. The Court observes that in enacting the new Act on the NCJ in 2011 the legislature also respected the terms of office of members elected on the basis of the previous regulation (see paragraph 69 above). It can further be noted that Article 238 § 1 of the 1997 Constitution, one of its transitional provisions, protected the term of office of the constitutional bodies or individuals composing them who had been appointed or elected under the provisions that had been applicable before the Constitution’s entry into force (see paragraph 66 above). These constitutional and statutory provisions are further indicators of the importance attached by domestic law to the security of tenure of constitutional bodies and their members, including the NCJ. 275. The Government argued that the 2017 Amending Act was adopted with a view to implementing the Constitutional Court’s judgment of 20 June 2017 (no. K 5/17), in which that court held that the term of office of all elected members of the NCJ should have been of a joint nature, i.e. starting and ending on the same date (see paragraph 42 above). In the Government’s view, the termination of the applicant’s term of office resulting from the 2017 Amending Act was thus legitimate and proportionate since it was aimed at establishing a new term of office consonant with the Constitutional Court’s interpretation of the relevant constitutional provisions in the judgment of 20 June 2017. 276. The applicant contested the validity of the Constitutional Court’s judgment of 20 June 2017, inter alia, on the grounds that it had been given by a bench including Judges M.M. and L.M., who, in his submission, had not been duly elected to that court. 277. In this connection, the Court would note the following. In its judgment in Xero Flor w Polsce sp. z o.o. v. Poland (no. 4907/18, 7 May 2021, §§ 289-291) the Court held that there had been a violation of Article 6 § 1 as regards the applicant company’s right to a “tribunal established by law” on account of the presence on the bench of the Constitutional Court of Judge M.M., whose election it found to have been vitiated by grave irregularities. The same considerations cannot but apply to Judge L.M., who was elected in the same procedure as Judge M.M. (ibid., §§ 19 and 289). In the light of the Xero Flor judgment, the presence of the two judges mentioned above on the five-judge bench of the Constitutional Court which gave the judgment of 20 June 2017 (no. K 5/17) necessarily calls into question the validity and legitimacy of that judgment. The Court refers in this respect to the judgment of 5 December 2019 (no. III PO 7/18) of the Supreme Court which, following the preliminary ruling of the CJEU in A.K. and Others, also concluded that the impugned judgment of the Constitutional Court had been given with the participation of judges elected in breach of the Constitution, as had been established in several judgments of the Constitutional Court (see paragraphs 102 and 105 above). 278. In any event, the Court notes that that Constitutional Court judgment did not specifically require the termination of the terms of office of the sitting judicial members of the NCJ. This point was made at the time by the Venice Commission in its opinion of 8-9 December 2017 (see paragraph 132 above) and has been repeated by the Helsinki Foundation for Human Rights in its third-party submissions (see paragraph 218 above). Furthermore, the impugned judgment did not and could not put an end to the four-year term of office for elected members of the NCJ as guaranteed by Article 187 § 3 of the Constitution. It did not identify any extraordinary, constitutionally valid reasons that could exceptionally justify the early termination of the tenure of the Council’s elected judicial members. Nor did the Constitutional Court give proper consideration in judgment no. K 5/17 or in judgment no. K 12/18 to its case-law requiring that changes to the status of members of constitutional bodies either be accompanied by an appropriate adjustment period or apply from the beginning of a new term of office (see paragraphs 77-85 above). 279. The Court is not persuaded by the Government’s assertion that the implementation of the judgment of 20 June 2017 could not have been accomplished without the shortening of the terms of office of the sitting judicial members of the NCJ. Nor is it convinced that the introduction of a new system without such shortening would have both unduly extended that process over time and complicated it. The Court considers that there were clearly certain alternative measures that could have been taken which would have respected the general rule of the four-year term of office in Article 187 § 3 of the Constitution, while giving effect to the said judgment. For example, and despite the Government’s argument to the contrary, the then-sitting judicial members could have remained in their positions until their original term of office expired, while new members could have been elected for a shorter period. In its opinion adopted on 8-9 December 2017, the Venice Commission proposed precisely that alternative (see paragraph 132 above). A similar view was expressed by GRECO (see paragraph 141 above). In the Court’s view, having regard to the Constitutional Court’s judgment of 18 July 2007 (no. K 25/07), the premature termination of the terms of the elected judicial members of the NCJ clearly raised an issue of proportionality. As stated by the Constitutional Court in that judgment, such changes should have been accompanied by an appropriate adaptation period or, alternatively, should have applied from the beginning of a new term of office (see paragraph 85 above). However, neither of these alternatives was chosen in the 2017 Amending Act. 280. Additionally, even though the Government maintained that the termination of the applicant’s term of office, as provided for in the 2017 Amending Act, was prompted by the need to implement the Constitutional Court’s judgment of 20 June 2017, the Court notes that the same measure had already been included in the first bill introduced by the government in the Sejm on 14 March 2017. 281. Furthermore, the Court observes that the Supreme Court, in its judgment of 5 December 2019 (no. III PO 7/18), analysed in detail the Constitutional Court’s finding in the judgment of 20 June 2017 (no. K 5/17) that the relevant provisions of the 2011 Act on the NCJ were unconstitutional to the extent that they provided for an individual term of office of the NCJ’s judicial members. The Supreme Court found that the systemic ( systemowa ) interpretation of the Constitution on which the Constitutional Court had attempted to rely in that judgment contradicted its findings (see paragraph 105 above). The Supreme Court’s position in the judgment of 5 December 2019 (no. III PO 7/18) was confirmed by the same court in its subsequent resolution of the three joined Chambers of 23 January 2020 (see paragraph 112 above). 282. The Court is satisfied that, having regard to the terms of Article 187 § 3 of the Constitution, there was in domestic law an arguable right for a judge elected to the NCJ to serve a full term of office, save for the exhaustively enumerated statutory exceptions in section 14(1) of the 2011 Act on the NCJ (see, mutatis mutandis, Baka, cited above, § 107; and Loquifer v. Belgium, nos. 79089/13 and 2 others, § 33, 20 July 2021, which concerned a non ‑ judicial member of the High Council of Justice). 283. The Court notes that section 10(1)3 of the 2001 Act on the NCJ provided that the four-year term of office of elected members of the Council could be prematurely terminated in the event of revocation by the electing authority, i.e. a judicial member of the Council could have been revoked by the relevant assembly of judges that had elected him or her. However, that possibility was not provided for in the 2011 Act on the NCJ, which was applicable to the applicant’s election to the Council, and so it is not relevant for the analysis of the applicant’s case. Accordingly, the Court is not called upon to consider the conditions in which such a revocation may or may not be Convention-compliant. 284. The Court also takes note of the fact that numerous Council of Europe and other international bodies have consistently supported the view that the judicial members of the NCJ were entitled to serve a full term of office: the Parliamentary Assembly of the Council of Europe; the Council of Europe Commissioner for Human Rights; the Venice Commission; the CCJE; GRECO; the OSCE/ODIHR; the UN Special Rapporteur on the Independence of Judges and Lawyers; the European Parliament and the European Commission (see respectively paragraphs 126, 134, 132, 137 and 139, 141, 144, 122, 167 and 164-165 above). 285. The Court considers that the fact that the applicant’s term of office was terminated ex lege on the date of election of new members of the NCJ (see paragraph 54 above) cannot be regarded as removing, retrospectively, the arguability of the right that he could claim under the rules in force at the time of his election. As noted above, these rules clearly established a term of four years and enumerated exhaustively the specific grounds on which it could be terminated. Since it was this new legislation (the 2017 Amending Act) which set aside the former rules, it constituted the object of that very “dispute” in regard to which the Article 6 § 1 fair-hearing guarantees were arguably to apply. In the circumstances of the present case, the question whether a right existed under domestic law cannot therefore be answered on the basis of the new legislation (see Baka, cited above, § 110). 286. In the light of the foregoing, the Court finds that in the present case there was a genuine and serious dispute over a “right”, namely to serve a full term of four years as a judicial member of the NCJ, which the applicant could claim on arguable grounds under domestic law (see, mutatis mutandis, Baka, cited above, § 111; Denisov, cited above, §§ 47-49; and Kövesi v. Romania, no. 3594/19, § 116, 5 May 2020). (β) Civil nature of the right: the Eskelinen test 287. The next issue to be determined is whether the “right” claimed by the applicant was “civil” within the autonomous meaning of Article 6 § 1. The Court reiterates that the concept of “civil rights and obligations” cannot be interpreted solely by reference to the respondent State’s domestic law; it is an “autonomous” concept deriving from the Convention (see, among many other authorities, Naït-Liman v. Switzerland [GC], no. 51357/07, § 106, 15 March 2018). 288. In their written and oral submissions, the parties addressed this issue in the light of the criteria developed in Vilho Eskelinen and Others (cited above), having been invited to do so by the Court. This case-law was developed in the context of ordinary labour disputes between civil servants and the public authority that employs them (ibid., § 61). As recalled above, it has since been applied to many types of disputes involving judges and concerning their service or their careers, as although not part of the ordinary civil service the judiciary forms part of typical public service (see paragraphs 262-263 above). As already noted, the novel aspect of this case is that it concerns not the principal professional activity of the applicant, as a judge, but the serving of his full term of office as an elected judicial member of the NCJ. Taking account of this, and also of the more prominent public law features of the case, the Court considers that some development of the Vilho Eskelinen test is appropriate as regards the first condition. ‒ The first condition of the Eskelinen test 289. In the present case the parties offered different interpretations of domestic law and consequently their views diverged starkly on the question of compliance with the first condition of the Eskelinen test. The Government argued that the Act on the NCJ had never provided for any form of appeal or remedy in connection with the expiry, termination or renunciation of the office of members of this body. In addition, that office was considered to be of a public-law nature. In their view, Polish law excluded access to a court for claims relating to termination of office of judicial members of the NCJ. The applicant maintained that there had been no provision of national law “expressly” excluding access to a court for a claim based on the alleged unlawfulness of the termination of his term of office. 290. The Court recalls that in the Baka judgment it examined a situation where the applicant’s access to a court had been impeded, inter alia, by the fact that the impugned measure, namely the premature termination of his term of office as President of the Supreme Court, had been included in the Transitional Provisions of the Fundamental Law. This had precluded Mr Baka from contesting that measure before the relevant judicial body, which he would have been able to do in the event of dismissal on the basis of the previous legal framework (see Baka, cited above, § 115). In that context, the Court considered that it had to determine whether access to a court had been excluded under domestic law prior to the time, rather than at the time, when the impugned measure concerning the applicant was adopted. To hold otherwise would have meant that the impugned measure itself, which constituted the alleged interference with the applicant’s “right”, could at the same time be the legal basis for the exclusion of the applicant’s claim from access to a court, thereby opening the way to abuse (ibid., § 116). However, the present case concerns a different situation where, according to the Government, Polish law has at all times excluded access to a court for the claim asserted by the applicant. 291. The Court will now take the opportunity offered by the present case to further develop the first condition of the Eskelinen test. It observes that this condition is deliberately strict, given that it is part of a test that, if fully satisfied, will rebut the presumption of the applicability of Article 6 to ordinary labour disputes involving civil servants (see Vilho Eskelinen and Others, cited above, § 62), excluding them from one of the most fundamental entitlements provided for in the Convention, the right to a court. The strict nature of this condition is borne out by the fact that it has been seldom satisfied (see Bilgen, cited above, § 70). Only very rarely has a respondent State been able to show that access to a court was expressly excluded for an applicant (see Baka, cited above, § 113 and the cases referred to therein). As the two conditions stipulated in the Eskelinen judgment are cumulative, where the first one is not met, that suffices already to find that Article 6 is applicable, without there being any need to consider the second limb of the test (see Baka, cited above, § 118). 292. The Court considers that a straightforward application of the first condition would not be entirely apt in all situations. It is therefore prepared to accept that the first condition can be regarded as fulfilled where, even without an express provision to this effect, it has been clearly shown that domestic law excludes access to a court for the type of dispute concerned. Thus, first of all, this condition is satisfied where domestic law contains an explicit exclusion of access to a court. Secondly, the same condition may also be satisfied where the exclusion in question is of an implicit nature, in particular where it stems from a systemic interpretation of the applicable legal framework or the whole body of legal regulation. 293. In this connection, the Government argued that Polish law excluded access to a court for a claim based on the alleged unlawfulness of the termination of the applicant’s term of office as a judicial member of the NCJ (see paragraphs 180-181 above). However, in responding to the complaint under Article 13 of the Convention, they asserted that the applicant could have obtained a ruling on his claim by lodging a constitutional complaint with the Constitutional Court, thus suggesting the existence of a judicial channel to deal with the applicant’s claim. The applicant referred to the limitations of a constitutional complaint and argued that this remedy would not have been available to him in the absence of any prior decision given in connection with the termination of his term of office; thus his complaint would have been rejected as inadmissible (on the effectiveness of a constitutional complaint in Poland, see Xero Flor w Polsce sp. z o.o., cited above, §§ 197-200, and the case-law cited therein). The applicant also asserted that domestic law did not and never had explicitly excluded access to a court for claims relating to the premature termination of the term of office of judicial members of the NCJ (see paragraph 196 above). 294. The Court notes the opposing views of the parties as to whether the first condition of the Eskelinen test has been satisfied here (see paragraphs 180-181 and 196 above). It considers that this question can be left open, since in any event, for the reasons set out below, the second condition has not been met. ‒ The second condition of the Eskelinen test 295. The Court will now analyse whether, in the present case, the exclusion of access to a court is justified on objective grounds in the State’s interest. 296. As regards the second condition, the Government submitted that the applicant’s complaint related to the exercise of State power. The Court reiterates that according to the approach adopted in Vilho Eskelinen, the mere fact that the applicant is in a sector or department which participates in the exercise of power conferred by public law is not in itself decisive. The Government did not explain why the exercise of public authority by judicial members of the NCJ did not merit protection, bearing in mind that this body is tasked with protecting judicial independence (see, mutatis mutandis, Baka, cited above, § 103). 297. The applicant argued, inter alia, that the exclusion of the right of access to a court in his case was incompatible with the rule of law. He submitted that as a member of the NCJ, a body charged with safeguarding judicial independence, he had to be protected from abuse on the part of the other powers. 298. The right of access to a court under Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which, in its relevant part, declares the rule of law to be part of the common heritage of the Contracting States (see Golder v. the United Kingdom, 21 February 1975, § 34, Series A no. 18; McElhinney v. Ireland [GC], no. 31253/96, § 33, ECHR 2001 ‑ XI (extracts); and Markovic and Others v. Italy [GC], no. 1398/03, § 92, ECHR 2006 ‑ XIV). The Court has stated that judicial independence is a prerequisite to the rule of law (see Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, § 239, 1 December 2020). The Committee of Ministers has also taken the view that judicial independence constitutes a fundamental aspect of the rule of law (see point 4 of the Appendix to Recommendation CM/Rec (2010)12 of the Council of Europe’s Committee of Ministers to member States on judges: independence, efficiency and responsibilities; see paragraph 124 above). 299. The Court reiterates that, in order for national legislation excluding access to a court to have any effect under Article 6 § 1 in a particular case, it should be compatible with the rule of law. This concept, which is not only expressly mentioned in the Preamble but is also inherent in all the Articles of the Convention, requires, inter alia, that any interference must in principle be based on an instrument of general application (see, Baka, cited above, § 117). Section 6 of the 2017 Amending Act cannot be regarded as such an instrument since it was directed at a specific group of fifteen clearly identifiable persons – judicial members of the NCJ elected under the previous regulation, including the applicant – and its primary purpose was to remove them from their seats on that body. It was a one-off statutory amendment that terminated ex lege the constitutionally prescribed tenure of the NCJ’s judicial members. The Court has already held that laws which are directed against specific persons are contrary to the rule of law (ibid., § 117; and see, mutatis mutandis, Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, § 269, 22 December 2020). 300. The Court considers that its examination of the second condition of the Eskelinen test must take due account of the fact that the present case is closely related to judicial independence, since the dispute at issue concerns a judicial member of the NCJ, which is the constitutional body with responsibility for safeguarding the independence of courts and judges. The Court is mindful of the fact that, in the Constitutional Court’s view, the NCJ is not a body of judicial self-governance (see paragraph 40 above). Be that as it may, its very raison d’être and its task of safeguarding judicial independence require that the NCJ enjoy autonomy vis-à-vis the political branches of State power. The Court accepts the view of the third-party interveners that the removal, or threat of removal, of a judicial member of the Council during his or her term of office has the potential to affect the personal independence of that member in the exercise of his or her NCJ duties (see paragraph 208 above). By extension, the Council’s mission to safeguard judicial independence may also be adversely affected, and this would raise a number of rule-of-law issues, including those pertaining to the safeguarding of rights enshrined in and protected by the Convention. 301. In this context, the Court will have regard to the following considerations. First, all Contracting Parties to the Convention have explicit, formal guarantees of judicial independence in their laws, whether of constitutional or of statutory rank. Second, judicial independence is a condition sine qua non for the right to a fair hearing under Article 6 of the Convention. Third, judicial independence is operationalised in the persons who are vested with judicial power. 302. In this regard the Court has on many occasions emphasised the special role in society of the judiciary which, as the guarantor of justice, a fundamental value in a State governed by the rule of law, must enjoy public confidence if judges are to be successful in carrying out their duties (see, among other authorities, Baka, § 164; and Guðmundur Andri Ástráðsson, § 234, both cited above). This consideration, set out in particular in cases concerning the right of judges to freedom of expression (see, as a recent example, Guz v. Poland, no. 965/12, § 86, 15 October 2020), has been found to be equally relevant in relation to the adoption of measures affecting the right to liberty of members of the judiciary (see Alparslan Altan v. Turkey, no. 12778/17, § 102, 16 April 2019, and Baş v. Turkey, no. 66448/17, § 144, 3 March 2020) and also to the right of access to a court for judges in matters concerning their status or career (see Bilgen, § 58, and Gumenyuk and Others, § 52, both cited above). Given the prominent place that the judiciary occupies among State organs in a democratic society and the importance attached to the separation of powers and to the necessity of safeguarding the independence of the judiciary (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 196, 6 November 2018, with further references), the Court must be particularly attentive to the protection of members of the judiciary against measures that can threaten their judicial independence and autonomy (see Bilgen, cited above, § 58). The Court reiterates that judges can uphold the rule of law and give effect to the Convention only if domestic law does not deprive them of the guarantees required under the Convention with respect to matters directly touching upon their individual independence and impartiality (see paragraph 264 above). 303. Given the role played by judicial councils, the same considerations should apply as regards the tenure of judges, such as the applicant in the present case, who are elected to serve on them because of their status and in view of the need to safeguard judicial independence, which is a prerequisite to the rule of law. In this connection the Court considers that judicial independence should be understood in an inclusive manner and apply not only to a judge in his or her adjudicating role, but also to other official functions that a judge may be called upon to perform that are closely connected with the judicial system (see point 17 of the Opinion of the CCJE Bureau of 12 October 2017 and points 37-38 of the Opinion no. 24 (2021) of the CCJE of 5 November 2021 cited respectively in paragraphs 137 and 139 above). 304. As regards the regulation of the NCJ under domestic law, the Court notes that this body is constitutionally mandated to safeguard the independence of the courts and judges (Article 186 § 1 of the Constitution). In the Court’s view, the effective exercise of this essential role is only possible when the council is sufficiently independent from the executive and legislative powers. 305. The requirement to ensure the independence of judicial councils is confirmed in recommendations of the Committee of Ministers as well as by other organs of the Council of Europe (see Committee of Ministers Recommendation (2010)12; the Venice Commission report on the Independence of the Judicial System Part I: the Independence of Judges and the Rule of Law Checklist; and Opinion no. 10(2007) of the CCJE; see respectively paragraphs 124, 129, 131 and 135 above). Under the relevant Council of Europe standards, a judicial council’s autonomy in matters concerning judicial appointments must be protected from encroachment by the legislative and executive powers and its independence must be guaranteed. Furthermore, it is recommended that no less than half of the members of judicial councils should be judges chosen by their peers (see paragraphs 124-125, 132, 135 ‑ 136 and 139 above). 306. One of the key manifestations of the NCJ’s role of safeguarding judicial independence is its exclusive competence to propose candidates for appointment at every level of the judiciary and to every type of court. To make it perfectly clear, this covers both initial appointments to judicial office as well as every promotion to a higher level of the judiciary. Formally, the President of the Republic appoints judges, but he may only do so on the basis of proposals submitted by the NCJ (Article 179 of the Constitution). 307. While there exists a widespread practice, endorsed by the Council of Europe, to put in place a judicial council as a body responsible for selection of judges, the Convention does not contain any explicit requirement to this effect. In the Court’s view, whatever system is chosen by member States, they must abide by their obligation to secure judicial independence. Consequently, where a judicial council is established, the Court considers that the State’s authorities should be under an obligation to ensure its independence from the executive and legislative powers in order to, inter alia, safeguard the integrity of the judicial appointment process. The CJEU underlined the importance of this obligation in respect of the NCJ (see §§ 138 and 142-144 of the judgment of 19 November 2019 in A.K. and Others, C ‑ 585/18, C-624/18 and C-625/18; and §§ 125-131 of the judgment of 2 March 2021, A.B. and Others, C-824/18; see respectively paragraphs 152 and 156 above), a conclusion fully endorsed by the Supreme Court and Supreme Administrative Court in their subsequent judgments relating to the NCJ (discussed further in paragraphs 316 and 319 ‑ 321). The Court observes that States are free to adopt such a model as a means of ensuring judicial independence. What they cannot do is instrumentalise it so as to undermine that independence. 308. The Court has held that “independence” refers to the necessary personal and institutional independence that is required for impartial decision-making, and it is thus a prerequisite for impartiality. It characterises both (i) a state of mind, which denotes a judge’s imperviousness to external pressure as a matter of moral integrity, and (ii) a set of institutional and operational arrangements – involving both a procedure by which judges can be appointed in a manner that ensures their independence and selection criteria based on merit – which must provide safeguards against undue influence and/or unfettered discretion of the other State powers, both at the initial stage of the appointment of a judge and during the exercise of his or her duties (see Guðmundur Andri Ástráðsson, cited above, § 234). The Court has also discerned a common thread running through the institutional requirements of Article 6 § 1, in that they are guided by the aim of upholding the fundamental principles of the rule of law and the separation of powers (ibid., § 233). 309. In this connection, the Court notes that there exists a clear link between the integrity of the judicial appointment process and the requirement of judicial independence in Article 6 § 1 (see Thiam v. France, no. 80018/12, §§ 81-82, 18 October 2018). The Venice Commission has noted that “it is generally assumed that the main purpose of the very existence of a Supreme Council of the Judiciary is the protection of the independence of judges by insulating them from undue pressures from other powers of the State in matters such as the selection and appointment of judges and the exercise of disciplinary functions.” [20] 310. Having regard to the above, the Court will now examine the fundamental change in the manner of electing the NCJ’s judicial members introduced by the 2017 Amending Act, namely that they were to be elected by the Sejm instead of by the assemblies of judges. 311. To begin with, the Court notes that the rule that the NCJ’s judicial members were to be elected by judges was introduced in the first Act on the NCJ of 20 December 1989. It was retained in the 2001 Act on the NCJ and also in the 2011 Act on the NCJ until the entry into force of the 2017 Amending Act. The same mechanism was in place on the date of entry into force of the Constitution of 1997. The Constitution laid down for the first time the constitutional rules concerning the composition of the NCJ, specifying the term of office of its members and the manner of their appointment or election. 312. In its judgment of 18 July 2007 (no. K 25/07), the Constitutional Court found that the rules concerning the election of judges to the NCJ were of particular constitutional significance, since their status determined de facto the independence of that body (see paragraph 84 above). In the same judgment, the Constitutional Court held that Article 187 § 1 (2) of the Constitution expressly provided that judicial members of the NCJ were to be elected by judges (see paragraph 84 above). This finding of the Constitutional Court was an important element of its reasoning on the issues submitted to it for examination. The Court therefore notes that, in accordance with the Constitutional Court’s judgment of 18 July 2007, under the Constitution the independence of the Council is protected by the rule that the majority of its members are judges who are elected by other judges. This arrangement is intended to ensure that the Council can effectively exercise its constitutional role as the guardian of judicial independence. 313. It was only in the judgment of 20 June 2017 (no. K 5/17) that the then composition of the Constitutional Court contested this rule and stated its disagreement with the position adopted in the earlier judgment of 18 July 2007 (no. K 25/07). In the judgment of 20 June 2017 (no. K 5/17), the Constitutional Court held that the Constitution did not determine who could elect judges to the NCJ and that, accordingly, this matter was delegated to statutory regulation. The Constitutional Court stated that Article 187 § 1 (3) of the Constitution indicated that deputies and senators were elected to the NCJ by the Sejm and the Senate respectively, whereas there were no constitutional rules as to who elected judicial members of the Council (see paragraph 43 above). 314. In its judgment of 25 March 2019 (no. K 12/18) the Constitutional Court confirmed the constitutionality of the provision of the 2017 Amending Act granting the Sejm the competence to elect judicial members of the NCJ (see paragraph 62 above). The Court notes that this judgment essentially relied on the reasons of the Constitutional Court’s judgment of 20 June 2017 (no. K 5/17). It also observes that Judge J.Pi., who participated in the five ‑ judge bench of the Constitutional Court which gave the judgment of 25 March 2019 (no. K 12/18), was elected to that court following the death of Judge L.M., one of the judges elected in December 2015 to a seat that had been already filled. 315. Without engaging in an interpretation of the Polish Constitution, the Court reiterates the doubts it has already expressed regarding the validity and legitimacy of the Constitutional Court’s judgment of 20 June 2017 relating to the composition of the bench in that case (see paragraph 277 above). Secondly, it considers that the departure, in that judgment, from the earlier position of the Constitutional Court in its judgment of 18 July 2007, namely that judicial members of the NCJ were to be elected by judges, was not accompanied by any cogent explanation. Rather, the reasons given were, in effect, limited to the “disagreement” of that particular bench with the previous case-law of the Constitutional Court and, therefore, such reasons should be regarded as insufficient (see, in the same vein, Reczkowicz v. Poland, no. 43447/19, § 238, 22 July 2021). The Court is also of the view that the Constitutional Court’s findings in the judgment of 20 June 2017 did not give consideration to the constitutional mandate of the NCJ to safeguard judicial independence. 316. In this regard, the Court further refers to the findings made in the Supreme Court’s judgment of 5 December 2019 (no. III PO 7/18) on the same point. The Supreme Court observed that in the absence of any constitutional amendment, the Constitutional Court, in its judgment of 20 June 2017, had not so much changed its position as regards the election of judges to the NCJ as created a divergence in its case-law on a systemic issue of fundamental importance for the right to a fair hearing (see paragraph 102 above). It went on to note that since its creation in 1989 the judicial members of the NCJ had been elected by the relevant assemblies of judges and that this mechanism was in force at the time of the adoption of the Constitution in 1997. As noted by the Supreme Court, the drafters of the Constitution had confirmed their intention of entrusting the election of judicial members of the NCJ to the judicial community (see paragraph 105 above). The Supreme Court emphasised that in the absence of any constitutional amendment regarding the principles of electing judicial members of the Council, a statute could not introduce a procedure for election of those members by Parliament (see paragraph 105 above). 317. The Court further refers to the findings made in the resolution of the joined chambers of the Supreme Court of 23 January 2020. As regards the change of manner of electing judicial members of the NCJ, the Supreme Court found that the legislature could not create a power for itself – not provided for in the Constitution – to elect members of the Council from among judges, since the scope of its power to appoint members of the Council, i.e. four deputies of the Sejm and two members of the Senate, was defined in Article 187 § 1 (3) of the Constitution (see paragraph 112 above). The Supreme Court added that the Constitution did not provide for a presumption of competence in favour of Parliament. 318. The Court will now examine the consequences of the 2017 Amending Act for the independence of the new NCJ, in particular regarding the early termination of office of the previous members of the NCJ and the change in method of election of the judicial members. It notes that the CJEU in its preliminary ruling of 19 November 2019 in the case of A.K. and Others (C ‑ 585/18, C-624/18 and C-625/18) referred to a series of factors relevant to ascertaining whether the new NCJ offered sufficient guarantees of independence from the legislative and executive powers (see §§ 142-144 of the preliminary ruling; paragraph 152 above). The first factor was that the new NCJ was constituted as a result of the premature termination of the terms of office of former members. The second factor was the transfer of competence to elect judicial members of the NCJ from assemblies of judges to the Sejm. The third factor was the irregularity of the appointment of certain members of the new NCJ and the fourth was the manner in which that body exercised its constitutional responsibility. 319. In its judgment of 5 December 2019 (no. III PO 7/18), the Supreme Court, having assessed the above-mentioned factors, concluded that the new NCJ did not provide sufficient guarantees of independence from the legislative and executive powers in the judicial appointment procedure (see paragraph 107 above). It found, inter alia, that as a result of the 2017 Amending Act the legislative and the executive had gained an almost monopolistic position in determining the NCJ’s composition in that they ultimately appointed twenty-three out of twenty-five members of the Council (see paragraph 105 above). In the Supreme Court’s view, this situation had resulted in the distortion of the separation of powers. 320. In its leading resolution of three joined chambers of 23 January 2020, the Supreme Court fully endorsed the view that the new NCJ was not an independent body, but a body subordinated to the political authorities. It found, inter alia, that judges elected to the NCJ by the Sejm had no legitimacy as representatives of the judicial community and that this fact significantly weakened the role of the NCJ as the guardian of judicial independence (see paragraph 112 above). 321. Furthermore, in its judgment of 6 May 2021 (no. II GOK 2/18), the Supreme Administrative Court, having regard to the CJEU’s preliminary rulings of 19 November 2019 and 2 March 2021 (see paragraphs 150-152 and 155-156 above) came to the same conclusion as to the lack of independence of the NCJ (see paragraph 118 above). It held that the rules and procedure for determining the personal composition of the NCJ were motivated by an intention to subject it to a form of supervision by the executive, hence by the parliamentary majority. It further noted that the composition of the NCJ as determined by the 2017 Amending Act nullified the possibility of its effectively discharging its function of safeguarding judicial independence (see paragraph 119 above). 322. Having regard to the two rulings of the Supreme Court and the judgment of the Supreme Administrative Court mentioned above, the Court finds that the fundamental change in the manner of electing the NCJ’s judicial members, considered jointly with the early termination of the terms of office of the previous judicial members (analysed in paragraphs 266-286 above), meant that its independence is no longer guaranteed (see, in the same vein, Reczkowicz, cited above, §§ 265 and 269; see also, for an analogous finding, the CJEU’s judgment of 15 July 2021 in Commission v. Poland (Disciplinary regime for judges), see paragraphs 160-161 above). As noted by the Constitutional Court in its judgment of 18 July 2007 (no. K 25/07), the NCJ’s independence was determined precisely by the rule that its judicial members were elected by judges for a constitutionally prescribed term of office. 323. The Court considers it appropriate at this juncture to address the general issue of judicial reform. It wishes to make it clear that the Convention does not prevent States from taking legitimate and necessary decisions to reform the judiciary (see Gumenyuk and Others, cited above, § 43) and agrees with the view expressed, inter alios, by the UN Special Rapporteur on the Independence of Judges and Lawyers that the power of a government to undertake reforms of the judiciary cannot be called into question. However, any reform of the judicial system should not result in undermining the independence of the judiciary and its governing bodies. The CJEU adopted a similar position in its preliminary ruling of 20 April 2021 in the case of Repubblika v. Il-Prim Ministru (C ‑ 896/19) with regard to member States of the EU. It held at §§ 63-65 of its ruling that EU law precludes the adoption of national laws relating to the organisation of justice which would constitute a reduction in the protection of the value of the rule of law, in particular the guarantees of judicial independence (see paragraph 159 above). 324. The Court considers it appropriate to emphasise in this regard the importance of the principles of subsidiarity and shared responsibility. It reiterates its fundamentally subsidiary role in the supervisory mechanism established by the Convention, whereby the Contracting Parties have the primary responsibility of securing the rights and freedoms defined in the Convention and the Protocols thereto (see, for instance, Garib v. the Netherlands [GC], no. 43494/09, § 137, 6 November 2017; and Guðmundur Andri Ástráðsson, cited above, § 250). Protocol No. 15 to the Convention has recently inserted the principle of subsidiarity into the Preamble to the Convention. The Court further notes that the principle of subsidiarity imposes a shared responsibility between the States Parties and the Court, and that national authorities and courts must interpret and apply domestic law in a manner that gives full effect to the Convention (see, in particular, the references to the Izmir and Brighton Conferences and Declarations in Burmych and Others v. Ukraine (striking out) [GC], nos. 46852/13 et al., §§ 120-22, 12 October 2017). In this connection, the Court would emphasise that the Convention system cannot function properly without independent judges. The Contracting Parties’ task of ensuring judicial independence is thus of crucial importance. 325. Having regard to all the foregoing considerations, the Court concludes that the second condition of the Eskelinen test, namely that the applicant’s exclusion from access to a court be justified on objective grounds in the State’s interest, has not been met. 326. The applicant’s position as an elected judicial member of the NCJ, the body with constitutional responsibility for safeguarding judicial independence, was prematurely terminated by operation of the law in the absence of any judicial oversight of the legality of this measure. The exclusion of the applicant from a fundamental safeguard for the protection of an arguable civil right closely connected with the protection of judicial independence cannot be regarded as being in the interest of a State governed by the rule of law. 327. Members of the judiciary should enjoy – as do other citizens – protection from arbitrariness on the part of the legislative and executive powers, and only oversight by an independent judicial body of the legality of a measure such as removal from office is able to render such protection effective (see, mutatis mutandis, Kövesi, § 124, and Bilgen, § 79, both cited above). Conclusion as to the applicability of Article 6 § 1 328. Having regard to the foregoing, the Court finds that Article 6 § 1 under its civil head is applicable, since the second condition of the Eskelinen test has not been met. 329. It follows that the Government’s objection to the applicability of Article 6 § 1 of the Convention must be dismissed. Objection based on the lack of significant disadvantage (a) The Government’s submissions 330. The Government further submitted that the application was inadmissible on account of the lack of a significant disadvantage within the meaning of Article 35 § 3 (b) of the Convention. In their view, the applicant did not suffer any disadvantage of a pecuniary or non-pecuniary nature in connection with the termination of his term of office as a member of the NCJ. In support of this contention, they referred to their earlier arguments on the applicability of Article 6 § 1. (b) The applicant’s submissions 331. The applicant argued that his case could not be rejected under Article 35 § 3 (b) as he had suffered a significant disadvantage in the form of non-pecuniary damage related to the distress caused by the violation of his Convention rights. Furthermore, respect for human rights as defined in the Convention required the examination of his case on the merits since it pertained to the relationship between the principles of the separation of powers and the effective protection of human rights. Lastly, his case had not been duly examined by a domestic court. In fact, he had been deprived of the possibility of challenging the premature termination of his term of office before a court. (c) The Court’s assessment 332. The Court considers that the objection based on Article 35 § 3 (b) cannot be accepted. The present application is now before the Court’s Grand Chamber because it was indeed considered to raise serious questions affecting the interpretation of the Convention or the Protocols thereto and was therefore relinquished by the Chamber under Article 30 of the Convention. The Court is thus of the view that the conditions set forth in Article 35 § 3 (b) are not met, since respect for human rights, as defined in the Convention and the Protocols thereto, requires an examination of the application on the merits (see Vavřička and Others v. the Czech Republic, 8 April 2021, no. 47621/13, § 163). 333. The Government’s objection under Article 35 § 3 (b) of the Convention must accordingly be dismissed. Overall conclusion on admissibility 334. The Court further notes that this complaint is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe applicant’s submissions The applicant’s submissions The applicant’s submissions 335. As regards the assessment of a legitimate aim for the limitation of the right of access to a court, the applicant submitted that account had to be taken of the detrimental impact of weakening the guarantees of the independence of the judiciary on the protection of individual rights and freedoms. It was imperative for there to be procedural safeguards in order to ensure that the autonomy of judges was not jeopardised by undue external or internal influences. 336. The NCJ’s importance in the mechanism of checks and balances and its role in safeguarding judicial independence were of paramount importance for respecting the rule of law. The applicant argued that any limitation on the right of access to a court in the case of removal of the NCJ’s judicial members had to pursue a genuine legitimate aim, but that such an aim had been absent in the present case. The Government’s submissions 337. The Government maintained that there had been no violation of Article 6 § 1 of the Convention. They reiterated their arguments as to the inapplicability of this provision to the present case. Submissions of third-party interveners 338. The submissions of the third-party interveners on the merits of the case have already been summarised above (see paragraphs 205-256 above). The Court’s assessment (a) Preliminary considerations 339. At the outset, the Court reiterates that the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention (see, among many other authorities, Amuur v. France, 25 June 1996, § 50, Reports of Judgments and Decisions 1996 ‑ III; Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999 ‑ II; and Baka, cited above, § 117). The right to a fair hearing under Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which, in its relevant part, declares the rule of law to be part of the common heritage of the Contracting States (see Guðmundur Andri Ástráðsson, cited above, § 237). Arbitrariness entails a negation of the rule of law (see Al-Dulimi and Montana Management Inc., cited above, § 145) and could not be tolerated in respect of procedural rights any more than in respect of substantive rights (see Muhammad and Muhammad v. Romania [GC], no. 80982/12, § 118, 15 October 2020). In that sense, the Convention is essentially a rule of law instrument. 340. All Contracting Parties should abide by the rule of law standards and respect their obligations under international law, including those voluntarily undertaken when they ratified the Convention. The principle that States must abide by their international obligations has long been entrenched in international law; in particular, “a State cannot adduce as against another State its own Constitution with a view to evading obligations incumbent upon it under international law or treaties in force” (see the Advisory Opinion of the Permanent Court of International Justice on Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, at paragraph 121 above). The Court observes that, under the Vienna Convention on the Law of Treaties, a State cannot invoke its domestic law, including the constitution, as justification for its failure to respect its international law commitments (see Article 27 of the Vienna Convention, at paragraph 120 above). 341. The Court notes that the present case involves a number of domestic constitutional issues. Being mindful of its subsidiary role, it does not engage in matters of constitutional interpretation and limits its task to the interpretation and application of the Convention as provided for in Article 32 of the Convention, in the light of the rule of law as the principle underlying the Convention and all its provisions. (b) General principles 342. The right of access to a court was established as an aspect of the right to a fair hearing guaranteed by Article 6 § 1 of the Convention in Golder v. the United Kingdom (cited above, §§ 28-36). In that case, the Court found the right of access to a court to be an inherent aspect of the safeguards enshrined in Article 6, referring to the principles of the rule of law and the avoidance of the arbitrary exercise of power which underlay much of the Convention. Thus, Article 6 § 1 secures to everyone the right to have a claim relating to his civil rights and obligations brought before a court (see Zubac v. Croatia [GC], no. 40160/12, § 76, 5 April 2018, with further references). 343. In respect of matters that fall within the ambit of the Convention, the Court’s case-law has tended to show that where there is no access to an independent and impartial court, the question of compliance with the rule of law will always arise (see Golder, cited above, § 34). However, the Court has itself acknowledged that the right of access to the courts is not absolute and may be subject to limitations that do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Baka, § 120, and Zubac, § 78, both cited above). (c) Application of the general principles to the present case 344. The Court recalls that it has left open the question whether the first condition of the Eskelinen test has been fulfilled, taking account of the opposing views of the parties on that issue and since, in any event, it has concluded that the second condition has not been met (see paragraph 294 above). However, the Court reiterates that the Government have consistently argued that for the purposes of Article 6 of the Convention the applicant’s access to a court was excluded at all times under national law, both before his term of office as a judicial member of the NCJ was terminated by the 2017 Amending Act, as well as after that occurred (see paragraph 180 above). Therefore, the Court is now called upon to assess whether the applicant’s lack of access to the domestic courts, to have examined the genuine and serious dispute over his arguable right to serve a full term of four years as a judicial member of the NCJ (see paragraph 286 above), was justified in conformity with the general principles in the Court’s case-law (see paragraph 343 above). 345. Referring to its analysis with regard to the issue of the applicability of Article 6 § 1, in particular the importance of the NCJ’s mandate to safeguard judicial independence and the link between the integrity of the judicial appointment process and the requirement of judicial independence (see paragraphs 300-303 above), the Court considers that similar procedural safeguards to those that should be available in cases of dismissal or removal of judges should likewise be available where, as in the present case, a judicial member of the NCJ has been removed from his position. 346. The Court further emphasises the need to protect a judicial council’s autonomy, notably in matters concerning judicial appointments, from encroachment by the legislative and executive powers, and its role as a bulwark against political influence over the judiciary. In assessing any justification for excluding access to a court with regard to membership of judicial governance bodies, the Court considers it necessary to take into account the strong public interest in upholding the independence of the judiciary and the rule of law. It also has regard to the overall context of the various reforms undertaken by the Polish Government – of which the present case reflects one problematic aspect – which have resulted in the weakening of judicial independence and adherence to rule-of-law standards. 347. In the instant case the Government have not provided any reasons justifying the absence of judicial review, but have simply reiterated their arguments as to the inapplicability of Article 6 to the case. 348. The Court notes that the whole sequence of events in Poland (see paragraphs 14-28 above) vividly demonstrates that successive judicial reforms were aimed at weakening judicial independence, starting with the grave irregularities in the election of judges of the Constitutional Court in December 2015, then, in particular, remodelling the NCJ and setting up new chambers in the Supreme Court, while extending the Minister of Justice’s control over the courts and increasing his role in matters of judicial discipline. At this juncture, the Court finds it important to refer to its judgments related to the reorganisation of the Polish judicial system (see, Xero Flor w Polsce sp. z o.o.; Broda and Bojara; and Reczkowicz; all cited above), as well as the cases decided by the CJEU (see paragraphs 150-156 and 160-161 above) and the respective rulings of the Supreme Court and Supreme Administrative Court (see paragraphs 100-108 and 109-119). As a result of the successive reforms, the judiciary – an autonomous branch of State power – has been exposed to interference by the executive and legislative powers and thus substantially weakened. The applicant’s case is one exemplification of this general trend. 349. Having regard to the foregoing, the Court finds that on account of the lack of judicial review in this case the respondent State impaired the very essence of the applicant’s right of access to a court (see Baka, cited above, § 121). 350. Accordingly, the Court finds that there has been a violation of the applicant’s right of access to a court, as guaranteed by Article 6 § 1 of the Convention. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 351. The applicant complained under Article 13 of the Convention that he had been deprived of an effective domestic remedy in relation to the premature termination of his term of office as judicial member of the NCJ. Article 13 reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 352. The Court notes that the complaint under Article 13 is essentially the same as that under Article 6 § 1. It reiterates that the role of Article 6 in relation to Article 13 is that of a lex specialis, the requirements of Article 13 being absorbed by the more stringent requirements of Article 6 (see, for example, Kudła v. Poland [GC], no. 30210/96, § 146, ECHR 2000 ‑ XI, and Baka, cited above, § 181). 353. Consequently, the Court finds that it is not necessary to examine separately the admissibility and merits of the complaint under Article 13 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 354. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 355. The applicant claimed 50,000 euros (EUR) in respect of non ‑ pecuniary damage for suffering and distress caused by the violation of his rights under Article 6 § 1 and Article 13 of the Convention, referring to the early termination of his office and the lack of any possibility of having that measure judicially reviewed. He emphasised that his election to the NCJ had served the purpose of the proper operation of the NCJ and constituted the fulfilment of his oath as a judge. The applicant regarded the early termination of his term of office as a form of political repression and as preventing him from fulfilling his obligations related to the protection of judicial independence arising from his seat on the NCJ. The interference with his rights had been an instrument to achieve the political goals of the current majority in Parliament. 356. The Government considered that the applicant’s claim was unfounded and invited the Court to reject it. Should the Court establish otherwise, the Government observed that the applicant had not substantiated his claim by providing any proof of having suffered distress, emotional harm, hardship or loss of quality of life. Were the Court to find a violation of the Convention in the case, the Government submitted that the finding of a violation should be regarded as constituting sufficient just satisfaction. Alternatively, they invited the Court to assess the issue of just satisfaction on the basis of its practice in similar cases and national economic circumstances. 357. Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate (see O’Keeffe v. Ireland [GC], no. 35810/09, § 199, ECHR 2014). 358. The Court considers that in the particular circumstances of the present case the finding of a violation can be regarded in itself as sufficient just satisfaction for any non-pecuniary damage sustained by the applicant, and thus rejects his claim under this head. Costs and expenses 359. While the case was still pending before the Chamber, the applicant sought EUR 24,029.23, inclusive of VAT, for the costs of his legal representation before the Court. 360. Following the relinquishment of jurisdiction, the applicant additionally claimed EUR 18,450, inclusive of VAT, in costs and expenses regarding his legal representation before the Grand Chamber which were due to be paid after the proceedings before the Court had been finally concluded. The total sum claimed amounted to EUR 42,479.23, inclusive of VAT. In support of his claim, the applicant submitted (1) the legal services agreement between him and the Pietrzak Sidor and Partners Law Firm of 31 July 2018 together with a relevant invoice; (2) the annex to the legal services agreement of 21 January 2020 with a pro-forma invoice for the sum of EUR 24,029.23 gross; and (3) the annex to the above-mentioned agreement of 16 March 2021 with a pro-forma invoice for the sum of EUR 18,450 gross. The legal services agreement concerned the preparation and lodging of the applicant’s application and his representation before the Court. It specified that the applicant was due to pay the law firm all necessary costs and expenses relating to his representation. 361. The applicant further requested the reimbursement of the expenses relating to the attendance of his lawyers at the hearing before the Grand Chamber. The applicant and his lawyers intended to take part in the hearing scheduled for 19 May 2021 and to this effect incurred expenses for their plane tickets in the amount of EUR 895.80 and certain additional expenses for car rental and accommodation, for which he submitted supporting documents. Following the President’s decision to hold the hearing by videoconference, the applicant managed to cancel the reservations for car rental and accommodation and, accordingly, withdrew his claim in this part. However, he was unable to cancel the reservation of the plane tickets purchased at a non-refundable tariff and thus maintained his claim in this part. In addition, the applicant claimed EUR 938.04 for costs of IT support and rental of IT equipment required for the hearing by videoconference, and submitted supporting documents to this effect. The total amount claimed under the head of costs and expenses was EUR 44,313.07. 362. As regards the claim for costs and expenses incurred in the Chamber proceedings, the Government considered it unfounded and invited the Court to reject it. They did not comment on the applicant’s claim for costs and expenses in the Grand Chamber proceedings. 363. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In accordance with Rule 60 § 2 of the Rules of Court, itemised particulars of all claims must be submitted, failing which the Court may reject the claim in whole or in part (see Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13, § 189, 17 May 2016). 364. The Court finds that the total amount of legal costs requested in connection with the proceedings before the Court appears excessive. In the light of the above considerations, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant EUR 30,000 covering costs and expenses for the proceedings before it. Default interest 365. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 6 § 1 of the Convention, finding that the lack of judicial review in the case had impaired the applicant’s right of access to a court. The Court emphasised, in particular, that it was fully aware of the context of the case – the weakening of judicial independence and adherence to rule-of-law standards brought about by Government reforms. In particular, successive judicial reforms had been aimed at weakening judicial independence, starting with the grave irregularities in the election of judges of the Constitutional Court in December 2015, then, in particular, the remodelling of the NCJ and the setting up of new chambers of the Supreme Court, while extending the Minister of Justice’s control over the courts and increasing his role in matters of judicial discipline. The Court also referred to its judgments related to the reorganisation of the Polish judicial system, as well as the cases decided by the Court of Justice of the European Union and the relevant rulings of the Supreme Court and Supreme Administrative Court of Poland. It held that as a result of these successive reforms, the judiciary had been exposed to interference by the executive and legislature and its independence had been substantially weakened. The applicant’s case was one example of this general trend. |
926 | Objective guarantees as to the career of judges | II. RELEVANT DOMESTIC LAW AND PRACTICE 13. Under section 9 of the Parliament Act ( valtiopäiväjärjestys, riksdagsordning 278/1983 ), which was in force in 1997, only certain military positions and certain high positions in the judiciary, as well as the duties of officials supervising the lawfulness of government activities, were incompatible with the duties of a member of parliament, but there were no such restrictions as regards membership of a court of appeal. That provision read as follows: “The Chancellor of Justice, the Assistant Chancellor of Justice, a Justice of the Supreme Court or of the Supreme Administrative Court, the Parliamentary Ombudsman and the Assistant Parliamentary Ombudsman may not hold the office of a representative. If a representative is appointed to one of the aforesaid offices or elected Parliamentary Ombudsman or Assistant Parliamentary Ombudsman, his parliamentary mandate shall expire.” This provision corresponds to the existing section 27 of the Constitution ( perustuslaki, grundlagen 731/1999 ). 14. According to section 23 of the State Civil Servants Act ( valtion virkamieslaki, statstjänstemannalagen 750/1994 ), a public official must be absent from office for the period of time he or she performs the duties of a member of parliament. 15. Under section 29 (1) (504/1984) of the Act on Court Proceedings in Cases concerning Rental Matters ( laki oikeudenkäynnistä huoneenvuokra-asioissa, lag om rättegång i hyresmål 650/1973 ), as in force at the relevant time, the court of appeal was required to consider appeals concerning rent contracts as a bench of three judges and two expert members, one of whom represented the views of landlords and the other the views of tenants. The expert members of the court of appeal were appointed by the President of the Republic for a period of four years. Members must be between 25 and 70 years old, and have full legal capacity ( section 29 (2) ). Expert members were required to take an oath ( section 31). 16. The Act on Court Proceedings in Cases concerning Rental Matters was repealed by Act no. 597/2002, which came into force on 1 January 2003. Expert members no longer take part in the proceedings before the district courts or courts of appeal. Instead, the Code of Judicial Procedure ( oikeudenkäymiskaari, rättegångsbalken ) applies to the proceedings. 17. The provisions concerning the disqualification of judges are contained in Chapter 13, section 1, of the Code of Judicial Procedure. At the relevant time the said provision was worded as follows: “If the plaintiff or the defendant wishes to challenge a judge, he shall do so in a proper manner, and that judge shall decide whether or not to stand down. The following shall be the legal grounds for disqualification: where the judge is related by blood or marriage to one of the parties to a degree which would constitute a bar to marriage under Chapter 2 of the (1734) Marriage Code, including cousinship by blood although not by marriage; where the judge is the opposing party or a publicly known “enemy” of a party; where the judge or a listed relative has an interest in the case, where they stand to obtain particular benefit or suffer particular loss in it; where the judge has served as a judge in the case in another court; where the judge has served as an advocate or witness in the case; where the judge has previously, on the orders of a court, decided a part of the case; or where the judge has a similar case pending before another court. If the judge knows that such grounds exist in his regard, even though the parties are not aware of the same, the judge shall stand down of his own accord.” 18. The provisions of Chapter 13 of the Code of Judicial Procedure concerning the impartiality of judges were amended by an Act (441/2001) which came into force on 1 September 2001. The government bill ( HE 78/2000 ) contains an extensive account of the existing legislative provisions, the case - law of the European Court of Human Rights and precedents of the Supreme Court concerning the disqualification of judges. The amendment has not changed the Government's assessment of the present case. 19. The Act on Commercial Leases ( laki liikehuoneiston vuokrauksesta, lag om hyra av affärslokal 482 /1995 ) was presented as a government bill on 21 November 1994. It was adopted on 17 February 1995 and came into force on 1 May 1995. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 20. The applicant company complained about a lack of independence and impartiality as one of the expert members sitting on the Court of Appeal when it was determining its case was also a member of the Finnish parliament. The applicant company relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal...” A. The parties'submissions 1. The applicant company 21. The applicant company submitted that while M.P. was a fully qualified member of the Court of Appeal, he was also a member of parliament. According to the theory of the separation of powers, a member of parliament should not act as a judge in an individual case since judicial and legislative powers should not be exercised by one and the same person. Thus a court of appeal in which a judge was a member of parliament could not be considered to be independent of the legislature. The applicant company argued that inclusion of members of parliament in the composition of judicial bodies disclosed serious structural problems. 22. The applicant company also pointed out that M.P. was a social democrat, as were the President and Prime Minister at the time. It submitted that social democrats considered their relations with insurance companies to be important and that Finnish judges generally favoured big companies as they wished to obtain arbitration assignments for lucrative fees. 2. The Government 23. The Government submitted that M.P. was one of the two expert members of the Court of Appeal, in a composition where the three other members of the court were professional judges and in the majority. The provisions in Chapter 13 of the Code of Judicial Procedure concerning the impartiality of judges were also applicable to expert members, who had to take an oath. 24. The Government noted, moreover, that the applicant company had not suggested that the parliament would have interfered in M.P.'s exercise of his duties as an expert member of the Court of Appeal. They considered that the position of a member of parliament was a position of trust which did not entail any statutory or other obstacle to prevent him or her from acting as an expert member of a court of appeal in cases concerning rental matters. M.P. had sat as a lay member in rental matters since 1974 and gained extensive expertise. The fact that he was a social democrat was of no relevance to the proceedings. 25. The Government emphasised the fact that the prerequisite for expert members is the same as for judges, that is, the expert member may not have a personal relationship with any party to the proceedings or with the case that would jeopardise his or her impartiality. The applicant company alleged that the group of insurance companies to which its adversary belonged offered funding and inexpensive lease contracts to members of parliament and that M.P. was partial because of this. The Government observed in this respect that, according to the Court's constant case-law, a mere suspicion of partiality did not render M.P. partial. The applicant company had neither shown that M.P. rented an apartment from the opposite party, nor that he received any funding from them. B. The Court's assessment 1. General principles 26. In order to establish whether a tribunal can be considered “independent” for the purposes of Article 6 § 1 of the Convention, regard must be had, inter alia, to the manner of appointment of its members and their terms of office, the existence of safeguards against outside pressures and the question whether it presents an appearance of independence. 27. The “impartiality” requirement has two aspects. Firstly, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect. Under the objective test, it must be determined whether, quite apart from the judges'personal conduct, there are ascertainable facts which may raise doubts as to their impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence that the courts in a democratic society must inspire in the public and above all in the parties to proceedings (see Morris v. the United Kingdom, no. 38784/97, § 58, ECHR 2002-I). 28. The concepts of independence and objective impartiality are closely linked, and the Court will accordingly consider both issues together as they relate to the present case (see Findlay v. the United Kingdom, judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, p. 281, § 73, and Kleyn and Others v. the Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99, § 192, ECHR 2003-VI ). 29. This case also raises issues concerning the role of a member of the legislature in a judicial context. Although the notion of the separation of powers between the political organs of government and the judiciary has assumed growing importance in the Court's case-law (see Stafford v. the United Kingdom [GC], no. 46295/99, § 78, ECHR 2002-IV), neither Article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts regarding the permissible limits of the powers'interaction. The question is always whether, in a given case, the requirements of the Convention are met. As in the other cases examined by the Court, the present case does not, therefore, require the application of any particular doctrine of constitutional law. The Court is faced solely with the question whether, in the circumstances of the case, the Court of Appeal had the requisite “appearance” of independence, or the requisite “objective” impartiality (see McGonnell v. the United Kingdom, no. 28488/95, § 51, ECHR 2000-II, and Kleyn and Others, cited above, § 19 3 ). 30. Lastly, it should be borne in mind that in deciding whether in a given case there is a legitimate reason to fear that these requirements have not been met, the standpoint of a party is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see, mutatis mutandis, Hauschildt v. Denmark, judgment of 24 May 1989, Series A no. 154, p. 21, § 48). 2. Application in the present case 31. The Court notes, first of all, that there is no indication that M.P. was actually, or subjectively, biased against the applicant company when sitting in the Court of Appeal in its case. The only issue is whether due to his position as a member of the legislature his participation cast legitimate doubt on the objective or structural impartiality of the court which decided the applicant company's appeal. 32. There is no objection per se to expert lay members participating in the decision-making in a court. The domestic legislation of the Council of Europe's member States affords many examples of tribunals in which professional judges sit alongside specialists in a particular sphere whose knowledge is desirable and even essential in settling the disputes (see, for example, Ettl and Others v. Austria, judgment of 23 April 1987, Series A no. 117, pp. 18-19, §§ 38-40, and Debled v. Belgium, judgment of 22 September 1994, Series A no. 292-B, p. 43, § 36). The Court observes that M.P. had sat on the Court of Appeal as an expert in rental matters since 1974 and had, in the Government's view, acquired considerable experience, permitting him to make a valuable contribution to the adjudication of these types of cases. The Court notes in that regard that two expert members sit alongside a majority of three judges in the composition of the court of appeal in such cases. 33. While the applicant company pointed to M.P.'s political affiliation, the Court does not find that there is any indication in the present case that M.P.'s membership of a particular political party had any connection or link with any of the parties in the proceedings or the substance of the case before the Court of Appeal ( see, mutatis mutandis, Holm v. Sweden, judgment of 25 November 1993, Series A no. 279-A, pp. 15-16, §§ 32-33). Nor is there any indication that M.P. played any role in respect of the legislation which was in issue in the case. The Act on Commercial Leases had been submitted by the government for adoption by the parliament on 21 November 1994 and it had been adopted on 17 February 1995, before M.P. had been elected for his second term of office on 19 March 1995. Even assuming therefore that participation by a member of parliament in, for example, the adoption of a general legislative measure could cast doubt on later judicial functions, it cannot be asserted in this case that M.P. was involved in any other capacity with the subject matter of the applicant company's case through his position as a member of parliament. 34. Accordingly, the Court concludes that, unlike the situation it examined in Procola v. Luxembourg (judgment of 28 September 1985, Series A no. 326 ) and McGonnell, cited above, M.P. had not exercised any prior legislative, executive or advisory function in respect of the subject matter or legal issues before the Court of Appeal for decision in the applicant company's appeal. The judicial proceedings therefore cannot be regarded as involving “the same case” or “the same decision” in the sense that was found to infringe Article 6 § 1 in the two judgments cited above. The Court is not persuaded that the mere fact that M.P. was a member of the legislature at the time he sat on the applicant company's appeal is sufficient to raise doubts as to the independence and impartiality of the Court of Appeal. While the applicant company relies on the theory of separation of powers, this principle is not decisive in the abstract. 35. In these circumstances, the Court is of the opinion that the applicant company's fear as to lack of independence and impartiality of the Court of Appeal, due to the participation of an expert member who was also a member of parliament, cannot be regarded as being objectively justified. Consequently, there has been no violation of Article 6 § 1 of the Convention. | The Court held that there had been no violation of Article 6 § 1 of the Convention, finding that the applicant’s fear as to a lack of independence and impartiality of the Court of Appeal, due to the participation of an expert member who was also a Member of Parliament, could not be regarded as being objectively justified. The Court noted in particular that there was no indication that the judge who was a Member of the Parliament was actually, or subjectively, biased against the applicant when sitting in the Court of Appeal in his case. Nor was the Court persuaded that the mere fact that he was a member of the legislature at the time when he sat on the applicant’s appeal was sufficient to raise doubts as to the independence and impartiality of the Court of Appeal. While the applicant relied on the theory of separation of powers, the principle was not decisive in the abstract. |
684 | Searches of journalists’ home or workplace, accessing of the phone data and/or seizure of journalistic material | II. RELEVANT DOMESTIC AND EUROPEAN LAW 31. Article 458 of the Belgian Criminal Code provides : “ Medical practitioners, surgeons, health officers, pharmacists, midwives and all other persons who, by reason of their status or profession, are guardians of secrets entrusted to them and who disclose them, except where they are called to give evidence in legal proceedings (or to a parliamentary commission of inquiry) or where the law requires them to do so, shall be liable to imprisonment for between eight days and six months and a fine ranging from one hundred to five hundred francs. ” 32. The relevant provisions of the Code of Criminal Procedure read as follows: Article 87 “The investigating judge may, if required to do so or of his own motion, visit the home of the accused to search papers, effects and, in general, any items that may be deemed useful in establishing the truth. ” Article 88 “Similarly, the investigating judge may visit any other places at which he suspects that the items referred to in the preceding paragraph may have been hidden. ” 33. Article 8 of Regulation EC No. 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by OLAF provides as follows in respect of confidentiality and data protection: “1. Information obtained in the course of external investigations, in whatever form, shall be protected by the relevant provisions. 2. Information forwarded or obtained in the course of internal investigations, in whatever form, shall be subject to professional secrecy and shall enjoy the protection given by the provisions applicable to the institutions of the European Communities. Such information may not be communicated to persons other than those within the institutions of the European Communities or in the Member States whose functions require them to know, nor may it be used for purposes other than to prevent fraud, corruption or any other illegal activity. ... ” 34. Article 16 of the same Regulation provides that it is binding in its entirety and directly applicable in all Member States. 35. Paragraph 4 of Article 280 of the EEC Treaty states as follows; “ The Council, acting in accordance with the procedure referred to in Article 251, after consulting the Court of Auditors, shall adopt the necessary measures in the fields of the protection of and fight against fraud affecting the financial interests of the Community with a view to affording effective and equivalent protection in the Member States. These measures shall not concern the application of national criminal law or the national administration of justice .” THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 36. The applicant alleged that the searches and seizures carried out at his home and place of work had violated his right to freedom of expression as provided under Article 10 of the Convention, the relevant part of which reads as follows: “ 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the prevention of disorder or crime, ... for the protection of the reputation or rights of others, [or] for preventing the disclosure of information received in confidence ... ” A. Admissibility 37. The Court notes that this complaint is not manifestly ill- founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other ground. Accordingly, it must be declared admissible. B. Merits 1. Arguments of the parties ( a) The applicant 38. Firstly, the applicant maintained that the proceedings had not been directed against him in any way. Criminal law must be interpreted strictly and, since it had not been shown that the conditions for application of Article 458 of the Criminal Code had been met, the Government ’ s contention that that Article was applicable in the instant case had to be rejected. Furthermore, professional secrecy as enshrined in Article 8 of Regulation EC No. 1073/1999 did not equate to professional secrecy for the purposes of Article 458 of the Criminal Code, since the latter Article was intended to protect the interests of individuals and concerned personal data which had come to a person’s knowledge in the performance of his or her duties. The professions satisfying the relevant criteria were those which, owing to the nature of their activities, placed those who carried them out in a situation in which they would become aware of hidden aspects of private life ( for example, medical practitioners, ministers of religion, lawyers or notaries). The information allegedly disclosed by the OLAF official, assuming that it was covered by professional secrecy under the Regulation, had in no way concerned personal matters relating to the private life of an individual for the purposes of Article 458 of the Criminal Code. 39. European civil servants were not explicitly covered by Article 458, as was manifestly obvious from the text itself. 40. The Regulation, despite being directly applicable in the Belgian legal order, had been adopted on the basis of Article 280 of the EEC Treaty ( see paragraph 35 above), from which it followed that the Regulation in question did not seek to define or redefine any particular provision of the Belgian Criminal Code. This simply confirmed that failure to observe the professional secrecy by which OLAF officials were bound did not constitute an offence under Belgian criminal law. 41. Article 8 § 2 of the Regulation, which dealt with professional secrecy, provided that the information covered by such secrecy “ shall enjoy the protection given by the provisions applicable to the institutions of the European Communities”. Accordingly, no reference was made to the provisions of domestic law. A breach of the duty of non-disclosure to which the Staff Regulations of Officials of the European Communities referred or of the professional secrecy to which European civil servants were subject by virtue of the Regulation was punishable in disciplinary rather than criminal proceedings. 42. The applicant challenged both the lawfulness and the legitimacy of the searches complained of. Relying on the case - law as it had stood at the time of the searches, he argued firstly that although the Protection of Journalists’ Sources Act of 7 April 2005 had been passed after the searches had been carried out, it was applicable by analogy in the instant case. In his submission, that Act had set forth in law the principles reaffirmed on many occasions by the Court, which had already been applied in the Belgian legal system. The applicant further argued that the searches had been unlawful as they had not been carried out in pursuit of any of the aims referred to in paragraph 2 of Article 10, but merely in order to discover the applicant ’ s source, that is to say, the name of the OLAF official who had breached professional secrecy, or evidence of possible bribery. 43. As to whether the interference had been necessary, the applicant pointed out that no charges had ever been brought against him, the searches having been carried out in respect of a person or persons unknown. In his submission, the fact that the published articles contained confidential information proved at most that an OLAF official had probably disclosed confidential information. However, that fact did not provide evidence of any offence by a third party, let alone by the applicant. Moreover, the judicial authorities had failed to check the information referred to in OLAF’s interim report before conducting the searches complained of. Such an attitude constituted unacceptable negligence. The report could in no way be treated as a criminal complaint, but merely as the transmission of information by OLAF to the Belgian authorities. The forwarding of this report had not given rise to any obligation on the part of the judicial authorities, which had to assume full responsibility for checking the accuracy of the information contained therein and determining whatever action they considered appropriate to take on it. The report was not in itself sufficient proof of the lawfulness and legitimacy of the searches. 44. The applicant added that the report had been worded in hypothetical terms and based exclusively on rumours. A simple reading of the text showed that OLAF had obtained only one witness statement, that of J.G., who had said that for the sum of EUR or DEM 8, 000, the applicant had obtained confidential information from an OLAF official working at the material time for a European Commissioner and for the Commission spokesperson, who had both been criticised in the articles published by the applicant. Faced with the clear lack of impartiality of the only witness statement on which the OLAF report was based, the investigating judge should, at the very least, have questioned J.G. to confirm his allegations before ordering the searches. In the applicant’s view, such checks had been all the more necessary since the searches had not concerned an ordinary individual but a journalist. Moreover, the Belgian courts had taken the view that the conviction of a journalist for handling information disclosed in breach of professional confidence or for aiding and abetting such a breach should be regarded as contrary to Article 10. 45. The applicant further complained that the seizures carried out had been disproportionate. In support of his argument, he pointed out that the judicial authorities had not been able, either during the searches or subsequently, to provide him with an inventory of the items seized, on the pretext that it would be too burdensome to draw up a full list. Moreover, the authorities had lost a crate of documents, which the police had not found until more than seven months later, in November 2004. 46. The applicant lastly contended that to cooperate with the investigating judge and provide documents possibly revealing the identity of his source would have been inconsistent with his obligations as a journalist, as laid down in the Declaration of the Rights and Duties of Journalists adopted in Munich on 25 November 1971 by the International Federation of Journalists, the Code of the Principles of Journalism adopted by the Belgian Association of Newspaper Publishers, the National Federation of Weekly Newspapers and the Belgian General Association of Professional Journalists, and the Resolution on journalistic freedoms and human rights adopted in December 1994 at the fourth European Ministerial Conference on Mass Media Policy. ( b) The Government 47. Referring to the relevant provisions of the Code of Criminal Procedure and to the Court’s conclusions in its Ernst and Others v. Belgium judgment (no. 33400/96, 15 July 2003), the Government submitted that it was futile for the applicant to contest the legal basis for the interference. As regards the applicant ’ s claim that the breach of professional secrecy by a European civil servant did not constitute an offence under Belgian law, the Government pointed out that Article 458 of the Criminal Code imposed a duty of professional secrecy on “ all ... persons who, by reason of their status or profession, are guardians of secrets entrusted to them ”. European civil servants, including OLAF officials, were guardians, by reason of their profession, of secrets entrusted to them; Article 458 of the Criminal Code therefore applied expressly to them. Furthermore, and above all, Article 8 of Regulation (EC) No. 1073/1999, directly applicable in the Member States, made OLAF officials subject to professional secrecy, and the crucial issue in the present case was that there was an obligation on OLAF officials to observe professional secrecy. As regards the applicant’s initial allegation that the searches complained of were illegal on the ground that bribery could not justify either a search or a seizure, the Government noted the applicant’s subsequent statement that “ corruption constitutes a crime which, from a theoretical point of view, and in certain conditions defined by law, may justify searches under Belgian law ”. 48. The Government further submitted that the legitimacy of the interference had been established; the measures complained of had been intended to prevent the disclosure of information received in confidence and to prevent disorder and crime. Since the searches and seizures had been carried out in the context of the investigation conducted by the judicial authorities, it could not be disputed that they had pursued a legitimate aim. 49. As to whether the interference had been necessary, the Government drew the Court ’ s attention to one factor that in their submission fundamentally set this case apart from other cases dealt with by the Court concerning the protection of journalistic sources, namely the applicant ’s conduct. In the instant case, the purpose of the searches and seizures had been not only to reveal the identity of the person who had breached the duty of professional secrecy by which he was bound, but also to find evidence that the applicant had offered and accepted bribes as principal or joint principal. The protection of sources could not be relied upon to cover up offences committed by journalists and to grant them immunity from prosecution. In Fressoz and Roire v. France ([GC], no. 29183/95, §§ 52 and 55, ECHR 1999-I), the Court itself had stressed that the press must not go beyond certain limits and must obey the criminal law and act in accordance with professional ethics. 50. In the Government ’s submission, observance of criminal laws and the fight against corruption constituted an “ overriding public interest ” that had to prevail over the protection of sources. In the instant case, the articles published by Stern magazine and written by the applicant contained confidential information based on confidential documents emanating from OLAF. The investigating judge had had serious and precise information leading him to presume that the applicant had bribed a civil servant in order to obtain additional information. This presumption had been all the more legitimate since the information in question came from OLAF, a European agency with a sound reputation specifically engaged in the fight against corruption. 51. OLAF had taken care to carry out an internal investigation before lodging its criminal complaint. The investigating judge had therefore had every reason to believe that the offences complained of by OLAF were not merely allegations made and circulated recklessly. The measures at issue had therefore not been intended as a means of “ fishing ” for offences as yet unknown, but had sought to reveal the truth as to the applicant ’s alleged misconduct. The national courts had furthermore approved the choice made by the investigating judge. The Court of Cassation had remarked that in order to assess the lawfulness of a search, “ it [was] sufficient for the investigating judge to have evidence suggesting that the premises might be harbouring documents or items useful in establishing the truth concerning the offences mentioned in the search warrant ”. The obvious conclusion was that at the material time there had been relevant evidence to justify the impugned measures. 52. Lastly, the Government submitted that the impugned measures had complied with the principle of proportionality. They contended that the national courts were better placed than the Court to assess the proportionality of such measures and that it was extremely tricky to rule on questions of this nature, which were entirely dominated by the factual circumstances of each case. They concluded that the Court’s supervision could only be marginal. They further submitted that no criticism could be attached to the fact that the search had lasted eight hours since it would clearly be unreasonable to expect the authorities to survey the premises in a short period of time. They pointed out that a cabinet had been sealed at the scene following the applicant’s refusal to hand over the key to open it. The authorities had even suggested that the applicant tell them which documents he needed most so that they could examine them first. 2. The Court ’ s assessment ( a) General principles 53. Freedom of expression constitutes one of the essential foundations of a democratic society and the safeguards to be afforded to the press are of particular importance. Protection of journalistic sources is one of the cornerstones of freedom of the press. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result, the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest ( see Goodwin v. the United Kingdom, 27 March 1996, § 39, Reports of Judgments and Decisions 1996-II; Roemen and Schmit v. Luxembourg, no. 51772/99, § 57, ECHR 2003-IV; and Ernst and Others, cited above ). 54. The press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest ( see De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports 1997-I, and Fressoz and Roire, cited above, § 45). 55. As a matter of general principle, the “necessity” for any restriction on freedom of expression must be convincingly established. Admittedly, it is in the first place for the national authorities to assess whether there is a “pressing social need” for the restriction and, in making their assessment, they enjoy a certain margin of appreciation. In cases concerning the press, such as the present one, the national margin of appreciation is circumscribed by the interest of a democratic society in ensuring and maintaining a free press. Similarly, that interest will weigh heavily in the balance in determining, as must be done under paragraph 2 of Article 10, whether the restriction was proportionate to the legitimate aim pursued (see, mutatis mutandis, Goodwin, cited above, § 40, and Worm v. Austria, 29 August 1997, § 47, Reports 1997-V). ( b) Application of the above-mentioned principles in the instant case 56. In the present case, the Court considers that the searches at the applicant’s home and place of work undoubtedly amounted to an interference with his rights under paragraph 1 of Article 10. The Government admitted as much. 57. Such interference will breach Article 10 unless it was “prescribed by law”, pursued one or more legitimate aims under paragraph 2 and was “ necessary in a democratic society ” to achieve those aims. ( i) Prescribed by law 58. The Court, reiterating that it is primarily for the national authorities to interpret and apply domestic law, considers that the searches were indeed prescribed by law, namely by the various provisions of the Code of Criminal Procedure referred to by the Government ( see paragraph 32 above). The way in which these provisions were applied in the present case may affect the Court ’ s assessment of the necessity of the measure ( see Ernst and Others, cited above, § 97). ( ii) Legitimate aim 59. In the Court’s opinion, the interference pursued the “legitimate aim” of preventing disorder and crime and also sought to prevent the disclosure of information received in confidence and to protect the reputation of others. ( iii) Necessary in a democratic society 60. The main issue is whether the impugned interference was “ necessary in a democratic society” to achieve that aim. It must therefore be ascertained whether the interference met a pressing social need, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it were relevant and sufficient. 61. The Court notes that the facts of the case are similar to those in the cases of Roemen and Schmit and Ernst and Others cited above. The Government submitted that this case differed from the others on account of the conduct of the applicant, who had not been a passive party in the leak of confidential information but had brought it about himself by bribing the OLAF official. The Court notes that OLAF opened an internal investigation to reveal the identity of the official who had disclosed this information to the applicant and published a press release in which it informed the public that it could not be ruled out that a payment might have been made to one of its officials ( see paragraphs 9 and 12 above). OLAF even told the European Ombudsman, in the course of the inquiry into complaint no. 1840/200 GG filed by the applicant against OLAF, that the suspicions of bribery had arisen out of information from reliable sources, including members of the European Parliament ( see paragraph 11 above). In his decision of 30 November 2003 the European Ombudsman concluded that by proceeding to make allegations of bribery without a factual basis that was both sufficient and available for public scrutiny, OLAF had gone beyond what was proportional to the purpose pursued by its action, which constituted an instance of maladministration ( see paragraph 13 above). 62. Since the internal investigation was not able to determine who was responsible for the leak, OLAF filed a complaint against the applicant on 11 February 2004 with the Belgian judicial authorities, which opened an investigation into bribery of a civil servant ( see paragraphs 14-15 above). On 19 March 2004 the applicant ’ s home and place of work were searched ( see paragraph 16 above). 63. It is clear that, at the time when the searches in question were carried out, their aim was to reveal the source of the information reported by the applicant in his articles. Since OLAF ’ s internal investigation did not produce the desired result, and the suspicions of bribery on the applicant ’s part were based on mere rumours, as revealed by the European Ombudsman ’s inquiries on two occasions in 2003 and 2005, there was no overriding requirement in the public interest to justify such measures. 64. They therefore undoubtedly impinged on the protection of journalists’ sources. The fact that the searches and seizures apparently proved unproductive did not deprive them of their purpose, namely to establish, for the benefit of OLAF, the identity of the person responsible for disclosing the confidential information (see, mutatis mutandis, Ernst and Others, cited above, § 100). 65. The Court emphasises that the right of journalists not to disclose their sources cannot be considered a mere privilege to be granted or taken away depending on the lawfulness or unlawfulness of their sources, but is part and parcel of the right to information, to be treated with the utmost caution. This applies all the more in the instant case, where the suspicions against the applicant were based on vague, unsubstantiated rumours, as was subsequently confirmed by the fact that he was not charged ( see paragraph 27 above). 66. The Court further notes the amount of property seized by the authorities: sixteen crates of papers, two boxes of files, two computers, four mobile telephones and a metal cabinet. No inventory of the items seized was drawn up. The police even apparently lost a whole crate of papers, which were not found until more than seven months later ( see paragraph 16 above). 67. The Court is thus of the opinion that while the reasons relied on by the national courts may be regarded as “ relevant ”, they were not “ sufficient ” to justify the impugned searches. 68. It concludes that the measures complained of are to be considered disproportionate and, accordingly, that they breached the applicant ’ s right to freedom of expression enshrined in Article 10 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 69. The applicant complained of a violation of his right to a fair trial. He relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows : “ In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [ a ] ... tribunal. ” 70. The applicant submitted that there had been a breach of the principle of equality of arms both before the Indictment Division and before the Court of Cassation, since those courts, in refusing to discontinue the seizures complained of, had ruled that the complaint by OLAF was well - founded. He also complained that he had not had access to the investigation file. 71. The Court reiterates that equality of arms requires each party to be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent. The Court cannot see anything in the complaint, as formulated by the applicant, that might undermine this equality. Furthermore, according to the information in the case file, the applicant was never charged or committed for trial. On the basis of the information produced, the Court finds no appearance of a violation of this provision of the Convention. 72. It follows that this complaint must be dismissed as being manifestly ill- founded, pursuant to Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 73. Article 41 of the Convention provides: “ If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party. ” A. Non-pecuniary damage 74. The applicant submitted that he had suffered damage not only as a result of having been deprived of his working documents and information media that had been removed by the police but also as a result of his loss of credibility in the eyes both of the public and of anyone who might be able to provide him with information as a journalist. Confidence in his ability to protect the anonymity of his sources, a vital part of a journalist ’ s profession, had been irrevocably shaken. He maintained that as a result, he was no longer in a position to cover the work of the European Commission as he had done in the past, since his potential sources of information no longer had any confidence in his ability to keep their identities secret. Furthermore, the searches carried out at his home and place of work had damaged his honour. Lastly, he submitted that he was unable to carry on his work in decent conditions, since approximately one thousand pages of documents useful for his work had been seized. He claimed 25, 000 euros (EUR) ex aequo et bono in respect of the non-pecuniary damage thus sustained. 75. The Government submitted as their main argument that if the Court were to find that a violation could be attributed to the Belgian State, it would be for the applicant to establish before the national courts the damage he had sustained. It followed from the settled case - law of the Court of Cassation that by virtue of the principles governing redress for damage arising out of a legislative error ranking as a tort, reparation must be made for the fault committed by the State. In the alternative, the Government submitted that the applicant had furnished no evidence to support his claims. 76. The Court has no doubt that in the circumstances of the case, the searches and seizures carried out at the applicant ’s home and place of work caused him anxiety and distress. Ruling on an equitable basis, as required by Article 41, the Court awards him the sum of EUR 10, 000 in respect of non-pecuniary damage. B. Costs and expenses 77. The applicant asserted that the costs and fees of his lawyers relating to his representation amounted to EUR 116, 422.43, although the services actually provided by his counsel were considerably in excess of that amount. His employer had agreed to advance that sum. He submitted that half of the services provided related to his representation before the Belgian courts and before the Court. He sought a lump sum of EUR 50, 000. 78. The Government submitted that the applicant had not explained in sufficient detail how he had arrived at that exact figure. 79. The Court reiterates that costs and expenses will not be awarded under Article 41 unless it is established that they were actually incurred, were necessarily incurred and were also reasonable as to quantum ( see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI). Furthermore, legal costs are only recoverable in so far as they relate to the violation found ( see Van de Hurk v. the Netherlands, 19 April 1994, § 66, Series A no. 288). 80. The Court notes that the applicant has submitted three invoices to it ( amounting to a total of EUR 98, 864. 66 ) in relation to steps taken by his lawyers in 2004 and his representation before the Belgian authorities. The Court does not doubt that the purpose of such steps was essentially to secure redress for the Convention violations alleged before the Court. It further notes the applicant ’ s statement that a large part at least of his lawyers’ fees has been advanced by Stern magazine. 81. Having regard to the circumstances of the case and ruling on an equitable basis as required by Article 41 of the Convention, the Court finds it reasonable to award EUR 30,000, plus VAT, in respect of all costs incurred in Belgium and in Strasbourg. C. Default interest 82. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 10 of the Convention. It emphasised in particular that a journalist’s right not to reveal her or his sources could not be considered a mere privilege to be granted or taken away depending on the lawfulness or unlawfulness of their sources, but was part and parcel of the right to information. It found the reasons given by the Belgian courts to justify the searches insufficient. |
919 | Objective and subjective criteria | PROCEEDINGS BEFORE THE COMMISSION 25. Mr Langborger ’ s application to the Commission (no. 11179/84) was lodged on 7 September 1984. He alleged that he had not been given a public hearing by an independent and impartial tribunal. He also complained of a breach of his rights to respect for his home, his freedom of association and enjoyment of his possessions and of the lack of an effective remedy before a national "authority". He relied on Articles 6 para. 1, 8, 11 and 13 (art. 6-1, art. 8, art. 11, art. 13) of the Convention and Article 1 of Protocol No. 1 (P1-1). 26. The Commission found the application admissible on 9 July 1986. In its report of 8 October 1987 (Article 31) (art. 31), it expressed the unanimous opinion that: - there had been a failure to comply with the requirements of Article 6 para. 1 (art. 6-1) of the Convention regarding impartiality; - there had been no violation of Articles 8 and 11 (art. 8, art. 11) of the Convention and Article 1 of Protocol No. 1 (P1-1); - it was not necessary to consider separately the complaint based on Article 13 (art. 13) of the Convention, nor to determine whether there had been a failure to observe Article 6 para. 1 (art. 6-1) as regards the requirement of a public hearing and a public pronouncement of the judgment. The full text of the Commission ’ s opinion is reproduced as an annex to the present judgment. FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT 27. At the hearing on 21 February 1989, the Government confirmed their submission made in their memorial inviting the Court "to hold that there has been no violation of the Convention in the present case". AS TO THE LAW I. PRELIMINARY OBSERVATION 28. The applicant argued that his various complaints were to be "taken together" and had "a common cause". The Court considers it necessary first to take separately the different articles relied upon. It will then appraise the case in the light of the complaints viewed together. II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE CONVENTION 29. Mr Langborger alleged the violation of paragraph 1 of Article 6 (art. 6-1) of the Convention, which is worded as follows: "In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ... ". A. "Independent and impartial" tribunal 30. In the applicant ’ s submission, his claim for a fixed rent and no negotiation clause was not examined by an independent and impartial tribunal. His true opponents, he argued, were the landlords ’ association and tenants ’ organisation inasmuch as his proposal to delete the negotiation clause from the lease threatened the interests of both organisations since they derived their very existence from rent negotiations. As the lay assessors sitting on the Rent Review Board and the Housing and Tenancy Court were committed to the defence of those interests, they could not assess his claim with the necessary independence and impartiality. This view was contested by the Government. Like the Commission, the Court will limit its examination to the Housing and Tenancy Court. This body was the last national organ to determine both the questions of fact and the legal issues in dispute (the Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 23, para. 51). 31. When it decided the applicant ’ s case, the Housing and Tenancy Court was composed of two professional judges and two lay assessors nominated respectively by the Swedish Federation of Property Owners and the National Tenants ’ Union, and then appointed by the Government (see paragraphs 13 and 22 above). The independence and impartiality of the professional judges are not at issue. It remains to consider the position of the two lay assessors. 32. In order to establish whether a body can be considered "independent", regard must be had, inter alia, to the manner of appointment of its members and their term of office, to the existence of guarantees against outside pressures and to the question whether the body presents an appearance of independence (see, inter alia, the Campbell and Fell judgment of 28 June 1984, Series A no. 80, pp. 39-40, para. 78). As to the question of impartiality, a distinction must be drawn between a subjective test, whereby it sought to establish the personal conviction of a given judge in a given case, and an objective test, aimed at ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see, amongst other authorities, the De Cubber judgment of 26 October 1984, Series A no. 86, pp. 13-14, para. 24). In this case it appears difficult to dissociate the question of impartiality from that of independence. 33. The proceedings instituted in the Housing and Tenancy Court concerned essentially the question whether the negotiation clause was to be retained (see paragraphs 10 and 12 above) and not how it was to be applied (the fixing of the rent payable by Mr Langborger). 34. Because of their specialised experience, the lay assessors, who sit on the Housing and Tenancy Court with professional judges, appear in principle to be extremely well qualified to participate in the adjudication of disputes between landlords and tenants and the specific questions which may arise in such disputes. This does not, however, exclude the possibility that their independence and impartiality may be open to doubt in a particular case. 35. In the present case there is no reason to doubt the personal impartiality of the lay assessors in the absence of any proof. As regards their objective impartiality and the question whether they presented an appearance of independence, however, the Court notes that they had been nominated by, and had close links with, two associations which both had an interest in the continued existence of the negotiation clause. As the applicant sought the deletion from the lease of this clause, he could legitimately fear that the lay assessors had a common interest contrary to his own and therefore that the balance of interests, inherent in the Housing and Tenancy Court ’ s composition in other cases, was liable to be upset when the court came to decide his own claim. The fact that the Housing and Tenancy Court also included two professional judges, whose independence and impartiality are not in question, makes no difference in this respect. 36. Accordingly, there has been a violation of Article 6 para. 1 (art. 6-1). B. Lack of a public hearing and public pronouncement 37. Mr Langborger also complained of a lack of a public hearing and of the fact that there was no public pronouncement of the Housing and Tenancy Court ’ s decision. In accordance with the Commission ’ s opinion and in the light of the conclusion reached in the preceding paragraph, the Court does not consider it necessary to rule on a complaint which, moreover, the applicant has not pursued before it. III. ALLEGED VIOLATION OF ARTICLES 8 AND 11 (art. 8, art. 11) OF THE CONVENTION 38. Mr Langborger further alleged a breach of his right to respect for his "home" within the meaning of Article 8 (art. 8). He considered that the power, conferred on the Tenants ’ Union, to negotiate on his behalf the amount of the rent for the flat in which he lived was incompatible with the requirements of this provision because the rights and obligations deriving from the lease were, in his view, rooted in the notion of "home". He also complained of a violation of his freedom of association guaranteed under Article 11 (art. 11), on the ground that he had to accept, against his will, the services of the Tenants ’ Union in the negotiations, for which services he also had to pay. The Government disputed these views. 39. The Court finds that the questions raised under these heads do not come within the scope of the Articles relied upon. IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 (P1-1) 40. According to Mr Langborger, the legal obligation to make financial contributions to the Tenants ’ Union (see paragraphs 7 and 16 above) also entails a deprivation of possessions contrary to Article 1 of Protocol No. 1 (P1-1), according to which: "Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties." 41. In the Court ’ s view, the obligation to pay the small sums involved cannot be regarded as inconsistent with this Article (P1-1). V. ALLEGED VIOLATION OF ARTICLE 13 (art. 13) OF THE CONVENTION 42. Finally, the applicant relied on Article 13 (art. 13) of the Convention, which provides as follows: "Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity." He claimed that he did not have any effective remedy against the various breaches of the Convention of which he complained. 43. With regard to the alleged violations of Article 6 (art. 6) of the Convention, the Court, like the Commission, does not find it necessary to examine the case under Article 13 (art. 13), whose requirements are less strict than, and are here absorbed by, those of Article 6 (art. 6) (see, inter alia, the Pudas judgment of 27 October 1987, Series A no. 125-A, p. 17, para. 43). Moreover, Article 13 cannot here be taken in conjunction with Articles 8 and 11 (art. 13+8, art. 13+11) of the Convention, which are themselves inapplicable (see paragraphs 38-39 above), or with Article 1 of Protocol No. 1 (art. 13+P1-1) because the complaint based on that provision has not given rise to an "arguable" claim (see paragraph 41 above). VI. EXAMINATION OF THE COMPLAINTS VIEWED TOGETHER 44. After having considered the different Articles separately, the Court examined the case in the light of all the complaints viewed together. This appraisal did not lead it to alter the various conclusions set out above. VII. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION 45. Mr Langborger sought just satisfaction under Article 50 (art. 50), according to which "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." A. Work carried out by the applicant 46. He claimed in the first place 30,000 Swedish crowns (SEK) for his work on the case. On this question he referred to a rule which was said to exist in Swedish law, but did not state whether his claim related to the proceedings in the national courts, the proceedings before the Convention organs, or both. The Government disputed the claim, while the Commission left the matter to be decided by the Court. 47. The Court affords "just satisfaction" only "if necessary", and without being bound by domestic rules. Moreover the applicant, who was assisted by counsel both in Sweden and in Strasbourg, has not established why it is necessary to compensate him for his own work. B. Pecuniary damage 48. Mr Langborger also claimed 50,000 SEK for the pecuniary damage which he allegedly sustained as a result of the unfavourable method used to calculate his rent. 49. It is not for the Court to speculate as to what the outcome of the contested proceedings would have been if the violation which it has found had not occurred, and there is nothing to show that a decision taken by a court of a different composition would have been in the applicant ’ s favour. C. Non-pecuniary damage 50. The applicant requested in addition 100,000 SEK in respect of non-pecuniary damage. He argued that a purely nominal award could not suffice. 51. The Court considers that the finding of a breach of Article 6 (art. 6) constitutes in itself adequate just satisfaction in this respect. D. Costs and expenses 52. Finally, Mr Langborger requested reimbursement of 104,000 SEK in lawyer ’ s fees and 13,475 SEK in general and travelling expenses. As regards the first claim, the Government did not dispute the hourly rate of 500 SEK, but considered excessive the total number of hours (208) which Mr Grennberg was said to have devoted to preparing the file. For his part, the Commission ’ s Delegate stressed that much time had been spent studying questions of secondary importance. 53. The Court notes that it has declared only one of the applicant ’ s complaints founded and, making an assessment on equitable grounds, considers it appropriate to award the applicant, by way of reimbursement of the fees in question, 50,000 SEK, to which should be added 13,475 SEK in respect of general and travelling expenses. | Limiting its examination to the Housing and Tenancy Court – which, when it decided the applicant’s case, was composed of two professional judges and two lay assessors nominated respectively by the Swedish Federation of Property Owners and the National Tenants’ Union, and then appointed by the Government – which was the last national organ to determine both the questions of fact and the legal issues in dispute, the Court held that there had been a violation of Article 6 § 1 of the Convention in the present case. It noted in particular that, in order to establish whether a body can be considered independent, regard must be had, inter alia, to the manner of appointment of its members and their term of office, to the existence of guarantees against outside pressures and to the question whether the body presents an appearance of independence. As to the question of impartiality, a distinction must be drawn between a subjective test, whereby it sought to establish the personal conviction of a given judge in a given case, and an objective test, aimed at ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect. As regards the lay assessors, the Court considered it difficult in this case to dissociate the question of impartiality from that of independence. While the latter appeared in principle extremely well qualified to participate in the adjudication of disputes between landlords and tenants and the specific questions which may arise in such disputes, the Court accepted, however, that their independence and impartiality might be open to doubt in a particular case. In the present case there was no reason to doubt their personal impartiality in the absence of any proof. As regards their objective impartiality and the question whether they presented an appearance of independence, however, the Court noted that they had been nominated by, and had close links with, two associations which both had an interest in the continued existence of the negotiation clause. As the applicant sought the deletion from the lease of this clause, he could legitimately fear that the lay assessors had a common interest contrary to his own and therefore that the balance of interests, inherent in the Housing and Tenancy Court’s composition in other cases, was liable to be upset when the court came to decide his own claim. The fact that the Housing and Tenancy Court also included two professional judges, whose independence and impartiality were not in question, made no difference in this respect. |
763 | Right to life and right to respect for private life | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Basic Law 21. Article 6 § 1 of the Basic Law provides that marriage and family enjoy the special protection of the State. Under Article 2 § 2 of the Basic Law every person has the right to life and physical integrity. The Federal Constitutional Court has accepted the posthumous protection of human dignity in cases where the image of the deceased person had been impaired in the eyes of posterity by ostracism, defamation, mockery or other forms of disparagement (see decision of 5 April 2001, no. 1 BvR 932/94). B. The Narcotics Act 22. The Narcotics Act governs the control of narcotic drugs. Three annexes to the Act enumerate the substances, which are considered as drugs, including pentobarbital of sodium in Annex III. According to section 4 (1) no. 3 (a) of the Narcotics Act it is permissible to obtain the substances listed in Annex III if they are prescribed by a medical practitioner. In all other cases, section 3(1)(1) of the Act provides that the cultivation, manufacture, import, export, acquisition, trade and sale of drugs are subject to authorisation from the Federal Institute for Drugs and Medical Devices. In accordance with section 5(1)(6) of the Act, no such authorisation can be granted if the nature and purpose of the proposed use of the drug contravenes the purposes of the Narcotics Act, namely, to secure the necessary medical care of the population, to eliminate drug abuse and to prevent drug addiction. Doctors may only prescribe pentobarbital of sodium if the use thereof on or in the human body is justified (section 13 (1)(1) of the Narcotics Act). C. Provisions governing doctors’ duties at the end of a patient’s life 1. Criminal responsibility 23. Section 216 of the Criminal Code reads as follows: Killing at the request of the victim; mercy killing “(1) If a person is induced to kill by the express and earnest request of the victim the penalty shall be imprisonment from six months to five years. (2) Attempts shall be punishable” Committing suicide autonomously is exempt from punishment under German criminal law. It follows that the act of assisting an autonomous suicide does not fall within the ambit of section 216 of the Criminal Code and is exempt from punishment. However, a person can be held criminally responsible under the Narcotics Act for having provided a lethal drug to an individual wishing to end his or her life. According to the case-law of the Federal Court of Justice (compare judgment of 13 September 1994, 1 StR 357/94) the discontinuation of a life ‑ prolonging treatment of a terminally ill patient with the patient’s consent does not engage criminal responsibility. This applies irrespective of the fact that the interruption of the treatment has to be effected by actively stopping and switching off the medical device (Federal Court of Justice, judgment of 25 June 2010, 2 StR 454/09). 2. Professional rules for doctors 24. The professional codes of conduct are drawn up by the medical associations under the supervision of the health authorities. The codes are largely similar to the Model Professional Code for German Doctors, section 16 of which provides as follows: (Assisting the dying) “(1) Doctors may – prioritising the will of the patient – refrain from life-prolonging measures and limit their activities to the mitigation of symptoms only if postponement of an inevitable death would merely constitute an unacceptable prolongation of suffering for the dying person. (2) Doctors may not actively curtail the life of the dying person. They may not put their own interests, or the interests of third parties, above the well-being of the patient.” Contraventions against the Professional Code of Conduct are sanctioned by disciplinary measures culminating in a withdrawal of the licence to practise medicine. In connection with the demand for doctor-assisted suicide, the 112 th German Medical Assembly of May 2009 resolved that doctors should provide assistance in and during the process of dying, but should not help patients to die, as the involvement of a doctor in suicide would contravene medical ethics. IV. COMPARATIVE LAW 26. Comparative research in respect of forty-two Council of Europe Member States shows that in thirty-six countries (Albania, Andorra, Austria, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, France, Georgia, Greece, Hungary, Ireland, Latvia, Lithuania, the Former Yugoslav Republic of Macedonia, Malta, Moldova, Monaco, Montenegro, Norway, Poland, Portugal, Romania, Russia, San Marino, Spain, Serbia, Slovakia, Slovenia, Turkey, Ukraine and the United Kingdom) any form of assistance to suicide is strictly prohibited and criminalised by law. In Sweden and Estonia, assistance to suicide is not a criminal offence; however, Estonian medical practitioners are not entitled to prescribe a drug in order to facilitate suicide. Conversely, only four member States (Switzerland, Belgium, the Netherlands and Luxembourg) allow medical practitioners to prescribe lethal drugs, subject to specific safeguards (compare Haas v. Switzerland, no. 31322/07, §§ 30-31 and 55, 20 January 2011). THE LAW I. ALLEGED VIOLATION OF THE APPLICANT’S RIGHTS UNDER ARTICLE 8 OF THE CONVENTION 27. The applicant complained that the domestic courts’ refusal to examine the merits of his complaint about the Federal Institute’s refusal to authorise his wife to acquire a lethal dose of pentobarbital of sodium had infringed his right to respect for private and family life under Article 8 of the Convention, which provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Whether there had been an interference with the applicant’s rights under Article 8 1. Submissions by the Government 28. According to the Government, there had not been any interference with the applicant’s rights under Article 8 of the Convention. The Government considered that the applicant could not claim to be a victim of a violation of his Convention rights within the meaning of Article 34 of the Convention. They submitted that the applicant himself was not the subject of the State measure complained of; neither could he qualify as an “indirect victim”. 29. The Government did not dispute the fact that the applicant had been emotionally affected by his wife’s suicide and the surrounding circumstances. It was true that the Court had accepted that under very specific circumstances serious violations of the Convention rights guaranteed in Articles 2 and 3 might give rise to additional violations of close relatives in view of the emotional distress inflicted upon them. However, there was no indication that, in terms of degree and manner, the applicant’s suffering went beyond the burden that was inevitable when a spouse faced obstacles in organising his or her suicide. 30. In contrast to cases in which the victim was prevented by State action from lodging an application, the applicant’s wife had been in a position to lodge a complaint with the Court herself even after the alleged violation of her Convention right. The fact that she had ended her life of her own accord before lodging an application could not result in an extension of the entitlement to lodge an application, having particular regard to the fact that she had not availed herself of any possibility to accelerate the proceedings, for example by requesting interim measures. 31. The Government further considered that the applicant could not plead that a decision on the application was in the public interest, because the Court had already clarified the relevant issues regarding Article 8 of the Convention in its Pretty judgment (cited above), and Article 37 § 1 of the Convention was not applicable to a case in which the immediate victim of a measure taken by the State had died before lodging an application with the Court. 32. According to the Government, Article 8 of the Convention was not applicable in the instant case. They considered that the instant case had to be distinguished from the Pretty case in that the applicant’s wife had not sought protection from State interference with the realisation of her wish to end her life, but had sought to oblige the State to facilitate the acquisition of a specific drug so that she could take her life in the manner she desired. Such a duty would be diametrically opposed to the values of the Convention, and especially to the State’s duty under Article 2 to protect life. 33. They pointed out that the Court, in the Pretty case (cited above, § 67), was not prepared explicitly to spell out that Article 8 encompassed a right of every person to decide on the end of his or her life and to receive assistance if necessary. The same held true for the Haas case (cited above, § 61), in which the Court refused to derive a positive obligation from Article 8 to facilitate suicide in dignity. It thus remained unclear whether B.K. had a substantial right to assistance in order to end her life in dignity under Article 8. 34. Neither was there any interference with a procedural right derived from Article 8. According to the Government, the Court had accepted procedural guarantees relating to family life only in cases where the existence of a substantive right under Article 8 was not in doubt. The procedural guarantees inherent in Article 8 were devised to avert the risk that the conduct of the proceedings as such predetermined their outcome. Conversely, in the instant case, the outcome of the proceedings had not been predetermined by the conduct of the proceedings, but by B.K.’s autonomous decision to end her life. It would be fruitless to derive an additional procedural protection from Article 8 if the substantive right to be protected had yet to be established. This held all the more true since the general procedural guarantees of access to court and fairness in the proceedings were sufficiently covered by Articles 6 § 1 and 13 of the Convention. 2. Submissions by the applicant 35. The applicant submitted that the domestic decisions interfered with his own rights under Article 8 of the Convention. Both the Federal Institute and the domestic courts had failed to appreciate that he had a personal interest in the decision on his late wife’s request. This personal interest derived from the wish that his wife’s decision to end her life be respected. Furthermore, the distressing situation provoked by his wife’s unfulfilled wish to commit suicide had immediate repercussions on his own state of health. 36. The applicant pointed out that his wife had been prevented from ending her life within the privacy of their family home, as originally planned by the couple, and instead he had been forced to travel to Switzerland to enable his wife to commit suicide. The Court had previously considered closest family members to be victims within the meaning of Article 34 of the Convention because of their close relationship to the person mainly concerned, if the interference had implications for the family member lodging the application. In the case at hand, the applicant and his wife had found themselves in a terrible situation, which also concerned the applicant as a compassionate husband and devoted carer. As the relationship between husband and wife was extremely close, any infringement directed against the rights and liberties of one partner was directed against the rights that were shared by both partners. It followed that each partner in the marriage was entitled to defend the joint rights and liberties of both partners and that the applicant was himself a victim of a violation of his Convention rights. 37. In the present case, denying the right of the widower to complain about the conduct of the German authorities would mean that B.K., in order not to lose her right to submit her complaint, would have been forced to stay alive – with all the suffering this implied – until the entire proceedings before the domestic courts, as well as before the Court, were terminated. As B.K. had died shortly after lodging the administrative appeal in January 2005, she had had no factual possibility of accelerating the court proceedings by requesting interim measures. 38. Consequently, the questions raised in the present application would never be answered unless a patient endured many years of additional suffering. This would be in direct contradiction to the essence of the Convention, which was the protection of human dignity, freedom and autonomy and to the principle that the Convention was intended to guarantee not rights that were theoretical or illusory, but rights that were practical and effective (the applicant referred to Artico v. Italy, 13 May 1980, Series A no. 37). 39. According to the applicant, Article 8 of the Convention encompassed the right to end one’s own life. The right to life in the sense of Article 2 did not contain any obligation to live until the “natural end”. B.K.’s decision to end her biological life did not imply that she waived in any way her right to life. The lethal dose of medication requested by her would have been necessary in order to allow her to end her life by a painless and dignified death in her own family home. Because of the refusal to authorise the purchase, she had been forced to travel to Switzerland in order to end her life. 3. Submissions by the third parties (a) Dignitas 40. Dignitas submitted that a person’s decision to determine the manner of ending his or her life was part of the right to self-determination protected by Article 8 of the Convention. A Contracting State should only regulate the right of an individual who independently decided on the time or methods of his or her demise in order to prevent hasty and insufficiently considered actions. As far as the associations working in this field already had preventive mechanisms in place, governmental measures were not necessary in a democratic society. (b) AlfA 41. Referring to the Court’s case law, in particular the case of Sanles Sanles v. Spain ((dec.), no. 48335/99, ECHR 2000 ‑ XI) AlfA submitted that the rights relied upon by the applicant were of a non-transferable nature and could not be relied upon by a third party. Under the case-law of the Court, transferability of victim status could only occur where the alleged violation had prevented the direct victim from asserting his claim ( Bazorkina v. Russia, no. 69481/01, § 139, 27 July 2006) or where the negative consequences of an alleged violation directly affected the heirs bringing a claim on behalf of the deceased ( Ressegatti v. Switzerland, no. 17671/02, § 25, 13 July 2006). However, none of these principles applied in case an applicant, having complained about the denial of authorisation to die by assisted suicide, subsequently died as a result of assisted suicide carried out under a jurisdiction where such act was not illegal. 42. Furthermore, neither the Convention nor any other document governing the right to life had ever recognised the converse right to die. The liberalisation of assisted suicide in the Netherlands had led to an alarming number of abuse cases, in which lethal injections were given without the patient’s consent. 4. The Court’s assessment 43. The Court observes, at the outset, that it qualifies the Government’s objection against the applicant’s victim status as a question of whether there had been an interference with the applicant’s own rights under Article 8 of the Convention. The Court notes that the applicant submitted that his wife’s suffering and the eventual circumstances of her death affected him in his capacity as a compassionate husband and carer in a way which led to a violation of his own rights under Article 8 of the Convention. In this respect, the instant case has to be distinguished from cases brought before the Court by the deceased person’s heir or relative solely on behalf of the deceased. It follows that it does not have to be determined in the present context whether the Convention right relied upon by the applicant was capable of being transferred from the immediate victim to his or her legal successor (compare in this respect Sanles Sanles, cited above). 44. In spite of these differences, the Court considers that the criteria developed in its previous case-law for allowing a relative or heir to bring an action before the Court on the deceased person’s behalf are also of relevance for assessing the question whether a relative can claim a violation of his own rights under Article 8 of the Convention. The Court will thus proceed by examining the existence of close family ties (see (a) below, compare, for example, Direkçi, v. Turkey (dec.), no. 47826/99, 3 October 2006); whether the applicant had a sufficient personal or legal interest in the outcome of the proceedings (see (b), below, compare Bezzina Wettinger and Others v. Malta, no. 15091/06, § 66, 8 April 2008; Milionis and Others v. Greece, no. 41898/04, §§ 23-26, 24 April 2008; Polanco Torres and Movilla Polanco, cited above, § 30, 21 September 2010) and whether the applicant had previously expressed an interest in the case (see (c), below, compare Mitev v. Bulgaria (dec.), no. 42758/07, 29 June 2010). 45. (a) The Court notes, at the outset, that the applicant and B.K. had been married for 25 years at the time the latter filed her request to be granted the permission to acquire the lethal drug. There is no doubt that the applicant shared a very close relationship with this late wife. (b) The applicant has further established that he had accompanied his wife throughout her suffering and had finally accepted and supported her wish to end her life and travelled with her to Switzerland in order to realise this wish. (c) The applicant’s personal commitment is further demonstrated by the fact that he lodged the administrative appeal jointly with his wife and pursued the domestic proceedings in his own name after her death. Under these exceptional circumstances, the Court accepts that the applicant had a strong and persisting interest in the adjudication of the merits of the original motion. 46. The Court further observes that the instant case concerns fundamental questions evolving around a patient’s wish to self ‑ determinedly end his or her life which are of general interest transcending the person and the interest both of the applicant and of his late wife. This is demonstrated by the fact that similar questions have repeatedly been raised before the Court (compare Pretty and Sanles Sanles, both cited above, and, most recently, Haas, cited above). 47. The Court finally turns to the Government’s argument that there had been no need to grant the applicant an own right to pursue his wife’s motion, as B.K. could have awaited the outcome of the proceedings before the domestic courts, which she could have accelerated by requesting interim measures. The Court observes, at the outset, that the applicant and B.K. jointly lodged an administrative appeal on 14 January 2005. On 12 February 2005, less than a month later, B.K. committed suicide in Switzerland. The ensuing proceedings before the domestic courts lasted until 4 November 2008, when the Federal Constitutional Court declared the applicant’s constitutional complaint inadmissible. It follows that the domestic proceedings were terminated some three years and nine months after B.K.’s death. 48. With regard to the Government’s submissions that B.K. could have requested interim measures in order to expedite the proceedings, the Court observes that interim measures are generally aimed at safeguarding a plaintiff’s legal position pending the main proceedings. They are, as a matter of principle, not meant to foreclose the outcome of the main proceedings. Having regard to the gravity of the claim at issue and to the irreversible consequences any granting of an interim injunction would necessarily have entailed, the Court is not convinced that requesting an interim injunction in the instant case would have been suited to accelerate the proceedings before the domestic courts. 49. Even assuming that the domestic courts would have processed the proceedings more speedily if B.K. had still been alive pending the proceedings, it is not for the Court to decide whether B.K., having decided to end her life after a long period of suffering, should have awaited the outcome of the main proceedings before three court instances in order to secure a decision on the merits of her claim. 50. Having regard to the above considerations, in particular to the exceptionally close relationship between the applicant and his late wife and his immediate involvement in the realisation of her wish to end her life, the Court considers that the applicant can claim to have been directly affected by the Federal Institute’s refusal to grant authorisation to acquire a lethal dose of pentobarbital of sodium. 51. The Court further reiterates that the notion of “private life” within the meaning of Article 8 of the Convention is a broad concept which does not lend itself to exhaustive definition (see, inter alia, Pretty, cited above, § 61). In the Pretty judgment, the Court established that the notion of personal autonomy is an important principle underlying the guarantees of Article 8 of the Convention (see Pretty, ibid. ). Without in any way negating the principle of sanctity of life protected under the Convention, the Court considered that, in an era of growing medical sophistication combined with longer life expectancies, many people were concerned that they should not be forced to linger on in old age or in states of advanced physical or mental decrepitude which conflicted with strongly held ideas of self and personal identity ( Pretty, cited above, § 65). By way of conclusion, the Court was “not prepared to exclude” that preventing the applicant by law from exercising her choice to avoid what she considered would be an undignified and distressing end to her life constituted an interference with her right to respect for private life as guaranteed under Article 8 § 1 of the Convention ( Pretty, cited above, § 67). 52. In the case of Haas v. Switzerland, the Court further developed this case-law by acknowledging that an individual’s right to decide in which way and at which time his or her life should end, provided that he or she was in a position freely to form her own will and to act accordingly, was one of the aspects of the right to respect for private life within the meaning of Article 8 of the Convention (see Haas, cited above, § 51). Even assuming that the State was under an obligation to adopt measures facilitating a dignified suicide, the Court considered, however, that the Swiss authorities had not violated this obligation in the circumstances of that specific case ( Haas, cited above, § 61). 53. The Court finally considers that Article 8 of the Convention may encompass a right to judicial review even in a case in which the substantive right in question had yet to be established (compare Schneider v. Germany, no. 17080/07, § 100, 15 September 2011). 54. Referring to the above considerations, the Court considers that the Federal Institute’s decision to reject B.K.’s request and the administrative courts’ refusal to examine the merits of the applicant’s motion interfered with the applicant’s right to respect for his private life under Article 8 of the Convention. B. Compliance with Article 8 § 2 of the Convention 55. The Court will thus proceed by examining whether the applicant’s own rights under Article 8 of the Convention were sufficiently safeguarded within the course of the domestic proceedings. 1. Submissions by the Government 56. The Government submitted that the applicant’s claims regarding his own rights were fully heard by the German courts. The mere fact that these courts rendered decisions of inadmissibility did not mean that they did not deal with the substance of the applicant’s claim. The Cologne Administrative Court examined the alleged violation of the applicant’s rights under Article 8 of the Convention and quoted the relevant case law of the Court. It followed that the applicant’s procedural rights had been sufficiently safeguarded in the domestic proceedings. 57. Even assuming that Article 8 of the Convention could impose the duty on a State to facilitate the acquisition of a specific drug in order to facilitate suicide, the Government considered that the Federal Institute’s refusal was justified under paragraph 2 of Article 8. The decision had a legal basis in the relevant provisions of the Narcotics Act and pursued the legitimate aim of protecting health and the right to life. As regarded the question whether the decision was necessary in a democratic society, the Government considered that they should be granted a wide margin of appreciation, having particular regard to the fact that the legal situation in the Member States varied considerably. They further referred to the ethical dimension of the question of whether and to what extent the State should facilitate or support suicide, which was demonstrated by the fact that the German National Ethics Council ( Nationaler Ethikrat ) had examined the questions at stake. The fundamental importance which the German legal order attached to the protection of life against inflicted euthanasia also had strong historical reasons which had led to a particularly forceful legal concept of human dignity. 58. Moreover, B.K. had other possibilities at her disposal to end her life painlessly. In particular, she could have demanded that her doctor switch off the respiratory equipment while being treated with palliative measures. Under the law as applied by the domestic courts at the relevant time (see paragraph 23 above) her doctor would not have risked criminal responsibility. 59. The Government further submitted that it was primarily up to the Government to assess which risks granting unrestricted access to drugs entailed. They considered that granting unrestricted access to a fatal drug could create an appearance of normality, which could lead to a sense of pressure on the part of the elderly and the seriously ill “not to become a burden”. Summing up, the Government considered that the overriding interest of protecting life justified the refusal to grant the applicant’s wife the authorisation to obtain a lethal dose of pentobarbital of sodium. 2. Submissions by the applicant 60. The applicant submitted that the domestic courts, by refusing to examine the merits of his motion, had violated his procedural rights under Article 8 of the Convention. 61. The decision taken by the Federal Institute failed to pursue a legitimate aim and was not necessary within the meaning of paragraph 2 of Article 8. The lethal dose of medication requested by the applicant’s wife would have been necessary in order to allow ending her life by a painless and dignified death in her own family home. There were no other means available which would have allowed her to end her life in her family home. In particular, the pertinent rules would not have allowed her to end her life by interrupting life-supporting treatment in a medically assisted way, as she was not terminally ill at the time she decided to put an end to her life. The pertinent law in this area was and remained unclear and only allowed the interruption of life-support for patients suffering from a life-threatening illness. 62. The applicant accepted that a measure of control was necessary in order to prevent abuse of lethal medication. However, suicide should be allowed if it was justified on medical grounds. The applicant further considered that assisted suicide was not incompatible with Christian values and was more broadly accepted by society than the Government might assume. In this respect, the applicant referred to several public statements issued by individual persons and non-governmental organisations in Germany. The applicant further emphasised that he did not advocate the provision of unrestricted access to lethal drugs, but merely considered that his wife should have been authorised the requested dose in this individual case. There was no indication that the decision of an adult and sane person to end his or her life ran counter to the public interest or that the requested authorisation would lead to an abuse of narcotic substances. In this respect, the applicant pointed out that pentobarbital of sodium was widely prescribed as a means of assisted suicide in Switzerland without this having any negative effects. 3. Submissions by the third parties 63. Dignitas considered that the requirements laid down in the Artico judgment of the Court (cited above) could only be fulfilled if pentobarbital of sodium was made available to persons wishing to end their life and if at the same time experienced personnel ensured its correct application. The third party finally submitted that the option of an assisted suicide without having to face the heavy risk inherent in commonly known suicide attempts was one of the best methods of suicide prevention. 64. AlfA considered that even a blanket ban on assisted suicide was not a disproportionate restriction on the right to privacy enshrined in Article 8 of the Convention as such law reflected the importance of the right to life. The restrictions existing in Germany were necessary in the overriding interest of protecting life until natural death. Doctors overwhelmingly concurred that palliative care improvements rendered assisted suicide unnecessary. 4. Assessment by the Court 65. The Court will start its examination under the procedural aspect of Article 8 of the Convention. The Court observes, at the outset, that both the Administrative Court and the Administrative Court of Appeal refused to examine the merits of the applicant’s motion on the ground that he could neither rely on his own rights under domestic law and under Article 8 of the Convention, nor did he have standing to pursue his late wife’s claim after her death. While the Cologne Administrative Court, in an obiter dictum, expressed the opinion that the Federal Institute’s refusal had been lawful and in compliance with Article 8 of the Convention (see paragraph 18, above), neither the Administrative Court of Appeal nor the Federal Constitutional Court examined the merits of the original motion. 66. The Court concludes that the administrative courts – notwithstanding an obiter dictum made by the first instance court – refused to examine the merits of the claim originally brought before the domestic authorities by B.K. 67. The Court further observes that the Government did not submit that the refusal to examine the merits of this case served any of the legitimate interests under paragraph 2 of Article 8. Neither can the Court find that the interference with the applicant’s right served any of the legitimate aims enumerated in that paragraph. 68. It follows that there has been a violation of the applicant’s right under Article 8 to see the merits of his motion examined by the courts. 69. With regard to the substantive aspect of the complaint under Article 8, the Court reiterates that the object and purpose underlying the Convention, as set out in Article 1, is that the rights and freedoms should be secured by the Contracting State within its jurisdiction. It is fundamental to the machinery of protection established by the Convention that the national systems themselves provide redress for breaches of its provisions, with the Court exercising a supervisory role subject to the principle of subsidiarity (compare, among other authorities, Z. and Others v. the United Kingdom, no. 29392/95, § 103, ECHR 2001-V and A. and Others v. the United Kingdom [GC], no. 3455/05, § 147, ECHR 2009). 70. The Court considers that this principle is even more pertinent if the complaint concerns a question where the State enjoys a significant margin of appreciation. Comparative research shows that the majority of Member States do not allow any form of assistance to suicide (compare paragraph 26, above and Haas, cited above, § 55). Only four States examined allowed medical practitioners to prescribe a lethal drug in order to enable a patient to end his or her life. It follows that the State Parties to the Convention are far from reaching a consensus in this respect, which points towards a considerable margin of appreciation enjoyed by the State in this context (also compare Haas, cited above, § 55). 71. Having regard to the principle of subsidiarity, the Court considers that it is primarily up to the domestic courts to examine the merits of the applicant’s claim. The Court has found above that the domestic authorities are under an obligation to examine the merits of the applicant’s claim (see paragraph 66, above). Accordingly, the Court decides to limit itself to examining the procedural aspect of Article 8 of the Convention within the framework of the instant complaint. 72. It follows from the above that the domestic courts’ refusal to examine the merits of the applicant’s motion violated the applicant’s right to respect for his private life under Article 8 in of the Convention. II. ALLEGED VIOLATION OF THE APPLICANT’S WIFE’S RIGHTS UNDER ARTICLE 8 OF THE CONVENTION 73. The Court recalls that, in its decision on the admissibility of the instant complaint, it had joined to the merits the question whether the applicant had the legal standing to complain about a violation of his late wife’s Convention rights. A. The Government’s submissions 74. Relying on the Court’s decision in the case of Sanles Sanles (cited above), the Government submitted that the asserted right to end one’s own life was of an eminently personal and non-transferable nature and that the applicant could therefore not assert this right in the name of his deceased wife. There was no reason to depart from this case law. The applicant’s participation in the domestic proceedings could not turn an eminently personal right, such as the alleged right to assistance in order to end one’s life, into a right that could be enforced by others. 75. But even if the asserted right were to be considered transferable, the applicant could not complain of a violation of his deceased wife’s right under Article 8 of the Convention as there was no indication that, in terms of degree and manner, the applicant’s suffering went beyond the burden that was inevitable when a spouse faced obstacles in organising his or her suicide. B. The applicant’s submissions 76. The applicant considered that the instant case fell to be distinguished from the Sanles Sanles case. In particular, he shared a much closer relationship with the deceased person than the sister-in-law who lodged the complaint in the above-mentioned case. Furthermore, the applicant, in the instant case, could claim a violation both of his deceased wife’s rights and of his own rights under Article 8. 77. It was decisive that the applicant and his wife had jointly submitted an administrative appeal against the Federal Institute’s decision. After his wife’s death, he had pursued the proceedings before the courts. It followed that he had a legitimate interest to pursue this case before the Court. The applicant further emphasised that there was a particular general interest in a ruling on the issues raised by the instant case. C. The Court’s assessment 78. The Court reiterates that in the case of Sanles Sanles (cited above) the applicant was the sister-in law of Mr S., a deceased tetraplegic who had brought an action in the Spanish courts requesting that his general practitioner be authorised to prescribe him the medication necessary to relieve him of the pain, anxiety and distress caused by his condition “without that act being considered under the criminal law to be assisting to suicide or to be an offence of any kind”. The Court considered that the right claimed by the applicant under Article 8 of the Convention, even assuming that such right existed, was of an eminently personal nature and belonged to the category of non-transferable rights. Consequently, the applicant could not rely on this right on behalf of Mr S. and the complaint was to be declared inadmissible as being incompatible ratione personae with the provisions of the Convention. 79. The Court confirmed the principle that Article 8 was of a non ‑ transferrable nature and could thus not be pursued by a close relative or other successor of the immediate victim in the cases of Thevenon v. France ((dec.), no. 2476/02, 28 June 2006) and Mitev (cited above). 80. The Court reiterates that “[while it] is not formally bound to follow its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous cases.” (see, among many other authorities, Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 74, ECHR 2002 ‑ VI, and Bayatyan v. Armenia [GC], no. 23459/03, § 98, 7 July 2011, and the case law cited in those judgments). 81. The Court does not find that it has been presented with sufficient reasons to depart from its established case-law as far as it was under consideration by the Court in the instant case. It follows that the applicant does not have the legal standing to rely on his wife’s rights under Article 8 of the Convention because of the non-transferable nature of these rights. The Court recalls however that it has concluded above that there has been a violation of the applicant’s own right to respect for his private life in the instant case (see paragraph 72 above). It follows that the applicant is not deprived of a protection under the Convention even if he is not allowed to rely on his wife’s Convention rights. 82. By virtue of Article 35 § 4 in fine of the Convention, which empowers it to “reject any application which it considers inadmissible ... at any stage of the proceedings”, the Court concludes that the applicant’s complaint about a violation of his late wife’s rights under Article 8 of the Convention is to be rejected under Article 34 as being incompatible ratione personae with the provisions of the Convention. III. ALLEGED VIOLATION OF THE APPLICANT’S RIGHT OF ACCESS TO A COURT 83. Relying on Article 13 in conjunction with Article 8 of the Convention, the applicant complained that the German courts had violated his right to an effective remedy when denying his right to challenge the Federal Institute’s refusal to grant his wife the requested authorisation. 84. In its decision on admissibility, the Court has further considered that this complaint might fall to be examined under the aspect of the applicant’s right of access to a court. However, in the light of its above finding regarding Article 8 of the Convention (see paragraph 72 above), the Court considers that it is not necessary to examine whether there has also been a violation of the applicant’s rights under Article 13 or under Article 6 § 1 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 85. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1. Non- pecuniary damage 86. The applicant claimed an overall sum of 5,000 euros (EUR) in respect of non-pecuniary damage for his wife’s pain and additional suffering due to the unwanted extension of her life and EUR 2,500 for his own suffering. 87. The Government considered that it had not been necessary for the applicant and his wife to subject themselves to additional suffering as B.K. would have had other means at her disposal to end her life. They furthermore pointed out that B.K.’s personal suffering ended at the time of her death. 88. The Court has found above that the applicant cannot rely on a violation of his late wife’s Convention rights. It follows that he cannot claim any compensation for non-pecuniary damage on her behalf. Conversely, the Court considers that the applicant must have sustained non-pecuniary damage due to the domestic courts’ refusal to examine the merits of his motion and, deciding on an equitable basis, awards the sum claimed for his own suffering in full. 2. Pecuniary damage 89. The applicant, relying on documentary evidence, further claimed an overall sum of EUR 5,847.27, comprising the lawyer’s fee for the administrative appeal against the Federal Institute’s decision (EUR 197.20), costs incurred for photocopying B.K.’s medical file (EUR 94.80) and the expenses incurred by B.K.’s transport to Switzerland and by her assisted suicide. 90. The Government submitted that there was no causal connection between the alleged violation of a Convention right and the damage claimed. 91. The Court considers, at the outset, that the costs of the administrative appeal proceedings fall to be considered below under the head of “costs and expenses”. With regard to the remainder of the applicant’s claim, the Court observes that B.K. committed suicide in Switzerland before the German courts had given any decision on the motion. Accordingly, the Court does not discern a link of causation between the domestic courts’ refusal to examine the merits of B.K.’s claim and the expenses incurred by B.K.’s transport to Switzerland and her suicide. Accordingly, the Court does not make any award in this respect. B. Costs and expenses 92. The applicant, who submitted documentary evidence in support of his claim, sought a total of EUR 46,490.91 for costs and expenses. This sum comprised EUR 6,539.05 for lawyers’ fees and expenses in the proceedings before the national courts, as well as EUR 39,951.86 for lawyers’ fees and expenses before this Court. He submitted that he had agreed to pay his lawyer EUR 300 per hour. 93. The Government expressed their doubts as to the necessity and appropriateness of the amount claimed. They further pointed out that the applicant had not submitted a written agreement on the hourly rate he claimed. 94. According to the Court’s case law, an applicant is entitled to the reimbursement of costs and expenses only as far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the claim for costs and expenses in the domestic proceedings in full. Including the costs of the administrative appeal proceedings (EUR 197.20, see paragraphs 89 and 91 above), the Court awards the applicant the amount of EUR 6,736.25 (including VAT) for the proceedings before the domestic courts. Further taking into account that the applicant’s complaints before the Court were only partially successful, the Court considers it reasonable to award the sum of EUR 20,000 (including VAT) for the proceedings before the Court. C. Default interest 95. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | Having regard, in particular, to the exceptionally close relationship between the applicant and his wife, and to his immediate involvement in the fulfilment of her wish to end her days, the Court considered that he could claim to have been directly affected by the refusal to grant her authorisation to acquire a lethal dose of the medication. It held that, in the present case, there had been a violation of the applicant’s procedural rights under Article 8 (right to respect for private and family life) of the Convention, in respect of the German courts’ refusal to examine the merits of his complaint. As further regards the substance of the applicant’s complaint, the Court considered that it was primarily up to the German courts to examine its merits, in particular in view of the fact that there was no consensus among the Member States of the Council of Europe as to the question of whether or not to allow any form of assisted suicide. |
977 | Radio communications | THE LAW ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 32. Relying on Article 10 of the Convention, the applicants complained about the search of their vehicle and their editorial office, the seizure of their radio equipment and their conviction. They submitted that these measures had constituted disproportionate interference with their freedom of expression, particularly in relation to their access to information as journalists. This Article reads as follows: “ 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. ” ... B. Merits 1. The parties ’ submissions 47. The applicants submitted that the measures taken against them had not been proportionate to the aims referred to by the respondent Government and that the right to impart information should prevail in their case. They further contended that the custodial sentences imposed on them had been excessive. 48. The Government observed that, even assuming that there had been interference with the right relied on by the applicants, it had pursued legitimate aims, namely the protection of national security and public safety and the prevention of disorder and crime, and had been proportionate to those aims. 2. The Court ’ s assessment (a) Whether there has been an interference “ prescribed by law ” and the legitimate aims pursued 49. The Court reiterates its doubts as to whether there was an interference with the applicants ’ freedom of expression in the present case. Even assuming that Article 10 was applicable, it observes that the search and seizure operation and the custodial sentences imposed on the applicants were prescribed by law, namely by Article 247 of the Code of Criminal Procedure and Articles 253, 617, 617 bis and 623 bis of the Criminal Code. 50. The Court considers that the measures in question pursued legitimate aims for the purposes of Article 10 § 2 of the Convention, in particular the protection of the rights of others and, concerning more specifically the interception of police communications, the protection of national security and the prevention of disorder and crime. (b) Whether the measures taken against the applicants were necessary in a democratic society ( i ) General principles 51. The general principles concerning the necessity of an interference with freedom of expression were summarised in Pentikäinen [ v. Finland [GC], no. 11882/10, §§ 87-91, ECHR 2015]. 52. In that judgment the Court reiterated that the protection afforded by Article 10 of the Convention to journalists was subject to the proviso that they acted in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism (see, mutatis mutandis, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999-III; Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999-I; Kasabova v. Bulgaria, no. 22385/03, §§ 61 and 63-68, 19 April 2011; and Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), nos. 3002/03 and 23676/03, § 42, ECHR 2009). 53. Furthermore, the concept of responsible journalism is not confined to the contents of information which is collected and/or disseminated by journalistic means. It also embraces, inter alia, the lawfulness of journalists ’ conduct, including their public interaction with the authorities when exercising journalistic functions (see Pentikäinen, cited above, § 90). 54. It should also be reiterated that “ notwithstanding the vital role played by the media in a democratic society, journalists cannot, in principle, be released from their duty to obey the ordinary criminal law on the basis that, as journalists, Article 10 affords them a cast-iron defence (see, among other authorities, mutatis mutandis, Stoll [ v. Switzerland [GC], no. 69698/01, § 102, ECHR 2007 ‑ V]; Bladet Tromsø and Stensaas, cited above, § 65; and Monnat v. Switzerland, no. 73604/01, § 66, ECHR 2006-X). In other words, a journalist cannot claim an exclusive immunity from criminal liability for the sole reason that, unlike other individuals exercising the right to freedom of expression, the offence in question was committed during the performance of his or her journalistic functions ” (see Pentikäinen, cited above, § 91). 55. Furthermore, all persons, including journalists, who exercise their freedom of expression undertake “ duties and responsibilities ”, the scope of which depends on their situation and the technical means they use (see, for example, Handyside v. the United Kingdom, 7 December 1976, § 49 in fine, Series A no. 24). Thus, notwithstanding the vital role played by the press in a democratic society, journalists cannot, in principle, be released from their duty to obey the ordinary criminal law on the basis that Article 10 affords them protection. Paragraph 2 of Article 10 does not, moreover, guarantee a wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern (see Stoll, cited above, § 102, and Pentikäinen, cited above, § 110). 56. Lastly, the Court reiterates that in assessing the necessity of a specific interference with the exercise of freedom of expression, it has regard to several criteria, namely the assessment of the competing interests, the applicants ’ conduct, the review carried out by the domestic courts and the proportionality of the penalty imposed ( see Stoll, cited above, § 153; Pentikäinen, cited above, §§ 112- 13; and Boris Erdtmann v. Germany ( dec. ), no. 56328/10, 5 January 2016). ( ii ) Application of these principles in the present case 57. It should be noted at the outset that, unlike other cases where journalists have applied to the Court under Article 10 of the Convention ( including, among many other examples, Stoll, cited above ), the present case does not concern the prohibition of a publication but the taking of measures against journalists for actions that, according to the Italian legal system, contravened criminal law. 58. In order to assess the necessity of these measures, the Court observes that the interests to be weighed up in the present case are, firstly, the public interest in the proper functioning of the law-enforcement agencies, and secondly, the interest of readers in receiving information. 59. Although both these interests may be regarded as public in nature ( see, mutatis mutandis, Stoll, cited above, §§ 115-16), it should nevertheless be pointed out that the public interest in knowing about local news items cannot carry the same weight as the public interest in obtaining information about a matter of general and historical concern or of considerable media interest, subjects which the Court has already had occasion to examine. 60. In this connection, it notes that the Stoll case ( cited above ) concerned the dissemination of information about the compensation due to Holocaust victims for unclaimed assets deposited in Swiss bank accounts. The Pentikäinen case ( cited above ) concerned the dissemination of information about a demonstration taking place on an exceptional scale in national terms in protest against an Asia-Europe meeting. 61. In the present case, the Court observes that the applicants were not prohibited from bringing news items to the public ’ s attention. Their conviction was based solely on the possession and use of radio equipment in order to obtain relevant information more rapidly by intercepting police communications, which were confidential under domestic law. The limits of the prohibition are an important consideration in the assessment of its proportionality. 62. In this context, the Court considers that the decisions of the Milan Court of Appeal and the Court of Cassation to the effect that communications between law-enforcement officers were confidential and that the applicants ’ actions were therefore to be classified as criminal conduct, were properly reasoned. The decisions, relying on settled case-law of the Court of Cassation, accorded substantial weight to the protection of national security and the prevention of disorder and crime. 63. The Court further notes that, as it has previously held ( see Stoll, cited above, § 153, and Pentikäinen, cited above, §§ 112 - 13), the severity of the penalty imposed on the applicants is also a factor to be taken into consideration in assessing the proportionality of the interference complained of. In the present case, the penalty consisted of custodial sentences of one year and three months for the first two applicants and six months for the third, together with the seizure of their radio equipment. 64. The Court reiterates that the concept of responsible journalism requires that whenever a journalist ’ s conduct flouts the duty to abide by ordinary criminal law, the journalist has to be aware that he or she is liable to face legal sanctions, including of a criminal character (see Pentikäinen, cited above, § 110). 65. In the present case, while seeking to obtain information for publication in a local newspaper, the applicants acted in a manner that, according to domestic law and the settled approach of the Court of Cassation, contravened criminal law, which lays down a general prohibition on a person ’ s interception of any conversations not intended for him or her, including those between law-enforcement officers. The applicants ’ actions, moreover, involved a technique which they used routinely in the course of their activities as journalists (see paragraph 7 above). 66. Lastly, the Court notes that in its judgment of 15 May 2007 the Milan Court of Appeal suspended the applicants ’ sentences and that there is no evidence in the case file to show that they served them. Accordingly, the penalties imposed on the applicants do not appear disproportionate. 67. The courts made an appropriate distinction between the applicants ’ duty to abide by domestic law and their pursuit of their activities as journalists, which was not otherwise restricted. 68. Having regard to the above factors, the Court concludes that there has been no violation of Article 10 of the Convention in the present case. | The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention. Stressing the notion of responsible journalism and noting that the decisions of the domestic courts had been duly reasoned and had focused primarily on the need to protect national security and prevent crime and disorder, the Court found in particular that the Italian courts had made an appropriate distinction between on the one hand the duty of the three journalists to comply with domestic law, which prohibited in general terms the interception by any persons of communications not addressed to them, including those of the law-enforcement agencies, and on the other hand the pursuit of their journalistic activities, which had not been restricted per se. The Court also noted that the penalties ordered by the domestic courts, consisting in the seizure of the radio equipment and the imposition of custodial sentences, had not been disproportionate, as the sentences of the three journalists had been suspended and the authorities had not prohibited them from bringing news items to the public’s attention. |
526 | Attacks on Roma villages and destruction of houses and possessions | II. RELEVANT DOMESTIC LAW AND PRACTICE Code of Civil Procedure 79. Article 244 of the Code of Civil Procedure, as amended by Government Order no. 59/2001, provides that a court examining a civil action can suspend the proceedings: “...2. if criminal proceedings have been instituted in relation to a crime, the determination of which is decisive for the outcome of the civil dispute.” Code of Criminal Procedure Article 10 (c) “Criminal proceedings cannot be instituted and, if instituted, cannot be continued if ... c) the act was not committed by the defendant; ... ” Article 15 “The person who has suffered civil damage can join the criminal proceedings... He or she can do so either during the criminal investigation... or before the court...” Article 22 “The findings contained in a final judgment of the criminal court concerning the issue whether the act in question has been committed, and the identification of the perpetrator and his guilt, are binding on the civil court when it examines the civil consequences of the criminal act.” Article 343 § 3 “In case of a conviction or an acquittal, or the termination of the criminal trial, the court shall deliver a judgment in which it also decides on the civil action. Civil damages cannot be awarded if an acquittal was decided on the ground that the impugned act did not exist or was not committed by the accused.” Civil Code 80. Articles 999 and 1000 of the Civil Code provide that any person who has suffered damage can seek redress by bringing a civil action against the person who has negligently caused it. 81. Article 1003 of the Civil Code provides that, where more than one person has committed an intentional tort, they shall be jointly and severally liable. Case law of the domestic courts 82. The Government submitted a number of cases in which domestic courts had decided that the prosecutor's decision, based on Article 10 (b) of the Code of Criminal Procedure, not to open a criminal investigation on account of the absence of intention – as an element of the offence – did not prevent the civil courts from examining a civil claim arising out of the commission of the act by the person in question. 83. The Government submitted only one case, dating back to 1972, in which the Supreme Court had decided that the prosecutor's decision, based on Article 10 (a) and (c) of the Code of Criminal Procedure, not to open a criminal investigation having regard to the fact that the acts were not committed at all or were not committed by the defendant, should not prevent civil courts from examining a civil claim arising out of the commission of the same act by the person in question. The Supreme Court's decision dealt solely with the competence issue and did not specify whether there was a legal provision offering a chance of success for such an action. Legal doctrine 84. The common view of the criminal-procedure specialists is that a civil court cannot examine a civil action filed against a person against whom the prosecutor has refused to open a criminal investigation on the grounds provided for in Article 10 (a) and (c) of the Code of Criminal Procedure that the acts were not committed at all or were not committed by the defendant (see Criminal Procedural Law – General Part, Gheorghe Nistoreanu and Others, p. 72, Bucharest 1994, and A Treaty on Criminal Procedural Law – General Part, Nicolae Volonciu, pp. 238-39, Bucharest 1996). 85. The common view of the civil-procedure specialists and of some criminal-procedure specialists is that the prosecutor's decision refusing to open a criminal investigation on the grounds mentioned in the previous paragraph, does not prevent a civil court from examining a civil action brought against the defendant. In such a case, civil courts are entitled to decide whether the acts were committed and by whom, but have to rely on the findings of the prosecutor set out in the decision refusing to open a criminal investigation (see The Civil Action and the Criminal Trial, Anastasiu Crişu, RRD no. 4/1997, and Criminal Procedural Law, Ion Neagu, p. 209, Bucharest 1988). THE LAW I. ALLEGED VIOLATIONS OF ARTICLES 3 AND 8 OF THE CONVENTION 86. Article 3 of the Convention provides as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 87. Article 8 of the Convention provides, insofar as relevant, as follows: “1. Everyone has the right to respect for his private and family life, [and] his home... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of ... public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Arguments of the parties 1. The applicants 88. The applicants complained that, after the destruction of their houses, they could no longer enjoy the use of their homes and had to live in very poor, cramped conditions, in violation of Articles 3 and 8 of the Convention. 89. The applicants claimed that State officials had been involved in the destruction of their homes, including police officers and a deputy mayor, the latter having been convicted of a criminal offence in the case. They pointed out that the State had positive obligations under Article 8, and relied in that connection on a number of cases, for instance Burton v. the United Kingdom (no. 31600/96, Commission decision of 10 September 1996), Marzari v. Italy (decision, no. 36448/97, 4 May 1999) and Fadele v. the United Kingdom (no. 13078/87, Commission decision of 12 February 1990). The applicants alleged that the State also had positive obligations under Article 3, and claimed that it was incumbent on the Romanian Government to provide sufficient compensation to restore the applicants to their previous living conditions. Moreover, local officials were responsible for the management or mismanagement of the reconstruction funds and efforts, and had made decisions not to rebuild particular homes in retaliation for perceived “behavioural problems”. The applicants also claimed that the houses rebuilt by the State had been badly constructed and were largely uninhabitable. 90. They further submitted that the Government's failure to respect their positive obligations had resulted in families with small children and elderly members being forced to live in cellars, hen-houses, stables, burned-out shells, or to move in with friends and relatives in such overcrowded conditions that illness frequently occurred. 2. The Government 91. The Government denied that the State authorities bore any responsibility for the destruction of the applicants' houses. Therefore, the State had only positive obligations under Article 8, obligations which had been fulfilled in this case by granting aid to the applicants to rebuild their homes. In any event, the Government considered that there was no obligation under the Convention to provide a home to persons who were in difficulties. They relied in this connection on the cases of Buckley v. the United Kingdom (judgment of 25 September 1996, Reports of Judgments and Decisions 1996 ‑ IV), and Chapman v. the United Kingdom ([GC], no. 27238/95, § 99, ECHR 2001 ‑ I). 92. The Government submitted that the State's positive obligations under Article 3 had also been fulfilled in this case by granting aid to the applicants to rebuild their homes. B. The Court's assessment 1. General principles 93. The Court has consistently held that, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by public authorities, it does not merely compel the State to abstain from such interference. There may, in addition to this primary negative undertaking, be positive obligations inherent in an effective respect for private or family life and the home. These obligations may involve the adoption of measures designed to secure respect for these rights even in the sphere of relations between individuals (see X and Y. v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p. 11, § 23). 94. In addition, the acquiescence or connivance of the authorities of a Contracting State in the acts of private individuals which violate the Convention rights of other individuals within its jurisdiction may engage the State's responsibility under the Convention (see Cyprus v. Turkey [GC], no. 25781/94, ECHR 2001-IV, § 81). A State may also be held responsible even where its agents are acting ultra vires or contrary to instructions (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 64, § 159). 95. A State's responsibility may be engaged because of acts which have sufficiently direct repercussions on the rights guaranteed by the Convention. In determining whether this responsibility is effectively engaged, regard must be had to the subsequent behaviour of that State (see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 317, 382, 384-85 and 393, ECHR 2004-...). 96. Further, the Court has not excluded the possibility that the State's positive obligation under Article 8 to safeguard the individual's physical integrity may extend to questions relating to the effectiveness of a criminal investigation (see Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998-VIII, p. 3164, § 128). 97. Whatever analytical approach is adopted – positive duty or interference – the applicable principles regarding justification under Article 8 § 2 are broadly similar (see Powell and Rayner v. the United Kingdom, judgment of 21 February 1990, Series A no. 172). In both contexts, regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole. In both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 98, ECHR 2003-VIII; Rees v. the United Kingdom, judgment of 17 October 1986, Series A no. 106, p. 15, § 37, and Leander v. Sweden, judgment of 26 March 1987, Series A no. 116, p. 25, § 59). Furthermore, even in relation to the positive obligations flowing from Article 8 § 1, in striking the required balance, the aims mentioned in Article 8 § 2 may be of relevance (see Rees, cited above, loc. cit .; see also Lopez Ostra v. Spain, judgment of 9 December 1994, Series A no. 303-C, p. 54, § 51). 98. The obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals (see M.C. v. Bulgaria, no. 39272/98, §§ 149-50, ECHR 2004-...; A. v. the United Kingdom, judgment of 23 September 1998, Reports 1998-VI, p. 2699, § 22; Z. and Others v. the United Kingdom [GC], no. 29392/95, §§ 73-75, ECHR 2001-V, and E. and Others v. the United Kingdom, no. 33218/96, 26 November 2002). 99. Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim's behaviour (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). 100. According to the Court's case law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative. It depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 162). 101. The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering. It has deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see, for example, Kudla v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI). In considering whether a particular form of treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (see, for example, Raninen v. Finland, judgment of 16 December 1997, Reports 1997-VIII, pp. 2821-22, § 55). However, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 (see, for example, Peers v. Greece, no. 28524/95, § 74, ECHR 2001-III). 2. Application of the above principles 102. The Court notes that the actual destruction of the applicants' houses and belongings, as well as their forceful expulsion from the village, took place in September 1993, before the ratification of the Convention by Romania in June 1994. It cannot therefore examine them (see Moldovan and Others v. Romania decision, nos. 41138/98 and 64320/01 joined, 13 March 2001). 103. It is clear from the evidence submitted by the applicants, and the civil court judgments, that police officers were involved in the organised action of burning the houses and later, also after June 1994, tried to cover up the incident (see paragraphs 39, 40, 48, 50, 52 and 53 above). Following this incident, having been hounded from their village and homes, the applicants had to live, and some of them still live, in crowded and improper conditions – cellars, hen-houses, stables, etc. - and frequently changed address, moving in with friends or family in extremely overcrowded conditions. 104. Therefore, having regard to the direct repercussions of the acts of State agents on the applicants' rights, the Court considers that the Government's responsibility is engaged as regards the applicants' subsequent living conditions. 105. In the present case, there is no doubt that the question of the applicants' living conditions falls within the scope of their right to respect for family and private life, as well as their homes. Article 8 is thus clearly applicable to these complaints. 106. The Court's task is therefore to determine whether the national authorities took adequate steps to put a stop to breaches of the applicants' rights. 107. In this context, the Court notes the following: (a) despite the involvement of State agents in the burning of the applicants' houses, the Public Prosecutors' Office failed to institute criminal proceedings against them, and thus prevented the domestic courts from establishing the responsibility of these officials and punishing them; (b) the domestic courts refused for many years to award pecuniary damages for the destruction of the applicants' belongings and furniture and justified this refusal by making allegations as to the applicants' good faith (see paragraph 71); (c) it is only in the judgment delivered on 12 May 2003, ten years after the events, by the Mureş Regional Court, that compensation was awarded for the destroyed houses, although not for the loss of belongings; (d) in the judgment in the criminal case against the accused villagers, discriminatory remarks about the applicants' Roma origin were made (see paragraph 44); (e) the applicants' requests for non-pecuniary damages were also rejected at first instance, the civil courts considering that the events - the burning of their houses and the killing of some of their family members - were not of a nature to create any moral damage (see paragraphs 72 and 76); (f) when dealing with a request from the applicant Floarea Maria Zoltan for a maintenance allowance for her minor child, whose father was burnt alive during the events, the Târgu-Mureş Regional Court awarded in its judgment of 12 May 2003, which became final on 25 February 2005, an amount equivalent to a quarter of the statutory minimum wage, and decided to halve this amount on the ground that the deceased victims had provoked the crimes; (g) three houses have not to date been rebuilt and, as can be seen from the photographs submitted by the applicants, the houses rebuilt by the authorities are uninhabitable, with large gaps between the windows and the walls and incomplete roofs; and (h) most of the applicants have not to date returned to their village, and live scattered throughout Romania and Europe. 108. In the Court's view, the above elements taken together disclose a general attitude of the authorities – prosecutors, criminal and civil courts, Government and local authorities – which perpetuated the applicants' feelings of insecurity after June 1994 and constituted in itself a hindrance of the applicants' rights to respect for their private and family life and their homes (see, mutatis mutandis, Akdivar v. Turkey, judgment of 16 September 1996, Reports 1996-IV, p. 1215, § 88). 109. The Court concludes that the above hindrance and the repeated failure of the authorities to put a stop to breaches of the applicants' rights, amount to a serious violation of Article 8 of the Convention of a continuing nature. 110. It furthermore considers that the applicants' living conditions in the last ten years, in particular the severely overcrowded and unsanitary environment and its detrimental effect on the applicants' health and well-being, combined with the length of the period during which the applicants have had to live in such conditions and the general attitude of the authorities, must have caused them considerable mental suffering, thus diminishing their human dignity and arousing in them such feelings as to cause humiliation and debasement. 111. In addition, the remarks concerning the applicants' honesty and way of life made by some authorities dealing with the applicants' grievances (see the decisions of the civil and criminal courts and remarks made by the mayor of Cheţani, paragraphs 44, 66 and 71 above) appear to be, in the absence of any substantiation on behalf of those authorities, purely discriminatory. In this connection the Court reiterates that discrimination based on race can of itself amount to degrading treatment within the meaning of Article 3 of the Convention (see East African Asians v. the United Kingdom, Commission Report, 14 December 1973, DR 78, p. 5, at p. 62). Such remarks should therefore be taken into account as an aggravating factor in the examination of the applicants' complaint under Article 3 of the Convention. 112. The Court considers that the above findings are not affected by the conclusions reached in the judgment of 24 February 2004 of the Târgu-Mureş Court of Appeal, which became final on 25 February 2005, since the Court notes that the said judgment neither acknowledged nor afforded redress for the breach of the Convention (see, for example, Amuur v. France, judgment of 25 June 1996, Reports 1996-III, p. 846, § 36, and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI). 113. In the light of the above, the Court finds that the applicants' living conditions and the racial discrimination to which they have been publicly subjected by the way in which their grievances were dealt with by the various authorities, constitute an interference with their human dignity which, in the special circumstances of this case, amounted to “degrading treatment” within the meaning of Article 3 of the Convention. 114. Accordingly, there has also been a violation of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 115. The applicants complained that the failure of the authorities to carry out an adequate criminal investigation, culminating in formal charges and the conviction of all individuals responsible, had denied them access to court for a civil action in damages against the State regarding the misconduct of the police officers concerned. Several applicants also complained that, owing to the length of the criminal proceedings, the civil proceedings had not yet ended. They relied on Article 6 § 1 of the Convention, the relevant part of which provides as follows: “In the determination of his civil rights ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” A. As to the right of access to court 116. The applicants contended that, having regard to the fact that the decision not to prosecute was based on the finding that the accused had not committed the acts in question (Article 10 (c) of the Code of Criminal Procedure), they could not bring a civil action against the police. Such a finding precluded such proceedings, which presuppose that the purported defendant had committed the impugned act. The applicants agreed that the situation would have been different had the prosecutor based his decision not to prosecute on the police officers' lack of guilt. Moreover, under Article 1003 of the Civil Code, all civil defendants had to be sued in the same proceedings, being jointly liable. Therefore, the applicants could not have sued the police officers separately from the civilians. When filing their criminal complaint, the applicants had joined their civil claim to the criminal proceedings against all potential defendants, including the police officers. Despite suggestions in the criminal court's statements that many more than the indicted defendants were guilty, the civil court had only assessed the damage caused by the convicted defendants or their heirs. It had done so because, under Article 22 of the Code of Criminal Procedure, the criminal court's findings as to the existence of acts, the identity of the perpetrator and their guilt was binding on the civil court. Thus, the civil court could not have contradicted the criminal court's findings as to who the guilty parties were. Finally, the applicants considered that the present situation differed from that in the case of Assenov and Others v. Bulgaria (judgment of 28 October 1998, Reports 1998-VIII). In that case the police could have been sued in a civil court on the basis of the Law on State Responsibility for Damage, the action being exempted from the payment of court costs. Romanian law did not have provisions enabling a person to sue a police officer in a civil court for alleged ill-treatment. Even assuming that the applicants could have filed a civil action against the police officers, because of their indigence they would not have been able to pay the court costs – around 10% of the damages requested - which would have resulted in the court refusing to examine the merits of the claim. 117. The Government submitted that, despite the prosecutor's decision not to pursue the police officers allegedly involved in the riots, the applicants could have brought a civil action against the police based on Articles 999 and 1000 of the Civil Code if the police had been shown to have caused damage for which they were responsible. Moreover, Article 22 of the Code of Criminal Procedure did not prevent the applicants from bringing such a civil action. They pointed out that the right of access to a court did not include a right to bring criminal proceedings against a third person or to see that person convicted. They relied in that respect on the aforementioned Assenov case. 118. The Court recalls that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. The right of access to a court in civil matters constitutes one aspect of the “right to a court” embodied in Article 6 § 1 (see, amongst many authorities, Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, p. 2285, § 92; Waite and Kennedy v. Germany [GC], no. 26083/94, § 50, ECHR 1999-I; Golder v. the United Kingdom, judgment of 21 February 1975, Series A, no. 18, p. 18, § 36.) This provision undoubtedly applies to a civil claim for compensation in cases where State agents were allegedly involved in treatment contrary to Article 3, including the destruction of homes and property. The requirement of access to court must be entrenched not only in law but also in practice, failing which the remedy lacks the requisite accessibility and effectiveness (see, mutatis mutandis, Akdivar and Others, cited above, p. 1210, § 66). This is particularly true for the right of access to courts in view of the prominent place held in a democratic society by the right to a fair hearing (see, for example, Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, pp. 12-13, § 24). Furthermore, only an institution that has full jurisdiction, including the power to quash in all respects, on questions of fact and law, the challenged decision, merits the description “tribunal” within the meaning of Article 6 § 1 (see, for example, Umlauft v. Austria, judgment of 23 October 1995, Series A no. 328-B, pp. 39-40, §§ 37-39). In assessing the existence of an effective remedy in a case of destruction of houses, the Court must bear in mind the insecurity and vulnerability of the applicants' position and the fact that they must have become dependent on the authorities in respect of their basic needs after the events (see Akdivar, cited above, p. 1213, § 73). 119. The Government maintained that the applicants should have instituted proceedings against the police officers allegedly involved in the events before the civil courts, which could have made a determination on the merits of the compensation claim irrespective of the outcome of the domestic criminal investigation. That hypothesis has not however been tested, since the applicants have not at any stage pursued such a claim for compensation against the police officers. As regards the domestic case law submitted by the parties, the Court observes that in none of those cases was it held that a civil court would not be bound by the decision of the prosecuting authorities terminating a criminal investigation on the ground that the acts had not been committed by the accused. This is also true in respect of the case dating back to 1972 submitted by the Government (paragraph 83 above), in which the only issue was whether a civil court was competent to examine a civil claim despite the discontinuation of criminal proceedings. In that case, the Supreme Court did not rule on the question whether the civil court was bound by the criminal authorities' findings. 120. Consequently, the Court finds that it has not been shown that there was a possibility to institute an effective civil action for damages against the police officers in the particular circumstances of the present case. The Court is not, therefore, able to determine whether the domestic courts would have been able to adjudicate on the applicants' claims had they, for example, brought a tort action against individual members of the police. 121. However, it is to be observed that the applicants lodged a civil action against the civilians who had been found guilty by the criminal court, claiming compensation in respect of their living conditions following the destruction of their homes. This claim was successful and effective, the applicants being granted compensation (paragraph 77 above). In these circumstances, the Court considers that the applicants cannot claim an additional right to a separate civil action against the police officers allegedly involved in the same incident. 122. In the light of these considerations, the Court concludes that there has been no violation of Article 6 § 1 as regards the applicants' effective access to a tribunal. B. As to the length of the proceedings 123. The applicants claimed that, despite the numerous potential defendants and witnesses involved, the case was not very complex. The facts were relatively straightforward, the applicants having been able to provide the police with the names of many of the people involved. The case did not present any novel or complex legal issues. The Romanian authorities had delayed the arrest of the accused from September 1993 until January 1997, without providing any credible reason. The applicants refuted the Government's allegation that the delay had resulted from their non-payment of the expert's fees. They pointed out that they were impoverished, living in abysmal conditions and unable to pay for expert assistance. If their financial inability to pay such fees resulted in the loss of their right to a determination of their civil claims, that in itself would constitute a violation of Article 6 § 1 of the Convention. Moreover, the civil claims involved very high stakes for the applicants –their efforts to rebuild shattered homes and lives in order to provide decent living conditions for their children and other family members. They relied on a considerable body of case law of the Court, including the cases of Torri v. Italy (judgment of 1 July 1997, Reports of Judgments and Decisions 1997 ‑ IV), Corigliano v. Italy (judgment of 10 December 1982, Series A no. 57), Bunkate v. the Netherlands (judgment of 26 May 1993, Series A no. 248 ‑ B), and De Micheli v. Italy (judgment of 26 February 1993, Series A no. 257-D). 124. The Government considered that the case was complex, given that it concerned crimes committed by many villagers during a whole night, and that an expert assessment of the value of the damaged property was needed. They alleged that the applicants were partly responsible for the length of the civil proceedings, as for many weeks they had refused to pay the expert appointed by the court. 125. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 126. Criminal proceedings are to be taken into account in calculating the relevant period where the result of such proceedings is capable of affecting the outcome of the civil dispute before the ordinary courts (see Rezette v. Luxembourg, no. 73983/01, § 32, 13 July 2004). 127. While the Court's jurisdiction ratione temporis covers only the period after the entry into force of the Convention with respect to Romania on 20 June 1994, it will take into account the state of proceedings existing on the material date (see, among other authorities, mutatis mutandis, Yağci and Sargin v. Turkey, judgment of 8 June 1995, Series A no. 319-A, p. 16, § 40). 128. The period under consideration began in September 1993, when the applicants lodged their complaints and an application to join the proceedings as a civil party, and ended on 25 February 2005. They lasted more than eleven years, of which some nine months were prior to the entry into force of the Convention in respect of Romania. Three judicial instances have dealt with this aspect of the case. 129. The Court notes that five years elapsed before the civil case was severed from the criminal complaints on 23 June 1998 (see paragraph 43) in order to accelerate the procedure. However, it was only on 12 January 2001 that a first judgment was delivered, that is, more than seven years after the civil claim was lodged. That judgment was quashed on 17 October 2001 because of a substantial number of procedural errors (see paragraph 75 above). It was not until two years later, in May 2003, that the Regional Court was able to deliver another judgment on the merits. On 24 February 2004 the Court of Appeal amended the lower court's ruling in part. The Supreme Court upheld, in its final judgment of 25 February 2005, the judgment of the Court of Appeal. While the Court is aware of the difficulty of organising proceedings with more than thirty defendants and civil parties, and which required experts to assess the losses incurred by the victims, it notes that the delays were not due to the time taken to obtain expert reports, since the main report had been ready in 1999. The delays were rather due to the various errors committed by the domestic courts. 130. Having regard to the criteria established in its case law for the assessment of the reasonableness of the length of proceedings and the particular circumstances of the case, the Court finds that the length of the civil proceedings instituted by the applicants failed to satisfy the reasonable-time requirement of Article 6 § 1 of the Convention. 131. Consequently, there has been a violation of Article 6 § 1 in this respect also. V. ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH ARTICLES 6 AND 8 OF THE CONVENTION 132. The applicants submitted that, on account of their ethnicity, they were victims of discrimination by judicial bodies and officials, contrary to Article 14 of the Convention, which provides as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 133. They submitted that the remarks made by the Târgu-Mureş County Court in its judgment of 17 July 1998 contained clear anti-Roma sentiment, and that the refusal of the authorities to improve their living conditions after the events of September 1993 was an expression of the hostility against the Roma population. They contended that local officials, in particular the mayor of Hădăreni in his information note concerning the situation of the Gypsy houses to be rebuilt, had demonstrated an obvious bias against the Roma families, in violation of Article 8 combined with Article 14. Moreover, the remarks made by the Târgu-Mureş County Court in its judgment of 17 July 1998, although made in the course of the criminal proceedings after the severance of the civil and criminal cases, could have had consequences for the outcome of the civil case, having regard to the close relation in Romanian law between the criminal proceedings and the civil claims. 134. Furthermore, the civil court's abrupt dismissal, in the judgment of 12 January 2001, of any claims relating to goods or furnishings, its comments characterising the applicants as liars and tax evaders, its refusal to award non-pecuniary damages for the destruction of homes, and the very low, inappropriate award of damages, constituted discrimination in the enjoyment of the applicants' right to a fair hearing of their civil claims, in violation of Article 6 combined with Article 14. 135. The Government submitted that, in the absence of a violation of Article 8, the applicants could not allege a violation of Article 14. In any event, the State authorities had provided help to the Roma community in Hădăreni on the same terms as that provided to other categories of the population, for instance those affected by natural disasters. No discrimination had therefore been established. Insofar as the applicants relied on Article 6 combined with Article 14, the Government admitted that the impugned terms had been used, but contended that this had happened during criminal proceedings in which the applicants had not been the accused, but civil parties. Article 6 did not therefore apply to those proceedings and Article 14 could not be relied on. 136. The Court reiterates that Article 14 only complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to the enjoyment of the rights and freedoms safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to that extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, among many other authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, p. 35, § 71, and Karlheinz Schmidt v. Germany, judgment of 18 July 1994, Series A no. 291-B, p. 32, § 22). 137. As to the scope of the guarantee provided under Article 14, according to established case law, a difference in treatment is discriminatory if it has no objective and reasonable justification, i.e. if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. Moreover, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see, for example, the Gaygusuz v. Austria judgment of 16 September 1996, Reports 1996-IV, p. 1142, § 42, and Fretté v. France, no. 36515/97, § 34, ECHR 2002-I). 138. The Court finds that the facts of the instant case fall within the scope of Articles 6 and 8 of the Convention (see paragraphs 105, 109, 126 and 131 above) and that, accordingly, Article 14 is applicable. 139. It notes first that the attacks were directed against the applicants because of their Roma origin. The Court is not competent ratione temporis to examine under the Convention the actual burning of the applicants' houses and the killing of some of their relatives. It observes, however, that the applicants' Roma ethnicity appears to have been decisive for the length and the result of the domestic proceedings, after the entry into force of the Convention in respect of Romania. It further notes the repeated discriminatory remarks made by the authorities throughout the whole case determining the applicants' rights under Article 8, when rejecting claims for goods or furnishings, and their blank refusal until 2004 to award non-pecuniary damages for the destruction of the family homes. As to the judgment of 24 February 2004, confirmed by the Court of Cassation on 25 February 2005, the decision to reduce the non-pecuniary damages granted was motivated by remarks related directly to the applicants' ethnic specificity. 140. The Court observes that the Government advanced no justification for this difference in treatment of the applicants. It concludes accordingly that there has been a violation of Article 14 of the Convention taken in conjunction with Articles 6 and 8. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION A. Pecuniary and non-pecuniary damage 141. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 142. The applicants claimed pecuniary damages in respect of the loss of their houses and household property. They conceded that some of the houses had been rebuilt by the Government, but the constructions were defective and most of them had in any event only been partially rebuilt. Their claims in respect of the loss of the houses were based on the findings of an expert appointed by the Târgu-Mureş Regional Court. They stressed that in most cases they had no independent proof as to the value of their household goods, as any written proof would have been destroyed in the fire. They insisted that, despite their level of poverty, none of the houses had been empty, and submitted, relying on the aforementioned Akdivar judgment, that if their declaration of goods and proposed valuations were not accepted, the Court could assess the value of simple furnishings and other household goods on an equitable basis. Some of the applicants claimed the costs of alternative accommodation following their relocation after the destruction of their houses. 143. In particular, the applicants claimed the following sums: Iulius Moldovan claimed 40,000 euros (EUR) for the destruction of his house and EUR 55,000 for the destruction of his household goods and other assets, including the proceeds from the sale of 400 sheep which had burnt during the fire; Melenuţa Moldovan EUR 2,133 for the destruction of her household goods; Maria Moldovan EUR 947 for the destruction of her house and belongings; Otilia Rostaş EUR 2,573 for the destruction of her belongings; Petru (Gruia) Lăcătuş EUR 10,738 for the destruction of his house and belongings; Maria Floarea Zoltan EUR 2,240 for the destruction of her belongings, and Petru (Dîgăla) Lăcătuş EUR 5,530 for the destruction of his house and household goods. 144. The applicants further contended that the frustration and helplessness suffered by them with respect to the non-indictment of the police, the lengthy delays in the trial of their civil claims, the racist attitudes of the judges, the insecurity of their housing situation, and the conditions under which they were living – and still lived in some cases – required an award of non-pecuniary damages in order to achieve just satisfaction. In their representative's letter of 29 August 2003, they claimed under this head amounts ranging between EUR 30,000 and EUR 50,000 per applicant, depending on their individual situations: the applicants whose homes had been rebuilt requested EUR 30,000 each, whereas the applicants whose homes had not been rebuilt, that is, Petru (Dîgăla) Lăcătuş and Maria Floarea Zoltan, requested EUR 50,000 each. 145. On 29 January 2003 Mrs Maria Floarea Zoltan requested EUR 1,000,000 for non-pecuniary damage. She pointed out that, after the events in September 2003, she and her son were chased away from Hădăreni and all attempts to return there had failed. Moreover, she had suffered humiliation and harassment by the secret police, who had been observing her, and as a result of a massive media campaign in Romania describing the Roma population as criminals. Consequently, she and her son had gone to the United Kingdom in 2001, where they had obtained political asylum. She and her son were currently undergoing treatment at the Medical Foundation for the Victims of Torture, among other institutions, for the psychological disturbance they had suffered following these events. In a letter sent to the Court on 19 July 2004, Mrs Otilia Rostaş claimed EUR 120,000 in damages and Mrs Melenuţa Moldovan claimed EUR 100,000. Mr Iulius Moldovan requested, in a letter dated 6 July 2004, EUR 196,875 for the destruction of his house and household goods, having regard to the devaluation of the Romanian national currency in the last ten years. He also requested EUR 300,000 in respect of non-pecuniary damage. 146. In short, taking all the heads of pecuniary and non-pecuniary damage together, the applicants claimed the following sums: Iulius Moldovan EUR 496,875; Melenuţa Moldovan, EUR 100,000; Maria Moldovan EUR 30,947; Otilia Rostaş, EUR 120,000; Petru (Gruia) Lăcătuş, EUR 40,738; Maria Floarea Zoltan, EUR 1,002,240 and Petru (Dîgăla) Lăcătuş EUR 55,530. 147. The applicants made no claims for costs and expenses. 148. The Government submitted that they could not be held responsible for the alleged violations and that, in any event, they had granted money for the reconstruction of the applicants' homes. In October 2003 they had submitted a report prepared at their request by a local expert. According to the report, the applicants' living conditions after the reconstruction of some of the houses were either “good” or “satisfactory”. It was considered, however, that further works were needed in order to ensure that these buildings were habitable: masonry and work on the electricity, ceiling and drainpipes, the value of which was estimated at EUR 1,000. In any event, they considered the sums claimed to be excessive and unsubstantiated. 149. The Court reiterates its findings that: - the applicants were subject to degrading treatment within the meaning of Article 3 of the Convention; - there was an interference with their right to respect for their private and family lives and their homes in violation of Article 8; - the length of the civil proceedings failed to satisfy the reasonable-time requirement of Article 6 § 1; and - the applicants were discriminated against within the meaning of Article 14 on the ground of their ethnic origin in the exercise of their rights under Article 8. All these breaches of the Convention had occurred because of the applicants' living conditions following the interference by the authorities after June 1994 with the applicants' rights and their repeated failure to put a stop to the breaches. 150. The Court considers that there is a causal link between the violations found and the pecuniary damage claimed, since the Government were found to be responsible for the failure to put an end to the breaches of the applicants' rights that generated the unacceptable living conditions. It notes that the expert reports submitted by the parties are inaccurate and inconsistent. It also takes the view that, as a result of the violations found, the applicants undeniably suffered non-pecuniary damage which cannot be made good merely by the finding of a violation. 151. Consequently, regard being had to the seriousness of the violations of the Convention of which the applicants were victims, to the amounts already granted at the domestic level by the final judgment of 25 February 2005, and ruling on an equitable basis, as required by Article 41 of the Convention, the Court awards them the following sums, plus any amount that may be chargeable in tax: (a) EUR 60,000 to Iulius Moldovan for pecuniary and non-pecuniary damage; (b) EUR 13,000 to Melenuţa Moldovan for pecuniary and non-pecuniary damage; (c) EUR 11,000 to Maria Moldovan for pecuniary and non-pecuniary damage; (d) EUR 15,000 to Otilia Rostaş for pecuniary and non-pecuniary damage; (e) EUR 17,000 to Petru (Gruia) Lăcătuş for pecuniary and non-pecuniary damage; (f) EUR 95,000 to Maria Floarea Zoltan for pecuniary and non-pecuniary damage; and (g) EUR 27,000 to Petru (Dîgăla) Lăcătuş for pecuniary and non-pecuniary damage. 152. The Court considers that these sums should constitute full and final settlement of the case, including that awarded at the domestic level. B. Default interest 153. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court could not examine the applicants’ complaints about the destruction of their houses and possessions or their expulsion from the village, because those events took place in September 1993, before the ratification of the Convention by Romania in June 1994. However, it found violations concerning the complaints about the applicants’ subsequent living conditions and noted that the applicants’ ethnicity had been decisive in the excessive length and result of the domestic proceedings. In particular, the Court held that: - there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention; - there had been and was a continuing violation of Article 8 (right to respect for private and family life and home) of the Convention; - there had been no violation of Article 6 § 1 (access to court) of the Convention; - there had been a violation of Article 6 § 1 (right to a fair trial) of the Convention on account of the length of the proceedings; - there had been a violation of Article 14 (prohibition of discrimination) of the Convention taken in conjunction with Articles 6 § 1 and 8. |
779 | Medical negligence and liability of health professionals | II. RELEVANT DOMESTIC LAW AND PRACTICE 41 Article 4 of the Law on Blood and Blood Products (Law no. 2857 dated 25 June 1983) provides: “The powers and duties of the Ministry of Health and Social Welfare ... are as follows: ... ( c) Inspection and supervision of real and corporate entities which deal with blood and blood products ... ” 42. Article 23 of the Regulation on the Blood and Blood Products (dated 25 November 1983) reads : “ The following blood screening tests shall be conducted; blood type, Rh, compatibility and cross-match, VDRL tests, Hepatitis B, malaria parasite ... ” 43. Common provisions in the Law on Blood and Blood Productions and the Regulation on Blood and Blood Products are as follows: Article 7 and Article 38 respectively “All entities which deal with blood and blood products shall be inspected by the Ministry of Health and Social Welfare at least twice a year. Defects found during inspections shall immediately be remedied by the relevant entities. In the event the same defects are found to exist during the following inspection, the respondent individuals shall be subject to administrative and criminal proceedings.” 44. On 18 August 1983 the Ministry of Health sent a letter to all governors, for distribution to hospitals, blood centres and public institutions, informing them about AIDS and the measures to be taken to prevent the spread of this disease. The Ministry stressed that particular vigilance must be shown when choosing blood donors. In particular, it required that blood donors be subjected to a medical examination prior to giving blood and that their blood be refused in case any symptoms of HIV AIDS were detected. 45. By a letter dated 21 November 1985, the Ministry of Health informed the governors that all HIV AIDS cases must be reported to the health authorities. It noted that persons suspected of having HIV AIDS must be medically examined, and their blood, bodily fluids and all other relevant substances subjected to the requisite tests. 46. On 4 February 1987 the Ministry of Health issued a circular to all governors (circular no. 1141), for distribution to public and private hospitals and clinics as well as to the Kızılay, for prevention of the spread of the HIV AIDS disease. The Ministry noted in this circular that HIV AIDS could only be transmitted through sexual intercourse, blood transfusion or multiple use of a syringe. In this connection, the Ministry stated that the anti titre test was the most effective way of diagnosing HIV AIDS. This could only be done by the ELISA method. It stressed that, prior to blood transfusions, the requisite ELISA tests must be carried out. To that end, all hospitals should be equipped with facilities for carrying out ELISA tests on blood given by donors. The hospitals which did not have such facilities should send blood samples to the hospitals which had blood centres. 47. By a circular dated 1 April 1992, the Ministry of Health required all blood centres and stations to conduct VDRL, HBsAg, AIDS and malaria tests on all blood and blood products. It stressed that no blood transfusions should be carried out if the aforementioned tests had not been conducted. THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 49. The applicants complained that the State authorities had failed in their positive obligation to protect the right to life of the first applicant as a result of his infection with the HIV virus by blood supplied by the Kızılay, and that no effective investigation had been conducted into their criminal complaints. They invoked Article 2 of the Convention, which reads as follows: “1. Everyone's right to life shall be protected by law ... ” 50. The Government contested that argument. A. Admissibility 51. The Government submitted that Article 2 of the Convention did not apply in the circumstances of the present case. They maintained that the applicants were no longer victims of a violation of the aforementioned provision following the redress provided by the authorities, within the meaning of Article 34 of the Convention. They further noted that in the case of D. v. the United Kingdom (application no. 30240/96, 2 May 1997, Reports of Judgments and Decisions 1997 ‑ III), which concerned the attempted expulsion of an AIDS sufferer to St. Kitts where he would have been deprived of the medical treatment he was receiving in the United Kingdom, the Court had examined the complaints of the applicant under Article 3 of the Convention rather than Article 2. 52. The applicants claimed that Article 2 of the Convention covered not only incidents which resulted in the death of the victim, but also cases where the victim suffered life-threatening, serious injury. Bearing in mind that the first applicant's disease was not curable, the State was responsible for violation of the right to life of the first applicant. They thus claimed that Article 2 of the Convention applied in the present case. 53. The Court reiterates that Article 2 does not solely concern deaths resulting from the use of unjustified force by agents of the State but also, in the first sentence of its first paragraph, lays down a positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction (see, for example, L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports 1998 ‑ III, and Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 54, ECHR 2002-II). 54. Those principles apply in the public-health sphere too. The aforementioned positive obligations therefore require States to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of their patients'lives. They also require an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable (see, among authorities, Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002 ‑ I, and Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000 ‑ V). 55. Furthermore, on a number of occasions the Court has examined complaints raised under Article 2 of the Convention where the victims had suffered serious injuries as a result of illegal acts perpetrated against them and has accepted that the aforementioned provision could apply in exceptional circumstances even if the victims had not died (see Osman v. the United Kingdom, 28 October 1998, Reports 1998 ‑ VIII; Yaşa v. Turkey, 2 September 1998, Reports 1998 ‑ VI; Makaratzis v. Greece [GC], no. 50385/99, § 51, ECHR 2004 ‑ XI; and G.N. and Others v. Italy, no. 43134/05, § 69, 1 December 2009 ). 56. Likewise, in the above-cited L.C.B. case, where the applicant had suffered from leukaemia diminishing her chances of survival, and in the case of Karchen and Others v. France ((dec.), no. 5722/04, 4 March 2008), where the first applicant had been infected with the HIV virus which put his life in danger, the Court held that Article 2 of the Convention was applicable. 57. In view of the foregoing, the Court sees no reason to depart from its established case-law and considers that Article 2 of the Convention applies in the circumstances of the present case. 58. As regards the Government's reference to the case of D. v. the United Kingdom (cited above), where the applicant's complaints under Article 2 had been examined under Article 3 of the Convention, the Court notes that the circumstances of that case are fundamentally different from the present case. In the case of D. the Court examined the respondent Government's responsibility stemming from the attempted expulsion of the applicant to a third country, where he would be deprived of the medical treatment he had been receiving in the United Kingdom, from the standpoint of Article 3 of the Convention in accordance with its established practice in expulsion cases (see, among many others, Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, §§ 56-78, ECHR 2005 ‑ I). In the instant case, however, the applicants'complaints must be examined under Article 2 of the Convention since they pertain to the alleged failure of the State authorities to fulfil their positive obligation to protect life by not taking preventive measures against the spread of HIV through blood transfusions and by not conducting an effective investigation against those responsible for the infection of the first applicant. 59. Turning to the Government's submission concerning the victim status of the applicants, the Court notes that this question is inextricably linked to the merits of the case, as it needs to be ascertained whether the national authorities responded to the applicants'grievances in accordance with their positive obligation under Article 2. Accordingly, the Court joins this question to the merits and will examine it under Article 2 of the Convention (see Codarcea v. Romania, no. 31675/04, § 100, 2 June 2009). 60. Finally, the Court notes that the Government implicitly recognised the locus standi of the second and third applicants in accordance with the rulings of the national courts which accepted their standing under Turkish law as parents of the first applicant and delivered judgments favourable to them (see, a contrario, Karchen and Others, cited above). 61. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties'submissions ( a) The applicants 62. The applicants alleged that the national authorities had not protected the right to life of the first applicant as a result of their failure to give sufficient training to the health personnel concerned and to supervise and inspect their work. In this connection, they noted that the health personnel at the Kızılay had shown gross negligence by not requiring the blood donors to fill out questionnaires and by not screening their blood with sufficient care. The health personnel at the hospital, where the blood transfusion had been conducted, also failed to do the necessary tests on the blood given to the first applicant, considering that the test in question was very expensive. 63. The applicants maintained that no meaningful investigation had been carried out into their complaints, that the proceedings before the administrative courts had lasted more than twelve years and that the compensation awarded by the civil and administrative courts had not even covered the costs of medication of the first applicant. They emphasised that the family was in serious economic difficulty and unable to cover all the expenses for medication and treatment of the first applicant. ( b) The Government 64. The Government submitted that the legal remedies at the domestic level had afforded appropriate redress for the applicants'complaints under Article 2 of the Convention. They further asserted that the national authorities had conducted an effective investigation into the applicants'complaints. In their opinion, both the civil and administrative courts had taken a protective approach towards the applicants when establishing their victim status and granting them redress for their grievances. The courts had awarded the applicants sufficient compensation and these judgments had been executed by the authorities. They added that, following the impugned incident, the Kızılay had decided to give the first applicant a scholarship in order to support his education. 65. As regards the applicants'allegations that the criminal investigation was ineffective, the Government contended that the Ankara Chief Public Prosecutor's decision of non-prosecution in relation to the President of the Kızılay and the Minister of Health was compatible with the principle that the criminal liability should be personal. 2. The Court's assessment ( a ) Applicable principles 66. The Court reiterates that, even if the Convention does not as such guarantee a right to have criminal proceedings instituted against third parties (see Perez v. France [GC], no. 47287/99, § 70, ECHR 2004 ‑ I), the effective judicial system required by Article 2 may, and under certain circumstances must, include recourse to the criminal law. However, if the infringement of the right to life or to personal integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case. In the specific sphere of medical negligence, the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages. Disciplinary measures may also be envisaged (see Calvelli and Ciglio, cited above, § 51; Lazarini and Giacci v. Italy ( dec.), no. 53749/00, 7 November 2002; Vo v. France [GC], no. 53924/00, § 90, ECHR 2004 ‑ VIII; and G.N. and Others, cited above, § 82 ). ( b) Application of the above principles in the present case 67. The Court notes that the criminal investigation into the applicants'complaints concerning negligence on the part of the health personnel concerned, the Director General of the Kızılay and the Minister of Health was terminated on the ground that there was no fault directly attributable to these persons (see paragraphs 14 and 16 above). 68. In view of the above-cited principles indicating that Article 2 of the Convention does not necessarily require a criminal ‑ law remedy in cases of unintentional infringement of the right to life or to personal integrity, such as the present case involving medical negligence, the Court must ascertain whether the Turkish legal system afforded the applicants sufficient and appropriate civil redress in order to satisfy the positive obligation under the aforementioned provision. 69. In this context, the Court notes that both the civil and administrative courts ruled that the Kızılay was at fault for supplying HIV-infected blood to the first applicant and that the Ministry of Health was also responsible as a result of the negligence of its personnel in the performance of their duties. Both institutions had therefore been held liable for the damage caused to the applicants (see paragraphs 21, 22 and 31 above). Furthermore, the Ankara Civil Court of First Instance established that the HIV infected blood given to the first applicant had not been detected by the health personnel because they had not done the requisite test on the blood in question, considering that it would be too costly. The court found moreover that, prior to the impugned incident, there was no regulation requiring blood donors to give information about their sexual history which could help determine their eligibility to give blood. On account of these deficiencies, and the defendants'failure to comply with the already existing regulations, the civil and administrative courts awarded the applicants TRL 54,930,703,000 and 159,369.49 New Turkish Liras, respectively, to cover non-pecuniary damages and the statutory interest applied to those sums. 70. It thus appears that the applicants had access to the civil and administrative courts which enabled the establishment of the liability of those responsible for the infection of the first applicant with the HIV virus and the award of civil redress, in an order for damages. However, as it appears from the parties'submissions, a crucial question in the instant case is whether the redress in question was appropriate and sufficient. 71. In this connection, the Court notes that the non-pecuniary damage awards received by the applicants only covered one year's treatment and medication for the first applicant (see paragraph 37 above). Thus the family was left in debt and poverty and unable to meet the high costs of the continued treatment and medication amounting to a monthly cost of almost EUR 6,800, which was not contested by the Government (see paragraphs 35, 39 and 40 above). Despite the promises made by the authorities to pay the medical expenses of the first applicant, the applicants'requests to that effect were rejected by the Kızılay and the Ministry of Health (Ibid.). It is striking that the green card given to the applicants was withdrawn immediately after the announcement of the judgments ordering the defendants to pay compensation to the applicants (see paragraph 36 above). It follows that the applicants were left on their own to pay the high costs of treatment and medication for the first applicant. 72. In view of the above, while the Court acknowledges the sensitive and positive approach adopted by the national courts in determining the responsibility of the Kızılay and the Ministry of Health and in ordering them to pay damages to the applicants, it considers that the most appropriate remedy in the circumstances would have been to have ordered the defendants, in addition to the payment of non-pecuniary damages, to pay for the treatment and medication expenses of the first applicant during his lifetime. The Court concludes therefore that the redress offered to the applicants was far from satisfactory for the purposes of the positive obligation under Article 2 of the Convention. 73. Accordingly, the Court considers that the applicants can still claim to be victims of a violation of their rights under Article 2 within the meaning of Article 34 of the Convention. It follows that the Government's objection on this point must be dismissed (see paragraph 59 above). 74. As regards the complaint pertaining to the length of the proceedings before the administrative courts, the Court recalls that the requirements of Article 2 of the Convention will not be satisfied if the protection afforded by domestic law exists only in theory. It must also operate effectively in practice, which requires a prompt examination of the case without unnecessary delay (see Calvelli and Ciglio, cited above, § 53; Lazzarini and Ghiacci v. Italy (dec.), no. 53749/00, 7 November 2002; Byrzykowski v. Poland, no. 11562/05, § 117, 27 June 2006; and G.N. and Others, cited above, § 97 ). 75. On that basis, the Court observes that, despite the due diligence shown by the civil courts in the handling of the applicants'compensation claims within a very short time (approximately one year and two months), the administrative court proceedings aimed at determining the liability of the Ministry of Health lasted nine years, four months and seventeen days (see paragraphs 24-32 above). Having regard to the latter delay, it cannot be said that the administrative courts complied with the requirements of promptness and reasonable expedition implicit in this context. 76. In that connection, the Court recalls that, apart from the concern for the respect of the rights inherent in Article 2 of the Convention in each individual case, more general considerations also call for a prompt examination of cases concerning medical negligence in a hospital setting. Knowledge of the facts and of possible errors committed in the course of medical care is essential to enable the institutions and medical staff concerned to remedy the potential deficiencies and prevent similar errors. The prompt examination of such cases is therefore important for the safety of users of all health services (see Šilih v. Slovenia [GC], no. 71463/01, § 196, 9 April 2009 ). 77. In view of the foregoing considerations, the Court concludes that there has been a violation of Article 2 of the Convention. 78. Finally, the Court is of the view that it is appropriate to further examine the “ reasonableness ” of the length of the administrative proceedings in question from the standpoint of Article 6 § 1 of the Convention below. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND 13 OF THE CONVENTION 79. The applicants complained that the length of the administrative court proceedings had contravened the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention. They also alleged under Article 13 of the Convention that there were no effective remedies in domestic law to accelerate the proceedings. Article 6 § 1 reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” Article 13 provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 80. The Government contested that argument. 81. The period to be taken into consideration began on 13 October 1998 and ended on 30 April 2008. It thus lasted approximately nine years, four months and seventeen days for two levels of jurisdiction. A. Admissibility 82. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 83. The applicants alleged that the length of the proceedings before the administrative courts was excessive. They further noted that the Izmir Administrative Court's judgment had not been executed within a reasonable time, although they had informed the authorities that the compensation in question would be used for the treatment and medication of the first applicant. 84. The Government submitted that the alleged delay had been caused by the difficulties pertaining to the jurisdictional questions, the nature of the dispute and the applicants'appeal against the First Instance Court's judgment in relation to the legal fees. 85. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000 ‑ VII; X v. France, 31 March 1992, § 32, Series A no. 234 ‑ C; Vallée v. France, 26 April 1994, § 34, Series A no. 289 ‑ A; Karakaya v. France, 26 August 1994, § 30, Series A no. 289 ‑ B; Pailot v. France, 22 April 1998, § 61, Reports 1998 ‑ II; Richard v. France, 22 April 1998, § 57, Reports 1998 ‑ II; Leterme v. France, 29 April 1998, § 64, Reports 1998 ‑ III; and Henra v. France, 29 April 1998, § 61, Reports 1998 ‑ II ). 86. The Court considers that the case was not at all complex as the negligence and responsibility of the authorities in the infection of the first applicant had already been established by the Ankara Civil Court of First Instance and the Court of Cassation by judgments dated 13 July 1998 and 9 February 1999, respectively. 87. As regards the conduct of the applicants, the Court observes that there is no indication in the case file that the applicants noticeably contributed to the length of the proceedings. The fact that they exercised their right to lodge an appeal against the First Instance Court's judgment in relation to the legal fees cannot be taken as a factor which caused significant delay in the proceedings. 88. As to the conduct of the authorities, the Court notes that several periods appear to have been abnormally long. In this connection, it observes that the administrative courts took almost two and a half years to resolve the jurisdictional question (see paragraphs 25 and 26 above). The Izmir Administrative Court delivered its first judgment more than two years after the case had been remitted to it for examination (see paragraphs 26 and 27 above). Finally, it took the Supreme Administrative Court two and a half years to examine the appeal lodged by the applicants against the First Instance Court's judgment of 14 July 2003 (see paragraphs 27-29 above). 89. Notwithstanding the above findings, the Court observes that the main issue in the present case was not whether there had been unreasonable delays imputable to the administrative courts hearing the applicants'case, but whether those courts had acted with “exceptional diligence” in view of the first applicant's condition and the gravity of the overall situation. Furthermore, what was at stake in the proceedings complained of was of crucial importance to the applicants in view of the disease from which the first applicant is suffering (see X v. France, Vallée, Karakaya, Pailot, Richard, Leterme and Henra judgments cited above, § 47, § 47, § 43, § 68, § 64, § 68, and § 68 respectively). 90. Having regard to the foregoing, the Court considers that in the instant case the length of the proceedings before the administrative courts was excessive and failed to meet the “reasonable time” requirement. 91. The applicants further complained of a lack of an effective domestic remedy to accelerate the proceedings. The Government disputed this complaint. 92. The Court recalls its earlier finding that the Turkish legal system did not provide an effective remedy whereby the length of the proceedings could be successfully challenged (see Tendik and Others v. Turkey, no. 23188/02, §§ 3 4-39, 22 December 2005). It finds no reason to reach a different conclusion in the instant case. 93. There has accordingly been a breach of Articles 6 § 1 and 13 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 94. Lastly, relying on Article 6 § 1 of the Convention the applicants complained that they had been denied a fair hearing by an independent and impartial tribunal. Under Article 13 of the Convention they maintained that they had not had an effective remedy in respect of their complaints under Article 2. 95. Having examined the material submitted to it, the Court considers that there is no appearance of a violation of these provisions. 96. It follows that this part of the application is manifestly ill ‑ founded and must be declared inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 97. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1. Pecuniary damage 98. The applicants claimed TRL 1,913,248 (approximately EUR 852,128) in respect of pecuniary damage. The applicants explained that this amount consisted of the following items: – EUR 328,140 for medication costs which had already been incurred by the applicants up until September 2008; – TRL 480,000 for the costs that had already been incurred and will be incurred for forty years for the treatment of the first applicant. This amount includes the travel and accommodation expenses of the applicants who have to travel to Ankara every month for the treatment; – TRL 213,560 for the deprivation of future income of the first applicant; – TRL 259,874 for the costs of employing a house keeper as the second applicant has to work and is unable to do the household work; – TRL 142,999 for the deprivation of income of the second applicant (mother); – TRL 262,361 for the deprivation of future income of the third applicant (father) who is currently unable to work. 99. The applicants submitted a detailed report about the medication consumed by the first applicant and the price of each medicine. They also furnished the Court with an expert report in support of the remaining claims. 100. The Government submitted that the applicants had failed to substantiate their claims in respect of the pecuniary damage. In this connection they emphasised that the domestic courts had already awarded the applicants sufficient compensation for the damage incurred by them. They thus asked the Court not to make any award under this head. 101. The Court reiterates that there must be a clear causal connection between the damage claimed by the applicants and the violation of the Convention. In view of its above conclusion, it finds that there is a direct causal link between the violation found under Article 2 of the Convention and the damage incurred by the applicants. Having regard to the documents in its possession and to the fact that the authorities refused to pay the costs of treatment and medication for the first applicant, the Court considers it reasonable to award the applicants, jointly, EUR 3 00, 00 0 in respect of past pecuniary damage, plus any tax that may be chargeable on that amount. 102. The Court considers that, in addition to the award made above, the Government must provide free and full medical cover for the first applicant during his lifetime. 2. Non-pecuniary damage 103. The applicants claimed EUR 2,000,000 in respect of non ‑ pecuniary damage. They noted that this amount consisted of the following: EUR 1,000,000 for the first applicant and EUR 500,000 for each of the second and third applicants. 104. The Government submitted that the amount claimed was excessive and unjustified. They further contended that any award to be made for non ‑ pecuniary damage should not be a source of enrichment. 105. The Court has found a violation of Articles 2, 6 and 13 of the Convention on account of the authorities'failure to fulfil their positive obligation to protect the right to life of the first applicant and of the excessive length of the administrative court proceedings as well as lack of an effective remedy to accelerate the proceedings. Bearing in mind the emotional distress and anguish they endured, the Court accepts that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. 106. As regards the Government's contention that the award to be made under this head should not be a source of enrichment, the Court recalls the considerations of the Ankara Civil Court of First Instance that the sorrow and pain suffered by the [applicants] cannot be compensated even if huge amounts were awarded (see paragraph 21 above). 107. In view of the above, ruling on an equitable basis, the Court awards the applicants, jointly, a total sum of EUR 78 ,000, plus any tax that may be chargeable thereon. B. Costs and expenses 108. The applicants did not specify a sum in respect of the costs and expenses that which have incurred. However, they submitted a schedule of legal work carried out by their representative before the domestic courts and for the presentation of their case to the European Court. 109. The Government asked the Court to dismiss the applicants'claims for costs and expenses. 110. The Court has consistently held that costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred, and were reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see, for example, Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002, and Sahin v. Germany [GC], no. 30943/96, § 105, ECHR 2003 ‑ VIII). 111. In the present case, although the applicants did not claim a specific sum, they submitted a time schedule indicating the time spent for the preparation and submission of their application and asked the Court to make an award under this head. Considering that the applicants must have incurred costs and expenses for the presentation of their case which involves complex issues of fact and legal questions, the Court finds it reasonable to award EUR 3 ,000 to them, jointly, under this head. C. Default interest 112. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 2 (right to life) of the Convention. While it acknowledged the sensitive and positive approach adopted by the national courts, it considered that the most appropriate remedy in the circumstances would have been to have ordered the defendants, in addition to the payment in respect of non-pecuniary damage, to pay for the first applicant’s treatment and medication expenses during his lifetime. The redress offered to the applicants had therefore been far from satisfactory for the purposes of the positive obligation under Article 2. Moreover, as the domestic proceedings had lasted over nine years, it could not be said that the administrative courts had complied with the requirements of promptness and reasonable expedition implicit in this context. The Court also held that there had been a violation of Article 6 § 1 (right to a fair trial) of the Convention on account of the length of the administrative proceedings, and a violation of Article 13 (right to an effective remedy) of the Convention. |
542 | Violent acts by private individuals | II. RELEVANT DOMESTIC LAW 36. Section 1(2) of the Media Act ( Zakon o medijima, Official Gazette no. 59/2004 of 10 May 2004) provides that its provisions shall be applied and interpreted in conformity with the Convention. The relevant part of section 30 of the Media Act (which used to exist in the Croatian legal system as former section 28(6) of the 2003 Media Act (Official Gazette no. 163/2003 of 16 October 2003)), reads as follows: “1. A journalist shall not be obliged to reveal the source of published information or information he intends to publish... 4. The State Attorney's Office may, if such a limitation is necessary in the interests of national security, territorial integrity or the protection of health, submit a request to the competent court to have a journalist ordered to reveal the source of published information or information he intends to publish.... 6. The court may order a journalist to reveal the source of published information or information he intends to publish if that is necessary for the protection of the public interest and involves extremely significant and serious circumstances, whereby it is indisputably established: (i) there is no reasonable alternative to revealing the source of information or that the authority indicated in paragraph 4 of this section, which seeks that the source be revealed, has already taken such a measure, and (ii) the law-based public-interest justification for revealing the source of information clearly prevails over the public-interest justification for protecting the source of information.” THE LAW I. ALLEGED VIOLATION OF ARTICLES 3, 8 AND 13 OF THE CONVENTION 37. The applicant complained that the investigation carried out by the Croatian authorities following the attack on him had been unreasonably delayed and ineffective, in breach of Articles 3, 8 and 13 of the Convention, which read as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 8 “Everyone has the right to respect for his private ... life... Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties' submissions 1. The applicant 38. The applicant maintained that the criminal investigation in his case had now been pending for seven and a half years, during which the police had failed to investigate the attack properly. He stressed that his lawyer had urged not only the police, but also the State Attorney's Office and the Ministry of the Interior, to speed up the investigation and apprehend the attackers. Moreover, the applicant considered the Government's explanation of the prolonged duration of the investigations contradictory and unsatisfactory. In particular, the police had firstly stated that he had given a detailed description of the attackers, but had later claimed the contrary. 39. The applicant further submitted that he had not been informed of several omissions by the police, in particular of the reasons why the police had never sought to investigate the person identified by O. D. as one of the possible attackers. It appeared from the documents submitted that the identified individual, known as S., had a criminal record, whereas he had not even been questioned about the attack on the applicant. 40. Moreover, the applicant also pointed out that the police had never taken any action other than to interview the applicant and several eyewitnesses proposed by his lawyer, even though Croatian law provided for many other standard police methods, such as interviewing persons identified as belonging to skinhead groups, possibly also suspects in other similar incidents, polygraph testing, undercover measures and so on. 41. The police had further failed to request the competent court to order the journalist conducting the interview with a skinhead aired on national television on 14 May 2001 to reveal his source of information, even though they had no other leads in the case. In this connection, the applicant observed that such a possibility had been available ever since the Media Act had come into force, but that the domestic authorities had nonetheless never used it. Furthermore, such an order would not have been contrary to the freedom of expression guaranteed under the Convention, since in the present case the general interest in prevention of crime against ethnic minorities prevailed over the protection of the source of information. 42. For these reasons, the investigation had not met the standards set out in the Court's case-law with respect to Article 3 of the Convention, taken alone and in conjunction with Article 13. Alternatively, should the Court conclude that his case did not attain the minimum level of severity under Article 3, the applicant argued under Article 8 that the attack he had suffered and the lack of an effective investigation thereof, had constituted an unjustified interference with his private life. 2. The Government 43. The Government contested the applicant's allegations. They claimed at the outset that the ill-treatment to which the applicant had been exposed had not attained a level of severity which would justify the application of Article 3 of the Convention. The incident had been caused by unknown individuals and not by representatives of the authorities and the Government could not assess to what extent the applicant's mental suffering following the incident had been caused by the attack itself or whether it had existed before. 44. In respect of the investigation following the incident, the Government firstly contended that the positive obligation of the State in cases when the ill-treatment had been caused by third persons went only so far as that the State was expected to prevent acts of which its bodies were or should be aware. 45. Furthermore, the Government pointed out that the police had intervened immediately after having been informed about the attack. The subsequent investigation had been significantly hindered from the very outset, however, because neither the applicant nor the persons who had witnessed the attack had been able to give a sufficiently detailed description of the attackers. Moreover, the applicant had admitted that he would not be able to recognise the attackers even if he were to see them again. During the investigation the police had interviewed all the potential witnesses to the incident, including persons living in the area and a waitress working in a nearby café. All actions had been taken in the shortest time possible. 46. It is true that witness O. D. had identified a certain S. as one of the attackers. However, none of the other witnesses having confirmed this allegation – despite the large and visible scar on his face and the fact that he was well known to the police, although not as a member of a skinhead group – the police had excluded him from the list of possible suspects. 47. As to the journalist interviewed, the Government submitted that he had the right not to reveal his source of information and that, under the law in force at the time of the interview, he could not have been ordered to do so. 48. In conclusion, the Government deemed that the investigation in respect of this incident had not constituted a violation of Article 3 or 13 of the Convention. As to the applicant's complaint under Article 8 of the Convention, the Government claimed that there had been no immediate or direct link between the actions pursued and his private life. B. The Court's assessment 49. Having regard to the nature and the substance of the applicant's complaint in the present case, the Court finds that it falls to be examined primarily under Article 3 of the Convention. 50. The Court reiterates at the outset that the ill-treatment suffered must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim (see Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001 ‑ VII). 51. In the present case, the Court considers that the injury suffered by the applicant, including several broken ribs and subsequent hospitalisation, was sufficiently serious to amount to ill-treatment within the meaning of Article 3 of the Convention. 52. The Court reiterates that the obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals (see A. v. the United Kingdom, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VI, p. 2699, § 22; Z and Others v. the United Kingdom [GC], no. 29392/95, §§ 73-75, ECHR 2001-V; and E. and Others v. the United Kingdom, no. 33218/96, 26 November 2002). 53. Article 3 of the Convention may also give rise to a positive obligation to conduct an official investigation (see Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports 1998-VIII, p. 3290, § 102). Such a positive obligation cannot be considered in principle to be limited solely to cases of ill-treatment by State agents (see M.C. v. Bulgaria, no. 39272/98, § 151, ECHR 2003 ‑ XII). 54. Lastly, the Court reiterates that the scope of the above obligation by the State is one of means, not of result; the authorities must have taken all reasonable steps available to them to secure the evidence concerning the incident (see, mutatis mutandis, Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003 ‑ V). A requirement of promptness and reasonable expedition of the investigation is implicit in this context (see, mutatis mutandis, Yaşa v. Turkey, judgment of 2 September 1998, Reports 1998 ‑ VI, p. 2439, §§ 102-104). 55. Turning to the present case, since the event complained of took place the police have not brought charges against anyone and the criminal proceedings have now been pending in the pre-trial phase for almost seven years. 56. The Government submitted the complete police case file in the matter, containing interviews with the applicant and several eyewitnesses, which the police claim has not produced any leads. Yet, presumably on the basis of the description of the attackers, the police concluded that the attack had been committed by members of a skinhead group, which has been known to participate in similar incidents in the past. The police appear never to have brought in for questioning any person belonging to this group or to have pursued this information in any other way. Moreover, they excluded the person S. identified by one of the witnesses from the list of possible suspects without questioning him about the attack. 57. The police also interviewed the journalist who had talked to one of the skinhead members who had alluded to the attack on the applicant. However, they did not request the competent court to order that the journalist reveal his source of information in line with the provisions of the domestic law. The relevant law had already changed to allow such a possibility by 2003, but the Government did not explain why the police did not avail themselves of this, given that there appeared to be no further leads in the case. The Court considers that such an action by the police or the competent State Attorney's Office would not a priori be incompatible with the freedom of the media guaranteed under Article 10 of the Convention, since, in any event, it would be for the competent court to weigh all the interests involved and to decide whether or not it was necessary in the particular circumstances of the case to reveal the interviewed person's identity. 58. Lastly, the Court notes that the police have not resorted to any other measures of investigation allowed for by the domestic law, other than interviewing witnesses proposed by the applicants' lawyer. In this connection, the Court cannot but note that the last activity of the police in the case took place in 2001. 59. Having considered all the material in its possession and the arguments put forward by the parties, the Court considers that the failure of the State authorities to further the case or obtain any tangible evidence with a view to identifying and arresting the attackers over a prolonged period of time indicates that the investigation did not meet the requirements of Article 3 of the Convention. 60. In consequence, the Court finds that there has been a breach of Article 3 of the Convention. 61. Having regard to the above conclusion, in the circumstances of the present case the Court finds that no separate issues arise under Articles 8 or 13 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 14 TAKEN IN CONJUCTION WITH ARTICLE 3 OF THE CONVENTION 62. The applicant also complained that both his ill-treatment and the subsequent proceedings conducted by the authorities showed that he had been discriminated against on account of his ethnic origin. He relied on Article 14 of the Convention, taken in conjunction with Article 3 of the Convention. Article 14 reads as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. The parties' submissions 63. The applicant maintained that the attack on him and the lack of action by the authorities had resulted from the fact that he was of Roma origin. He relied on the Nachova case (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, ECHR 2005 ‑ ...) and on the assumption that a complaint of racist violence should be accorded utmost priority, as racist violence was particularly destructive of fundamental rights. In this respect the applicant pointed to the broader situation of the Roma population in Croatia as well as the recently published report of the European Commission against Racism and Intolerance (Third Report on Croatia, CRI (2005) 24, 14 June 2005). 64. The Government considered the applicant's Article 14 complaint wholly unsubstantiated. They maintained that nothing in the conduct of the domestic authorities had indicated a difference in treatment of the applicant on the basis of his Roma origin or a tendency to cover up events or encourage an attack to his detriment. The fact that the perpetrators had not yet been identified had no connection with the ethnic origin of the applicant, but was the result of objective problems the prosecuting authorities had experienced during the course of the proceedings. 65. In this connection the Government enumerated several cases in which the police had been successful in identifying and prosecuting persons who had committed crimes against individuals of Roma origin. They claimed that there was no systemic problem encountered by the Roma population in Croatia, other than their difficulties of integration into society, which were common also in other States signatory to the Convention. B. The Court's assessment 66. The Court reiterates that when investigating violent incidents, State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Admittedly, proving racial motivation will often be extremely difficult in practice. The respondent State's obligation to investigate possible racist overtones to a violent act is an obligation to use best endeavours and is not absolute; the authorities must do what is reasonable in the circumstances of the case (see Nachova and Others, cited above, § 160, ECHR 2005 ‑ ...). 67. The Court considers the foregoing necessarily true also in cases where the treatment contrary to Article 3 of the Convention is inflicted by private individuals. Treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be turning a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention (see Nachova and Others, cited above, with further references). 68. In the present case it is suspected that the applicant's attackers belonged to a skinhead group which is by its nature governed by extremist and racist ideology. Both the police and the Government admitted this fact. 69. The Court considers it unacceptable that, being aware that the event at issue was most probably induced by ethnic hatred, the police allowed the investigation to last for more than seven years without taking any serious action with a view to identifying or prosecuting the perpetrators (see paragraphs 58-60 above). 70. Consequently, the Court considers that there has been a violation of Article 14 taken in conjunction with the procedural aspect of Article 3 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 71. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 72. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage on account of pain, frustration and humiliation suffered as a result of the attack and of the subsequent inadequate investigation. 73. The Government considered this claim unsubstantiated and excessive. 74. Having regard to all the circumstances of the present case, the Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 8,000 under this head, plus any tax that may be chargeable on that amount. B. Costs and expenses 75. The applicant claimed 790 US dollars (USD) in respect of costs incurred by the European Roma Rights Centre in the domestic proceedings and USD 8,325 for those incurred in the proceedings before the Court (111 hours of work at an hourly rate of USD 75). In addition, the applicant claimed a total of EUR 6,600 (110 hours at an hourly rate of EUR 60) in respect of costs incurred by the lawyer in preparing the constitutional complaint at the domestic level as well as those incurred during the Court proceedings. 76. The Government contested these claims as excessive. 77. According to the Court's established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and are also reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002). Taking into account all the materials in its possession, the Court makes an award of EUR 6,000 under this head, plus any tax that may be chargeable on that amount. C. Default interest 78. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | Having considered all the material in its possession and the arguments put forward by the parties, the European Court of Human Rights considered that the failure of the State authorities to further the case or obtain any tangible evidence with a view of identifying and arresting the attackers over a prolonged period of time indicated that the investigation did not meet the requirements of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights. It therefore held that there had been a violation of Article 3 concerning the lack of an effective investigation. The Court also found that there had been a violation of Article 14 (prohibition of discrimination) of the Convention in conjunction with Article 3 for the following reasons: the applicant’s attackers were suspected of belonging to a group of skinheads, and it was in the nature of such groups to be governed by extremist and racist ideology; accordingly, knowing that the attack was probably the result of ethnic hatred, the police should not have allowed the investigation to drag on for more than seven years without taking any serious steps to identify or prosecute those responsible. |
92 | Taking of children into care | II. RELEVANT DOMESTIC LAW Charter of Fundamental Rights and Freedoms In accordance with Article 32 § 1, the family is protected by law. Special protection for children and minors is guaranteed. Under Article 35 § 5, parents caring for children are entitled to State aid. Code of Civil Procedure Article 76a provides that if a minor child is deprived of care or if his life or favourable development is seriously threatened or disturbed, the President of the Chamber shall issue an interim order to place that child in the care of a designated person (physical or legal person ). Family Law No. 94/1963 According to Article 46 § 1, if the education of the child is seriously threatened or disturbed and if other educational measures have not remedied the situation, or if for other serious reasons the parents cannot ensure the child ’ s education, the court may order the placement of the child in an educational care institution. If the interests of the minor so require, the said order may be made even if it was not preceded by other educational measures. Article 46 § 2 requires the court to consider, before ordering the placement mentioned above, whether the child ’ s education may be provided by a foster family, this type of education being a priority. If the reasons for the placement order cease to exist or if the child may be placed in foster care, the court will terminate the placement in the public institution. Under Article 68 (1) (a), the consent of the parents acting as legal representatives of the child is not necessary for the adoption of the child if, for a minimum period of six months, they did not consistently show a real interest in the child, especially if they did not visit him or if they did not fulfil their maintenance obligations on a regular basis and of their own free will and if they did not make efforts to redress, as far as possible, their family and social situation so that they themselves can take care of their child. Law No. 114/1988 on the powers of the authorities regarding social aid According to Article 14 §§ 1 and 2, municipalities and district offices organize and provide citizens with social protection. To this end, they are seeking, in cooperation with national authorities, associations and churches, people in need of social assistance. If the municipality is not competent to provide these citizens with the necessary services and allowances, it notifies the district office or acts as an intermediary. It can also grant an exceptional allowance to citizens who find themselves in very unfavourable social conditions. Under Article 15 (2), the municipality informs the district office which families, children and pregnant women are in need of social assistance. Law No. 359/1999 on the social protection of the child Article 29 § 1 requires the competent local authority to verify compliance with the rights of the child placed in a public institution, to monitor the development of his or her capacities and relations with the parents and to establish whether the grounds for placement are still relevant. It also goes towards placing brothers and sisters in the same establishment. According to Article 30, the public establishment in which a child is placed may allow the latter, subject to the written consent of the competent local authority, to stay with his parents or other persons; such a stay is in principle limited to fourteen consecutive days. If the addresses of the parents ’ and the child ’ s permanent homes are different, the consent of the two competent local authorities is required. ON THE LAW ON THE VIOLATION OF ARTICLE 8 OF THE CONVENTION In their complaint form, the applicants complained in particular that they had been separated from their children and complained of the lack of assistance from the national authorities. In this regard, they relied on Articles 1, 6, 8 and 13 of the Convention and Article 1 of Protocol No. 12. Having discretion with respect of the legal classification of the facts of the claim, the Court considers it appropriate to examine the complaints raised by the concerned parties only from the perspective of Article 8, which requires that the decision-making process leading to interference measures be fair and respect as appropriate the interests protected by this provision (Kutzner v. Germany, No. 46544/99, § 56, ECHR 2002-I). Article 8 thus provides in its relevant parts: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” The Government rejects the applicants ’ argument. On Admissibility The Government first agues non-exhaustion of domestic remedies. Provisional Measure of 15 November 2000 and Placement of Younger Children in a Foster Family With regard to the measure of 15 November 2000, whereby the children of the applicants were provisionally placed in an educational assistance establishment, the Government observes that the appeal filed by the applicant was dismissed for being submitted late (see paragraph 11 above). It further notes that the applicants did not lodge a constitutional complaint against the decision of 6 May 2005, according to which their two younger children were definitively transferred from the public establishment to a foster family. The Court reiterates that the purpose of Article 35 of the Convention is to afford the Contracting States the opportunity to prevent or remedy the violations alleged against them before they are submitted to the Court. States may therefore only be held accountable before an international body after having had the opportunity to rectify the situation in their domestic legal order (Aksoy v. Turkey, judgment of 18 December 1996, Reports of Judgments and Decisions 1996- VI, § 51, Fressoz and Roire v. France [GC], No. 29183/95, § 37, ECHR 1999-I). The aforementioned provision therefore requires that the complaints to be subsequently brought in Strasbourg be brought before the relevant internal body, at least in substance and in accordance with the forms and timeframes provided in the internal law (Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, § 66). In the present case, it must be stated that the applicants have not duly exercised their rights to the remedies available to them for challenging the above-mentioned decisions. It follows that this part of the application must be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention. Definitive placement of the children in an educational care establishment pursuant to the decisions of 18 April and 22 August 2002 The Government notes that on 24 March and 6 May 2005, the applicants request the court to terminate the placement of their four minor children in the public establishment and in the foster family and to be transferred to their custody (see paragraphs 30 and 32 above). At the time of the preparation by the Government of its observations, these requests introduced by the parents remained pending. The Government argued that if the applicants ’ allegations that their situation was already satisfactory were to be justified, the courts would have the opportunity to remedy the alleged violation of the Convention by ordering the return of the children to their parents ’ care. For this reason, the Government considered this part of the application premature. The Court notes that the applicants and their children were definitively separated by virtue of the decisions of 18 April and 22 August 2002, in which the courts decided to place the children in educational care establishments. According to the information available to the Court to date, the two younger children remain in foster care. The fact that the proceedings for the invalidation of this placement is pending does not detract from the reality of the interference in the applicants ’ right to respect for their family life resulting from the separation. Therefore, since the decisions to place these children became final in 2002 and were approved by the Constitutional Court in January 2004, the Government ’ s objection to the effect that the request was premature must be rejected. With respect to the two eldest children, still minors, the petitioners ’ request dated 6 May 2005 was granted. Consequently, these children were reunited with the applicants pursuant to the Regional Court ’ s judgment of 23 February 2006. It follows that the measure constituting an interference with the applicants ’ right to the respect of their family life was in place for almost four years; therefore, the complaint based on these facts cannot be premature. Therefore, the defence raised by the Government is rejected. Furthermore, the Court considers it necessary to note that, notwithstanding the judgment of the Regional Court ordering the return of older children into the applicants ’ care, they may still be considered “victims” of a violation of the Convention within the meaning of Article 34. Indeed, “a measure of a public authority eliminating or mitigating the effect of the act or omission at issue deprives a person the status of victim only if the national authorities recognise, explicitly or substantively, and then repaired the violation of the Convention” (DH and Others v. Czech Republic (dec.), No. 57325/00, 1 March 2005; Nsona v. the Netherlands, judgment of 28 November 1996, Reports of Judgments and decisions 1996-V, § 106, Scordino v. Italy (No. 1) [GC], No. 36813/97, § 180, ECHR 2006 -...). However, in this case, the authorities did not in any way acknowledge any violation of the applicants ’ rights and the decision of 23 February 2006 was not based on the alleged violation of Article 8 of the Convention. Therefore, the Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is unaffected by any other ground of inadmissibility. It must therefore be declared admissible. On the merits The parties ’ positions The Government accepts that the measure being challenged in this case by the applicants constitutes an interference with their right to the respect for family life within the meaning of Article 8 of the Convention. The Government argues that the decision to place the children in an educational care establishment was based on the provision of Article 46 § 1 of the Family Law and that it was taken in order to protect the health and safety of children, as well as their rights and freedoms. The Government strongly opposes the applicants ’ allegations that the district office had submitted incorrect information to the courts and treated them in a discriminatory manner. The Government also asserts that the said placement order was necessary in a democratic society; on this point, the Government observes that the first judgment of 1 March 2001 was vacated in order to better examine the issue of a need for a placement (see Paragraph 13 above). Subsequently, it was found in the judgment of 18 April 2002 that the applicants did not have suitable accommodation, that they had not made sufficient efforts to find one and that they were unemployed and without resources. The Government agrees with the court that the applicants were not in a position to provide the education of their minor children for want of adequate housing; therefore, interference by the national authorities in the form of taking over the care of children was essential. Furthermore, according to the Government, the judgment of 22 August 2002 and its detailed and convincing reasoning show that the appellate court was aware of the importance and the consequences of the placement measure for the applicants ’ family life. In accordance with the principle of subsidiarity, the court noted that it was only possible to place children in a public establishment if the aim could not be achieved through less restrictive means, which was the case here as the children could not be entrusted to another person. After taking into account the conflicting interests in the present case, the court properly explained the reasons for which the placement of the children was, in the concrete circumstances of the case, more conducive to the effective protection of their interests. Finally, the tribunal informed the applicants under which conditions it would be possible to put an end to the disputed placement. Lastly, the Government notes that these decisions were validated by the Constitutional Court, which showed a balanced attitude towards this complex problem. According to the Government, there is thus no reason to doubt that the above-mentioned decisions of the national courts satisfied the condition of “necessity in a democratic society” in that they were based on relevant and sufficient grounds. The main reason was the long-standing inability of the applicants to provide adequate housing for their children. Since the applicants had not remedied their situation even after the provisional placement of the children had been ordered, the national authorities had only to decide on the final placement of the children; therefore, the judicial decisions of 25 September 2000, 1 March and 1 November 2001 cannot be regarded as incompatible, as the applicants claim. Before ordering such a measure, the courts also examined, with a negative result, the question whether there were other less restrictive alternatives. As to the applicant ’ s allegation that the authorities did not contact her brothers and sisters, the Government asserts that most of them had been adopted or lived under the same conditions as the applicants and that the applicants had never suggested that their children be placed with their relatives. Thus, bearing in mind the delicate nature of the case, the courts in this case endeavoured to best protect the rights of the applicants and, in particular, those of their children. Further, the Government consider irrelevant the applicants ’ argument that the national authorities did not act in accordance with their positive obligations in that they did not help them find adequate housing. Referring in particular to the judgment of 18 April 2002, the Government pointed out that the applicants had been sufficiently active. It should be noted that after the birth of her last child, the applicant was offered accommodation by the District Office for herself and all her children at a price which cannot be regarded as disproportionate and that the applicants were able to pay. However, the applicant only took up this offer in July 2000; afterwards, she secretly moved elsewhere and refused to return, which triggered the procedure leading to the placement of the children. Finally, with regard to the procedural safeguards provided for under Article 8, the Government argued that the applicants had been sufficiently involved in the decision-making process and had actively participated in the hearings held by the district and regional courts, so that they were able to express themselves on the measure envisaged. It follows, in the opinion of the Government, that the national authorities did not exceed their discretion as allowed by Article 8 of the Convention, and that this provision was not violated in this case. The applicants allege that the Government ’ s observations lack impartiality and objectivity; according to them, the Government focuses on the procedural aspect of the case and does not examine the question of the fair protection of their rights and interests. The applicants admit that, formally, the courts acted in accordance with national law, but denounce that they relied solely on information provided by other national authorities, which was false and distorted. They argued that, despite their requests, these authorities never helped them to remedy their situation and find housing corresponding to their financial possibilities, as evidenced by, among other things, the report drawn up by the assistants of a children ’ s aid association (see paragraph 26 above). On the contrary, they merely noted the applicants ’ incapacity and resolved the case administratively, separating them from their children and even separating the children from each other, as they were placed in two different establishments. The applicants therefore claim that the authorities committed an injustice towards their children and caused them psychological trauma. The applicants further argue that their efforts to find housing were monitored by the Tábor Department of Social Welfare since their arrival in the district in 1997. Apart from this monitoring, however, this authority did not undertake any positive actions. To the contrary, it caused the issuance of the supervisory order of 25 September 2000 by the District Court. The applicants consider that by this decision, the court indirectly invited the Department of Social Welfare to assist the applicants. However, only two months later, it ordered the temporary placement of the children (see paragraph 10 above), without examining the question of how the said department had fulfilled its obligation of assistance. According to them, the “ aid ” provided by the authorities was therefore limited to the adoption of various decisions that did not take into account the circumstances of the case and violated Articles 8 and 14 of the Convention. The applicants assert that the decision to place their children in public schools was in contradiction with the facts mentioned in the judgment of 25 September 2000 and was based on distorted information as presented by the District Office; thereafter, the courts considered such information to be true without verifying its authenticity. They also contest the Government ’ s argument that the courts had looked for other persons to care for the children; they state in this respect that the authorities never contacted the applicant ’ s five siblings. According to the applicants, who point out that they had obtained only basic education, the authorities showed a disdainful and discriminatory attitude towards them because of their social background and their poverty. Thus, after the birth of her last child and for fear of losing her, the applicant was forced to accept housing in a specialized structure for a month, at the price of 7,000 CZK fixed by the municipality, although the normal price was CZK 2,695 per month. In this respect, the applicants note that in its decision of 28 January 2004, the Constitutional Court took note of, on the one hand, their efforts and, on the other hand, the limits of their capacities. Thus, while the district and regional courts attributed their situation to their lack of responsibility, the constitutional court did not exclude that they were hit by bad luck. The applicants conclude by underlining the trauma suffered by their children as well as their relentless efforts to obtain their return. Appraisal of the Court The Court notes that in November 2000 the applicants ’ five children were provisionally placed in public educational care establishments. This measure was definitively extended by the decisions of 18 April and 22 August 2002 on the ground that the applicants were facing material difficulties and were unable to provide their children with adequate and stable accommodation. In 2003, the oldest child reached majority. In April 2004, the two younger children were placed in foster care where they are today. As for the other two children, their placement was definitively annulled in February 2006, at which date they were able to return to the applicants. According to the Court ’ s established case law, for a parent and their child, being together is a fundamental element of family life ( Kutzner v. Germany, cited above, § 58) and domestic measures which prevent them from doing so constitute an interference with the right protected by Article 8 of the Convention ( K. and T. v. Finland [GC], No. 25702/94, § 51, ECHR 2001-VII). Such interference violates Article 8 unless it is “provided for by law” and it pursues one or more legitimate aims under the second paragraph of that provision and is “necessary, in a democratic society” in order to achieve such aims. The notion of “necessity” implies an interference based on a pressing social need, and in particular proportionate to the legitimate aim sought (see, for example, Couillard Maugery v. France, No. 64796/01, § 237, 1 July 2004). In this case, it is not disputed before the Court that the placement of the children amounted to an “ interference ” in the exercise of the applicants” right to respect for their family life. Based on Article 46 § 1 of the Family Law, the disputed measure was “provided for under the law ”. It is also apparent from the reasons given by the domestic courts that their decisions in this case were aimed at safeguarding the interests of the children. The interference in question therefore pursued a legitimate aim provided for in Article 8 § 2 of the Convention: “ the protection of the rights and freedoms of others ”. In order to assess the “necessity” of the contested measure “in a democratic society”, the Court will consider whether, in the light of the case as a whole, the grounds relied on in support of it were relevant and sufficient with respect to paragraph 2 of Article 8 of the Convention. To this end, it will take into account the fact that breaking up a family constitutes a very serious interference; such a measure must therefore be based on considerations inspired by the interests of the child and having sufficient weight and solidity ( Scozzari and Giunta v. Italy [GC], Nos. 39221/98 and 41963/98, § 148, ECHR 2000-VIII). However, the Court ’ s task is not to substitute itself to the domestic authorities in the exercise of their responsibilities in regulating the issues of the care of children by the public authority and the rights of the parents whose children have been placed, but to review under the Convention the decisions they have made in the exercise of their discretion ( K. and T. v. Finland [GC], cited above, § 154; Couillard Maugery v. France, cited above, § 242). In this context, the Court reiterates that the fact that a child can be accommodated in a context more conducive to his education can not in itself justify being forcibly removed from the care of his biological parents; such interference with the right of parents, under article 8 of the Convention, to enjoy family life with their child must in addition be “ necessary ” because of other circumstances ( K. and T. v. Finland [GC], cited above, § 173, Kutzner v. Germany, cited above, § 69). In addition, Article 8 imposes positive obligations on the State which are inherent to the effective “ respect ” for family life. Thus, where the existence of a family bond is established, the State must in principle act in such a way as to allow such bond to develop and take the necessary measures to reunite the parent and the child concerned ( Kutzner v. Germany, cited above, § 61). In this case, the Court notes that all the national courts, including most recently the Regional Court deciding to terminate the impugned placement of the two older children (see paragraph 35 above), acknowledged that the fundamental problem facing the applicants in this case was to find adequate housing for such a large family. Thus, unlike most of the cases which the Court had the opportunity to examine, the children of the applicants in this case were not exposed to situations of violence or abuse (see, conversely, Dewinne v. Belgium (dec.), No. 56024/00, 10 March 2005, Zakharova v. France (dec.), No. 57306/00, 13 December 2005), and sexual abuse (see, conversely, Covezzi and Morselli v. Italy, No. 52763/99, § 104, May 9, 2003). Neither did the courts find in this case affective deficits (see, conversely, Kutzner v. Germany, cited above, § 68), a worrying state of health or a mental imbalance affecting the parents (see, conversely, Bertrand v. France (dec.), No. 57376/00, 19 February 2002, Couillard Maugery v. France, cited above, § 261). While it is true that in certain cases declared inadmissible by the Court, the placement of the children was motivated by unsatisfactory living conditions or material deprivations, this was never the only ground on which the courts ’ decision was based, and other elements such as the mental imbalance affecting the parents or their emotional, educational and educational incapacity were added to such reason (see, for example, Rampogna and Murgia v. Italy (dec.), No. 40753/98, May 11, 1999, MG and MTA v. Italy (dec.), No. 17421/02, 28 June 2005). In the present case, the applicants ’ educational and emotional capacities have never been called into question and the courts have acknowledged their efforts to overcome their difficulties. Accordingly, the placement of the applicants ’ children was ordered solely because the family at that time occupied inadequate housing. In the Court ’ s opinion, it was therefore a material deficiency which the national authorities could have compensated by means other than the total separation of the family, which seems to be the most drastic measure which can only be applied to the most serious cases. The Court considers that, in order to comply with the proportionality requirement in this case, the Czech authorities should have considered other measures, less radical than the placement of the children. Indeed, the Court considers that the role of the social welfare authorities is precisely to help people in difficulty who do not have the necessary knowledge of the system, to guide them in their efforts and to advise them, among other things, on the different types of social benefits, the possibilities of obtaining social housing or other means of overcoming their difficulties. In the Czech Republic, for example, Article 14 of Law No. 114/1988 tasks the local authorities with identifying persons in need of social assistance (see paragraph 41 above), and the Constitutional Court has also stated in its decision of 28 January 2004 that public institutions should intervene in cases where families were temporarily and through no fault of their own facing a difficult situation. In this case, the national authorities had the opportunity to monitor the applicants ’ living and hygienic conditions, and could have advised them on the steps to be taken so that they themselves could improve the situation and find a solution to their problems. This would have been in line with the Czech social assistance legislation. It is clear that, although the competent authorities were aware of the problems faced by the applicants, they merely followed their efforts and remedied their situation by ordering the placement of the children in a public establishment. Subsequently, the Tábor Department of Social Welfare also insisted on the need to extend this placement (see paragraph 34 above), there being no evidence that it reassessed the applicants ’ situation or had shown a constructive attitude as soon as there were signs of improvement. It is true that, in addition, the applicants criticise the authorities for failing to provide them with social housing. The Government, on the other hand, contended that the applicants had shown a lax attitude and that they had not done enough to obtain an apartment or social allowances (see paragraph 16 above). The Court takes note of the parties ’ differing positions, while noting that the Government has not provided any information concerning the possibility for the applicants to be granted, where appropriate, social housing. In any event, as it considers the placement measure to be disproportionate in this case (see paragraphs 74-75 above), the Court does not consider it necessary to rule on this issue. In view of all of these elements, the Court considers that, although the reasons given by the national authorities and courts were relevant, they were not sufficient to justify this serious interference with the applicants ’ family life which was the placement of their children in public institutions. Moreover, it does not appear from the facts of the case that the social welfare authorities made any serious efforts to help the applicants overcome their difficulties and reunite with their children as soon as possible. Accordingly, there has been a violation of Article 8 of the Convention. ON THE ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION WITH RESPECT TO THE DURATION OF THE PROCEEDINGS The applicants also complain that the length of the “proceedings concerning their children” has breached the principle of “reasonable time” as provided for in Article 6 § 1 of the Convention, which reads as follows: “[E]veryone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law [ ... ] .” First, the Court notes that on 27 April 2006, Law No. 160/2006, which provides for the possibility of awarding compensation for moral damage resulting from the length of the proceedings, entered into force in the Czech Republic. However, the Court does not deem it necessary to consider in this case the question whether this remedy is effective within the meaning of Article 13 of the Convention, and whether the applicants should exercise it, since their grievance is in any event inadmissible for another reason indicated below. The Court reiterates that the reasonableness of the length of proceedings depends on the circumstances of the case and on the criteria established by the Court ’ s case law, in particular the complexity of the case, the conduct of the applicant and that of the competent authorities. On this last point, the stakes of the dispute for the person concerned come into play. It is therefore essential to deal expeditiously with child custody cases; a delay in a given phase may be tolerated provided that the total duration of the proceedings is not excessive ( Nuutinen v. Finland, no 32842/96, § 110, ECHR 2000-VIII, Voleský v. Czech Republic, No. 63267/00, § 102, 29 June 2004). In the present case, the Court considers that the period to be considered began on 2 February 2001, the date on which the tribunal initiated the proceedings relating to the custody of the applicants ’ children. These proceedings ended with the decision of the Constitutional Court of 28 January 2004. It therefore lasted almost three years for three courts, two of which ruled on several occasions. It should be noted in this regard that the proceedings concerning the applicants ’ claims for the annulment of the placement, filed after the lodging of the application with the Court, were a separate proceeding following a change in circumstances alleged by the applicants. The Court considers that the present case was rather complex, in particular because of the need to monitor the evolution of the applicants ’ situation and to reassess the best interests of the children accordingly. As for the behaviour of the lower courts, it is clear that they have acted at a rapid pace. Thus, the first judgment was rendered in the case one month after the initiation of the proceedings; it was vacated six months later (see paragraph 13 above). Then, the District Court only took three months to render the following decision extinguishing the proceedings, which was annulled three months later, on 30 January 2002 (see paragraph 14 above). The new judgment, rendered on 18 April 2002, was confirmed four months later, on 22 August 2002. Therefore, the only specific delay that the authorities could be held responsible for is the lapse of one year and two months between the applicants ’ submission of their constitutional appeal, on 20 November 2002, and the decision of the Constitutional Court of 28 January 2004. However, the issues to be determined by that court were complex in nature, given that part of the appeal (concerning consent to adoption) was upheld, and the decision to place the children in a public establishment became final with res judicata effect of the judgment of 22 August 2002. While it is true that during this whole period (and even after) the applicants continued to be separated from their children and that the stakes were high for them, the Court notes that the prolonged interference in the exercise of the right to respect for family life has already been examined under Article 8 of the Convention. It follows that this ground must be rejected as being manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention. ON THE ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION The applicants also allege that the attitude of the authorities in this case reflects a discriminatory approach towards them, motivated by their social origin and their poverty. “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” The Government contests this argument. The Court notes that this ground, closely related to that raised under Article 8, is based on the same facts as those examined above. It must therefore be declared admissible. Nevertheless, in view of the conclusion reached by the Court under Article 8, it considers that there is no need to examine the case under that provision. ON THE APPLICATION OF ARTICLE 41 OF THE CONVENTION Under Article 41 of the Convention, “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage The applicants claim 1,000,000 Czech crowns (CZK), or approximately 35,150 euros (EUR), for moral damage which they and especially their children allegedly suffered. They ask that the State compensate them for the damage sustained in the amount of 200,000 CZK (7,030 EUR) for each of their children. The Government submits that the applicants make their claim on behalf of their children, which amounts to an actio popularis because the present application has not been lodged by their children. In the alternative, the Government asks the Court to award the applicants an amount corresponding to its case law practice on the subject. The Court notes that the applicants ’ claims relate to compensation for the moral damage that they and their children suffered. It considers that, in so far as the question of non-pecuniary damage requires a fair approach, it would be too formalistic to reject those claims on the ground that the persons concerned claim financial means for their children, and therefore accepts the request in principle. The Court is of the opinion that the applicants have suffered undeniable moral injury as a result of their separation from their children. Given the circumstances of the case and ruling on an equitable basis as required by Article 41, the Courts awards them jointly the amount of 10,000 euros (EUR). Costs and expenses The applicants, who were granted legal aid, do not claim reimbursement of costs and expenses. The Court considers that it is therefore not necessary to rule on this point (see, mutatis mutandis, Králíček v. Czech Republic, No. 50248/99, § 41, 29 June 2004. Default interest The Court considers it appropriate to base the default interest rate on the interest rate on the European Central Bank ’ s marginal lending facility by three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It found that the care order in respect of the applicants’ children had been made solely because the large family had been inadequately housed at the time. Under the social welfare legislation, however, the national social welfare authorities had powers to monitor the applicants’ living conditions and hygiene arrangements and to advise them what steps they could take to improve the situation themselves and find a solution to their housing problem. Separating the family completely on the sole grounds of their material difficulties had been an unduly drastic measure. |
773 | Disciplinary proceedings against health professionals | PROCEEDINGS BEFORE THE COMMISSION 22. Dr Diennet applied to the Commission on 18 April 1991. He alleged a violation of the right to a hearing in public and by an impartial tribunal, guaranteed in Article 6 para. 1 (art. 6-1) of the Convention. 23. The Second Chamber of the Commission declared the application (no. 18160/91) admissible on 2 December 1992 and, under Article 20 para. 4 (art. 20-4) of the Convention, subsequently relinquished jurisdiction in favour of the plenary Commission. In its report of 5 April 1994 (Article 31) (art. 31), it expressed the unanimous opinion that there had been a violation of the right to a hearing in public and, by fourteen votes to nine, the opinion that there had not been a violation of the right to an impartial tribunal. The full text of the Commission's opinion and of the partly dissenting opinion contained in the report is reproduced as an annex to this judgment (1). _______________ 1. Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 325-A of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry. _______________ FINAL SUBMISSIONS TO THE COURT 24. In their memorial the Government asked the Court "to reject Mr Diennet's application". 25. The applicant asked the Court to "hold that in the proceedings which ended with the Conseil d'Etat's judgment of 9 October 1990 there was a twofold violation by France of Article 6 (art. 6) of the European Convention on Human Rights, firstly in that the disciplinary tribunal did not hear his case in public, and secondly in that the disciplinary tribunal was not constituted impartially within the meaning of the said Article 6 (art. 6)". AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE CONVENTION 26. Dr Diennet complained that he had not had a public hearing by an impartial tribunal. He relied on Article 6 para. 1 (art. 6-1) of the Convention, which provides: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice." A. Applicability of Article 6 para. 1 (art. 6-1) 27. It is clear from the Court's settled case-law that disciplinary proceedings in which, as in the instant case, the right to continue to practise medicine as a private practitioner is at stake give rise to "contestations (disputes) over civil rights" within the meaning of Article 6 para. 1 (art. 6-1) (see, among other authorities, the König v. Germany judgment of 28 June 1978, Series A no. 27, pp. 29-32, paras. 87-95; the Le Compte, Van Leuven and De Meyere v. Belgium judgment of 23 June 1981, Series A no. 43, pp. 19-23, paras. 41-51; and the Albert and Le Compte v. Belgium judgment of 10 February 1983, Series A no. 58, pp. 14-16, paras. 25-29). The applicability of Article 6 para. 1 (art. 6-1) to the circumstances of this case, which was in issue before the Commission but was not disputed before the Court, is therefore not in doubt. 28. The Court considers it unnecessary to determine whether, as the applicant maintained, there was any "criminal charge" against him within the meaning of Article 6 para. 1 (art. 6-1) of the Convention: as in the König, Le Compte, Van Leuven and De Meyere, and Albert and Le Compte cases (judgments previously cited, p. 33, para. 96, pp. 23-24, para. 53, and p. 17, para. 30, respectively), those of the Article 6 para. 1 (art. 6-1) rules which the applicant alleged to have been breached apply to both civil and criminal matters. B. Compliance with Article 6 para. 1 (art. 6-1) 29. Dr Diennet submitted that there had been a breach of Article 6 para. 1 (art. 6-1) both because the proceedings before the professional disciplinary bodies had not been public and because one of those bodies had not been impartial. 1. Holding of proceedings in public 30. The applicant complained that the proceedings before the Ile-de-France Regional Council and the disciplinary section of the National Council of the ordre des médecins had not been held in public. 31. The Government did not dispute the fact. They recognised, moreover, that the applicant could not be regarded as having tacitly waived a public hearing by not seeking one, inasmuch as the French rules expressly excluded one (see paragraph 20 above and, among other authorities and mutatis mutandis, the H. v. Belgium judgment of 30 November 1987, Series A no. 127-B, p. 36, para. 54). They considered, nevertheless, that the Conseil d'Etat had compensated for that shortcoming by sitting in public on 15 January 1988 and 15 October 1990. When sitting in disciplinary cases, the Conseil d'Etat had, they continued, powers of review that went beyond questions of law alone since it verified the accuracy of the facts which formed the basis of the charges and the correctness of the legal classification of those facts and also, where appropriate, reviewed the assessment made by the tribunal of fact, by checking that evidence had not been misinterpreted; it had proceeded in that manner in the instant case. In the alternative, the Government argued that, at all events, the misconduct of which the applicant had been accused related directly to practice of the medical profession and therefore came under the exceptions provided for in Article 6 para. 1 (art. 6-1). The disciplinary bodies of the ordre were under a duty to verify the factual accuracy of the charges against the applicant, against whom proceedings had been taken for having issued medical prescriptions for the treatment of obesity without examining his patients or following up their treatment. Specific examples therefore had to be cited during the proceedings, so that inevitably, if these had been held in public, professional confidentiality would have been jeopardised and patients' private lives intruded upon. 32. The Commission, referring to the Court's case-law on the matter, found that there had been a violation of the right to public proceedings. 33. The Court reiterates that the holding of court hearings in public constitutes a fundamental principle enshrined in paragraph 1 of Article 6 (art. 6-1) (see, as the most recent authority, the Schuler-Zgraggen v. Switzerland judgment of 24 June 1993, Series A no. 263, p. 19, para. 58). This public character protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice transparent, publicity contributes to the achievement of the aim of Article 6 para. 1 (art. 6-1), namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention (see, for example, the Sutter v. Switzerland judgment of 22 February 1984, Series A no. 74, p. 12, para. 26). Admittedly, the Convention does not make this principle an absolute one, since by the very terms of Article 6 para. 1 (art. 6-1), "... the press and public may be excluded from all or part of the trial in the interests of morals ..., where the ... protection of the private life of the parties so require[s], or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice". 34. The Court takes account of several factors. Firstly, the Government did not dispute that the hearings before the disciplinary bodies of the ordre des médecins had not been held in public. Secondly, where the Conseil d'Etat hears appeals on points of law from decisions of the disciplinary section of the National Council of the ordre des médecins, it cannot be regarded as a "judicial body that has full jurisdiction", in particular because it does not have the power to assess whether the penalty was proportionate to the misconduct; the fact that hearings before it are held in public is therefore not sufficient to remedy the defect found to exist at the stage of the disciplinary proceedings (see, inter alia and mutatis mutandis, the Albert and Le Compte judgment previously cited, p. 16, para. 29, and p. 19, para. 36). Lastly, while the need to protect professional confidentiality and the private lives of patients may justify holding proceedings in camera, such an occurrence must be strictly required by the circumstances. In the instant case, however, as the applicant and the Commission rightly pointed out, the proceedings were to deal only with the "method of consultation by correspondence" adopted by Dr Diennet (see paragraph 8 above). There was no good reason to suppose that either the tangible results of that method in respect of a given patient or any confidences that Dr Diennet might have picked up in the course of practising his profession would be mentioned. If it had become apparent during the hearing that there was a risk of a breach of professional confidentiality or an intrusion on private life, the tribunal could have ordered that the hearing should continue in camera. At all events, the public was excluded because of the automatic prior application of the provisions of the Decree of 26 October 1948 (see paragraph 20 above). That decree was amended after the events in the instant case had occurred; with a number of strictly defined exceptions, hearings before a body of the ordre in disciplinary proceedings are now held in public (see paragraph 21 above). 35. In sum, there has been a breach of Article 6 para. 1 (art. 6-1) in that the applicant did not receive a "public" hearing before the Ile-de-France Regional Council and the disciplinary section of the National Council of the ordre des médecins. 2. Impartiality 36. The applicant did not contest the personal impartiality of the members of the disciplinary section of the National Council of the ordre des médecins as constituted when his case was referred back to it by the Court of Cassation. On the other hand, he did state that the combination of several factors objectively gave rise to very serious doubts about the impartiality of the section as such: not only had three of its seven members - including the rapporteur - heard the case on appeal but the second decision had been identical with the first one, except for the addition of a paragraph in which an amnesty that had been enacted in the meantime was taken into account. He maintained that the three members in question could have been replaced by substitutes. In this connection, he could not be blamed for not having challenged the three members, as, on the one hand, such a procedure - which was exceptional in French law - would have been bound to fail and, on the other hand, the defect relating to the reasons given for the disciplinary section's second decision did not become apparent to him until the decision was served on him, when he was able to see that it was identical with the first decision. 37. The Government and the Commission referred to the Ringeisen v. Austria judgment of 16 July 1971, according to which "... it cannot be stated as a general rule resulting from the obligation to be impartial that a superior court which sets aside an administrative or judicial decision is bound to send the case back to a different jurisdictional authority or to a differently composed branch of that authority" (Series A no. 13, p. 40, para. 97). The Government said that section 11 of the Law of 31 December 1987 reforming administrative proceedings expressly provided that if the Conseil d'Etat remitted a case to the same tribunal, the latter had to be differently constituted unless the nature of the tribunal made it impossible (see paragraph 17 above); and as it was the one and only body of its kind, the nature of the disciplinary section of the National Council of the ordre des médecins did make it impossible. As to the complaint about the reasoning, the Government pointed out that the first decision had been quashed only on account of a procedural irregularity and no new facts had been relied on after the case had been remitted, so that the similarity of the texts of the two decisions, even taken in conjunction with the membership of the disciplinary section as constituted on the second occasion, likewise did not justify any objective doubts as to the impartiality of the disciplinary section. 38. In the Court's view, no ground for legitimate suspicion can be discerned in the fact that three of the seven members of the disciplinary section had taken part in the first decision (see the Ringeisen judgment previously cited, loc. cit., and paragraph 12 above). Furthermore, even if the second decision had been differently worded, it would necessarily have had the same basis, because there were no new factors. The applicant's fears therefore cannot be regarded as having been objectively justified. 39. There has accordingly been no breach of Article 6 para. 1 (art. 6-1) in this respect. II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION 40. Article 50 (art. 50) of the Convention provides: "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." A. Damage 41. The applicant sought, firstly, 500,000 French francs (FRF) in respect of non-pecuniary damage and FRF 500,000 in compensation for the "harassment" that he had suffered as a consequence of the disciplinary penalty that had been imposed on him. 42. The Delegate of the Commission left the matter to the Court's discretion. However, he pointed out that the applicant's claim was based on the assumption that there had been a double breach of Article 6 para. 1 (art. 6-1), so that it would be appropriate not to award the whole of the amount sought if the Court agreed with the Commission's opinion. 43. Like the Government, the Court considers that the finding of a breach of Article 6 para. 1 (art. 6-1) constitutes in itself sufficient just satisfaction. B. Costs and expenses 44. Dr Diennet also sought FRF 47,000 in respect of the costs and expenses incurred before the French disciplinary and judicial bodies and FRF 30,000, plus FRF 3,720 in value added tax (VAT), in respect of those relating to the proceedings before the Convention institutions. 45. The Government left the matter to the Court's discretion. The Delegate of the Commission did not express a view. 46. Taking into account the fact that it has accepted only one of the complaints and making its assessment on an equitable basis, the Court awards the applicant FRF 20,000 including VAT. | The Court found a violation of Article 6 § 1 (right to a fair trial) of the Convention, because the hearings had not been held in public, and no violation of Article 6 § 1 in respect of the complaint that the disciplinary bodies had not been impartial. |
219 | Access to a lawyer | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Constitution of the Russian Federation 55. An arrested or detained person or a person accused of a criminal offence is entitled to legal assistance from the time of his or her arrest, placement in custody, or when charges are brought (Article 48 § 2). B. The Criminal Code 56. The Criminal Code fixes the age of criminal responsibility at 16 years of age. For certain offences, including extortion, the age of criminal responsibility is fixed at 14 years of age (Article 20). 57. Under Article 43 § 2 of the Code, the purposes of criminal punishment are restoration of social justice, reformation of the offender and the prevention of further crimes. 58. Article 87 § 1 of the Criminal Code regulates the criminal liability of minors, defining them as persons between 14 and 18 years of age, and states that mandatory measures of an educational nature or punishment may be applied to minors who have committed a criminal offence. Article 87 § 2 provides that, where a court relieves a minor of punishment, the minor may still be placed in a special closed educational facility run by a body of the Ministry of Education. C. The Code of Criminal Procedure 59. A suspect or an accused is entitled to legal assistance from the time of arrest (Articles 46 § 4 (3), 47 § 4 (8) and 49 § 3). 60. The presence of a defence lawyer is mandatory if the suspect or the accused is a minor. If neither the minor nor his guardian has retained a defence lawyer, one must be appointed by the police officer, the investigator, the prosecutor or the judge in charge of the case (Article 51 §§ 1 and 3). 61. A defence lawyer must be present during each questioning of the minor suspect. The presence of a psychologist or a teacher is also mandatory if the suspect is under the age of 16. The police officer, investigator or prosecutor in charge of the questioning must ensure that a psychologist or a teacher is present during each questioning (Article 425 §§ 2-4). 62. The guardian of a juvenile suspect is entitled to participate in all investigative actions starting from the first questioning (Article 426 §§ 1 and 2 (3)). 63. Witnesses are to be examined directly by the trial court (Article 278). Statements given by the victim or a witness during the pre ‑ trial investigation can be read out with the consent of the parties in two cases: (i) if there is a substantial discrepancy between those statements and the testimony before the court; or (ii) if the victim or witness has failed to appear in court (Article 281). D. The Minors Act 64. The Federal Law no. 120-FZ on the basic measures for preventing child neglect and delinquency of minors of 24 June 1999 (“the Minors Act”) defines a minor as a person under the age of 18 (section 1). 65. A minor with special educational needs who has committed a delinquent act before reaching the statutory age of criminal responsibility may be placed in a “closed educational institution” for up to three years (section 15(4-7)). The main aims of closed educational institutions are as follows: (i) the accommodation, upbringing and education of minors between eight and 18 years old requiring a special educational approach; (ii) the psychological, medical and pedagogical rehabilitation of minors, as well as individual preventive work; (iii) the protection of the rights and legitimate interests of minors, and the provision of medical care and of secondary and professional education; (iv) the provision of social, psychological and pedagogical assistance to minors with health, behavioural or educational difficulties; (v) the organisation of sports, science or other clubs or sections and encouragement of participation by minors in such clubs or sections; (vi) the implementation of programmes and policies aimed at developing law-abiding behaviour in minors (section 15(2)). 66. A minor may only be placed in a temporary detention centre for juvenile offenders for the shortest possible time necessary for appropriate accommodation to be found, and for a maximum of thirty days (section 22(6)), in the following cases: (i) a minor whose placement in a closed educational institution has been ordered by a court may be placed in a temporary detention centre for juvenile offenders for the time necessary to prepare his transfer to the closed educational institution (section 22(1)(3) and 22(2)(1) and section 31(1)); (ii) a minor in respect of whom a request for placement in a closed educational institution is pending before a court may be placed in a temporary detention centre for juvenile offenders for a period of up to thirty days if it is necessary in order to protect his life or health or to prevent him from committing a further delinquent act, or if he has no fixed residence, has absconded or has failed to appear at court hearings or medical examinations more than twice without a valid reason (sections 22(2)(2) and 26(6)); (iii) a minor who has escaped from a closed educational institution may be placed in a temporary detention centre for juvenile offenders for the time necessary for appropriate accommodation to be found for him (section 22(2)(3)); (iv) a minor who has committed a delinquent act before reaching the statutory age of criminal responsibility may be placed in a temporary detention centre for juvenile offenders if it is necessary in order to protect his life or health or to prevent him from committing a further delinquent act, or if his identity is unknown, he has no fixed place of residence, resides in a region other than the one where the delinquent act was committed, or if he cannot be immediately placed in the charge of his parents or guardians owing to the remoteness of their place of residence (section 22(2)(4-6)). 67. The main aims of temporary detention centres for juvenile offenders are as follows: (i) the temporary detention of juvenile offenders with the aim of protecting their life and health and preventing them from committing further delinquent acts; (ii) individual preventive work with minors with the aim of discovering whether they are involved in the commission of delinquent acts, establishing the circumstances, reasons and conditions conducive to such acts, and informing the competent law-enforcement authorities; (iii) the transfer of minors to closed educational institutions and other measures aimed at finding accommodation for minors temporarily placed in the centre’s care (section 22(1)). 68. Placement in a temporary detention centre for juvenile offenders is to be ordered by a judge (section 22(3)(2)) at the request of the local department of the interior, which must submit the following materials in support of the request: evidence confirming that the minor has committed a delinquent act; materials indicating the aims of, and reasons for, the placement of the minor in the temporary detention centre for juvenile offenders; and materials confirming that such placement is necessary to protect the life or health of the minor or to prevent him from committing a further delinquent act (section 31.1). The minor and his parents or guardian are entitled to study these materials. The materials are then examined by a single judge at a hearing with the participation of the minor concerned, his parents or guardian, defence lawyer, a prosecutor, and representatives of the local department of the interior and of the temporary detention centre for juvenile offenders. The judge issues a reasoned decision either granting or rejecting the request for the placement of the minor in the temporary detention centre for juvenile offenders (section 31.2). The minor or his parents, guardian, or defence lawyer may, within ten days, appeal against the decision to a higher court (section 31.3). E. The Instruction on temporary detention centres for juvenile offenders 69. The Instruction on the organisation of the activities of temporary detention centres for juvenile offenders, adopted by Order no. 215 of the Ministry of the Interior on 2 April 2004 (in force at the material time), provided that temporary detention centres for juvenile offenders were to be managed by the local departments of the interior (§ 4). 70. On admission to a temporary detention centre for juvenile offenders, the minor and his belongings had to be searched. Prohibited belongings had to be confiscated, while money, valuables and other belongings had to be deposited with the centre’s accountant (§§ 14-15). 71. Temporary detention centres had to be enclosed and the enclosures equipped with an alarm system and an entry checkpoint (§ 19). The disciplinary regime was maintained by a duty squad (§ 22). 72. The director of the temporary detention centre for juvenile offenders was responsible for security arrangements, which had to ensure the twenty ‑ four-hour surveillance of inmates, including while asleep, and had to exclude any possibility of unauthorised leaving of the premises by inmates (§ 39). 73. A personal file had to be opened in respect of each minor and contain the following information: the documents which served as the basis for the minor’s admission to the centre, the search report, the record of preventive work carried out and of rewards and punishment applied, the medical certificates documenting the minor’s condition on admission, and any others (§ 18). Personal files had to be stored for two years and be destroyed after the expiry of that time-limit (Appendix no. 5). 74. The temporary detention centre’s “accounting and statistical records” for each minor had to be kept indefinitely in the centre (Appendix 4, endnote 2). 75. If appropriate, individual preventive work might be carried out with the minors, taking into account their age, conduct, the gravity of the delinquent acts committed and other circumstances (§ 24). In order to make the preventive work more efficient, incentives and punishment might be applied to minors (§ 25). 76. With the aim of preventing delinquency, the staff of temporary detention centres for juvenile offenders might take the following measures in the context of preventive work: (i) establishing the living and educational conditions of the minor’s family, the minor’s personal qualities and interests, his or her reasons for running away from home or for abandoning school, and the facts of the minor’s participation in the commission of any delinquent acts and the circumstances in which they were committed, including information on any accomplices and how any stolen property was disposed of; (ii) passing to the law-enforcement authorities any information concerning those involved in delinquent acts, or any other information that may contribute to the investigation of such delinquent acts; (iii) taking individual educational measures, with particular emphasis on developing positive qualities and interests, to combat any defects of character and to motivate the minors in studying and working (§ 26). III. RELEVANT INTERNATIONAL MATERIALS A. Council of Europe 77. The relevant parts of Recommendation No. R (87) 20 on social reactions to juvenile delinquency, adopted by the Committee of Ministers on 17 September 1987, state as follows. “... Considering that young people are developing beings and in consequence all measures taken in their respect should have an educational character; Considering that social reactions to juvenile delinquency should take account of the personality and specific needs of minors and that the latter need specialised interventions and, where appropriate, specialised treatment based in particular on the principles embodied in the United Nations Declaration of the Rights of the Child; ... Convinced that minors must be afforded the same procedural guarantees as adults; ... Recommends the governments of member states to review, if necessary, their legislation and practice with a view: ... THE LAW I. SCOPE OF THE CASE BEFORE THE GRAND CHAMBER 90. In their submissions before the Grand Chamber, the Government invited the Court to refine the Chamber’s reasoning in respect of the applicant’s complaint under Article 5 § 4 of the Convention relating to the hearing of 11 April 2005. For his part, the applicant maintained his complaints under Article 6 of the Convention that he had had insufficient time to study the case file and that the court-appointed counsel had been ineffective. 91. The Court observes that, according to its case-law, the “case” referred to the Grand Chamber is the application as it has been declared admissible (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 109, ECHR 2007-IV, and K. and T. v. Finland [GC], no. 25702/94, § 141, ECHR 2001-VII). It notes that, in its judgment of 14 November 2013, the Chamber declared inadmissible the applicant’s complaints under Article 6 that he had had insufficient time to study the case file and that the court-appointed counsel had been ineffective, as well as his complaint under Article 5 § 4 relating to the hearing held on 11 April 2005. Accordingly, these complaints are not within the scope of the case before the Grand Chamber. II. THE GOVERNMENT’S PRELIMINARY OBJECTIONS 92. The Government, in their written submissions of 20 May 2014, contended for the first time that the applicant had neither exhausted domestic remedies nor complied with the six-month time-limit as required by Article 35 § 1 of the Convention in respect of his complaints under Article 3 of the Convention, and his complaints under Article 6 relating to the pre-investigation inquiry. A. Exhaustion of domestic remedies 93. Concerning the applicant’s complaint under Article 3 of the Convention relating to the alleged lack of medical care in the temporary detention centre, the Government submitted that, after his release, the applicant could have instituted civil proceedings which was a domestic remedy capable of affording him adequate redress in the form of monetary compensation for any damage caused to him. 94. Regarding the applicant’s complaints under Article 6 relating to the pre-investigation inquiry, the Government contended that the applicant had failed to lodge a complaint with the domestic courts under Article 125 of the Code of Criminal Procedure of the Russian Federation, according to which anyone whose legitimate rights and interests had been affected by a decision not to institute criminal proceedings could appeal against that decision to a court. 95. The applicant did not expressly respond to the Government’s objections, but submitted that the Chamber had made a correct assessment of his complaints. 96. The Court reiterates that, in accordance with Rule 55 of the Rules of Court, any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application (see Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 79, 17 July 2014; Sejdovic v. Italy [GC], no. 56581/00, § 41, ECHR 2006 ‑ II; and K. and T. v. Finland, cited above, § 145). The Chamber ruled on the admissibility and merits of the application in its judgment of 14 November 2013. The Court observes that the Government did not raise either of these two objections in their observations on the admissibility and merits of the case before the Chamber, or at any other point during the Chamber proceedings. 97. The Government have not claimed that there were any exceptional circumstances that could have dispensed them from the obligation to raise these objections in a timely manner. The Court therefore holds that the Government are estopped from raising their preliminary objections of non-exhaustion of domestic remedies at the present stage of the proceedings (see Svinarenko and Slyadnev, § 82, and Sejdovic, § 42, both cited above). 98. The Government’s preliminary objections must therefore be rejected. B. Six-month time-limit 99. The Government contended that the applicant had failed to lodge with the Court his complaint under Article 3 relating to the lack of medical care in the temporary detention centre within the six-month time-limit provided for in Article 35 § 1 of the Convention. They submitted that the applicant’s grandfather had only raised this complaint, in a summary fashion, in a letter of 30 November 2005 to the prosecution authorities who had replied on 16 December 2005, more than six months before the application was lodged on 1 November 2006. 100. According to the Government, the applicant had also failed to comply with the six-month time-limit with regard to his complaint under Article 6 relating to the pre-investigation inquiry, since the revised ruling refusing to initiate criminal proceedings against the applicant had been made on 6 July 2005 and a reply to the applicant’s grandfather’s last complaint concerning this matter to the prosecution authorities had been given on 16 December 2005. 101. The applicant did not address the Government’s objections but maintained that the Chamber’s judgment was correct. 102. The Government did not raise their objections as to non-compliance with the six-month rule in the proceedings before the Chamber, and the Chamber did not examine the issue. However, the Court has already held that the six-month rule is a public policy rule and that, consequently, it has jurisdiction to apply it of its own motion (see Sabri Güneş v. Turkey [GC], no. 27396/06, § 29, 29 June 2012; Svinarenko and Slyadnev, cited above, § 85; Blečić v. Croatia [GC], no. 59532/00, § 68, ECHR 2006-III; and Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000 ‑ I ). Furthermore, the Court has decided that, notwithstanding the requirements of Rule 55, Governments are not estopped from raising the issue of the six-month rule before the Grand Chamber (see Sabri Güneş, cited above, § 30). 103. Consequently, the Grand Chamber has jurisdiction to examine the issue of compliance with the six-month rule in relation to the applicant’s complaints under Article 3 of the Convention as well as under Article 6 concerning the pre-investigation inquiry. 1. Compliance with the six-month time-limit in respect of the applicant’s complaints under Article 3 of the Convention (a) The parties’ submissions 104. The Government submitted that it appeared from paragraph 40 of the Chamber judgment that the applicant’s grandfather had lodged only one complaint with the prosecution authorities, dated 4 October 2005, concerning the quality of medical care in the temporary detention centre. This was more than one year prior to the applicant lodging the application with the Court on 1 November 2006. However, the Government argued that the complaint of 4 October 2005 had not contained any grievances concerning the lack of medical care and, moreover, a reply had been prepared on 9 November 2005 by the prosecutor’s office of the Sovetskiy district of Novosibirsk. Furthermore, they stated that a similar complaint, in which the grievances had been set out in a summary fashion and sent by the applicant’s grandfather to the prosecution authorities on 30 November 2005, had been replied to on 16 December 2005 by the prosecutor’s office of the Novosibirsk region. However, the Government stressed that this was still outside the six ‑ month time-limit. 105. The applicant did not reply to this objection in his submissions to the Grand Chamber. (b) The Court’s assessment 106. The Court reiterates that, as a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (see Dennis and Others v. the United Kingdom (dec.), no. 76573/01, 2 July 2002). Moreover, Article 35 § 1 cannot be interpreted in a manner which would require an applicant to seize the Court of his complaint before his position in connection with the matter has been finally settled at the domestic level. Where, therefore, an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period from the date when the applicant first became or ought to have become aware of those circumstances (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 157, ECHR 2009, and Edwards v. the United Kingdom (dec.), no. 46477/99, 7 June 2001). 107. Turning to the present case, the Court has to ascertain whether the applicant had an effective remedy available to him and, if so, whether he made use of it and then seized the Court within the required time-limit. In doing so, the Court will not consider whether the applicant should have made use of civil proceedings since it has found above (see paragraphs 96 ‑ 98) that the Government are estopped from raising an objection of non-exhaustion at this stage of the proceedings. 108. The Court notes at the outset that, on 28 February 2005, the applicant’s grandfather lost his status as the applicant’s guardian and that he was only reinstated at some point at the beginning of 2006. Thus, during the entire period when the grandfather was not the guardian, the applicant appears to have been under the guardianship of the State, and the grandfather had no legal rights to represent the applicant or defend his interests. Since the applicant was released from the temporary detention centre for juvenile offenders on 23 March 2005, he had at that time only the State to protect his interests. Consequently, the authorities were under no legal obligation during that period of time to reply to the grandfather’s complaints concerning the applicant since he was not his guardian. 109. However, the Court observes that the grandfather continued to endeavour to protect the applicant’s interests. Hence, it appears from the grandfather’s letter of 30 November 2005 to a Deputy Prosecutor General that he had been informed that his complaint of 4 October 2005 to the Prosecutor General had been sent to various prosecutors’ offices. Moreover, in his letter of 30 November 2005, the grandfather did indeed repeat the complaints regarding the applicant’s treatment in the temporary detention centre and his poor health which he had already set out in his previous letter of 4 October 2005 (see paragraph 46 above). The Court notes that the prosecutor’s reply of 9 November 2005 and the regional prosecutor’s reply of 16 December 2005 nevertheless contained no information in response to the grandfather’s complaints concerning the applicant’s medical condition or the authorities’ failure to treat him while in the temporary detention centre for juvenile offenders. 110. Furthermore, the Court has regard to the fact that, once reinstated as the applicant’s guardian, the grandfather pursued the matter of the legality of the applicant’s detention and, within the framework of those proceedings, raised the issue of the applicant’s frail health and the lack of medical treatment. In particular, in the complaint against the decision of 21 February 2005, which was examined by the President of the Novosibirsk Regional Court on 29 May 2006, the grandfather cited the applicant’s diagnosis and the impossibility for him of being detained in the absence of medical advice. The President of the Regional Court responded in its judgment that the fact that the applicant suffered from various illnesses could not serve as a ground for quashing the decision of 21 February 2005, given that it had already been enforced in March 2005. 111. Against this background the Court finds that, in the absence of any answer from the prosecutors’ offices to the grandfather’s complaints in October and November 2005, the grandfather, once reinstated as the applicant’s guardian, used other possible avenues to argue the applicant’s case pertaining to his poor health and the lack of medical treatment in the temporary detention centre. Since the only concrete answer he received to that complaint was through the judgment of 29 May 2006 when, in essence, he was told that there was no point in complaining any further as the applicant’s detention had already ended, the Court considers that, in the specific circumstances of the present case, the six-month period should be calculated from that date, as further complaints to the authorities would have had no prospects of success. Noting that the application was lodged with the Court on 1 November 2006, it follows that the applicant’s complaints under Article 3 fall within the six-month time-limit. 112. The Government’s objection must therefore be dismissed. 2. Compliance with the six-month time-limit in respect of the applicant’s complaints under Article 6 concerning the pre-investigation inquiry (a) The parties’ submissions 113. The Government submitted that the applicant had failed to comply with the six-month time-limit in so far as his complaint under Article 6 related to the pre-investigation inquiry, since the revised ruling refusing to initiate criminal proceedings against the applicant had been made on 6 July 2005 and a reply to the applicant’s grandfather’s last complaint on this matter to the prosecution authorities had been given on 16 December 2005. 114. In this regard, the Government stressed that the present case involved two separate sets of proceedings, not one as found by the Chamber in its judgment. The first of these – the pre-investigation inquiry, conducted in accordance with Chapters 19 and 20 of the Code of Criminal Procedure – was to verify information on an alleged crime and decide whether there was sufficient evidence that a crime had been committed and whether to institute criminal proceedings. The second set – the proceedings deciding on the placement of the applicant in the temporary detention centre, conducted in accordance with Chapter 3.1 of the Minors Act – did not require a pre-investigation inquiry to be conducted and were not limited in scope to information obtained during the inquiry. Thus, the outcome of the first set of proceedings did not, in itself, constitute a decisive ground for initiating the second set of proceedings, as exemplified in the applicant’s case where only the last two inquiries, out of five, had been followed by the second set of proceedings for his placement in the temporary detention centre, and then because it had become obvious that other preventive measures had been unsuccessful. Hence, the Government found no grounds for treating the two sets of proceedings as a single process, as the Chamber had done in its judgment, and argued that the applicant’s complaints under Article 6 should be examined separately in respect of each set of proceedings in question. 115. The applicant did not explicitly address the Government’s objection or whether the two sets of proceedings should be considered separately or together. However, he maintained that the Chamber’s judgment was correct and should be followed. (b) The Court’s assessment 116. The Court will firstly consider the Government’s claim that the pre-investigation inquiry and the proceedings leading to the applicant’s placement in the temporary detention centre should be considered separately, since the result on this point will determine whether or not the Court needs to consider the Government’s objection relating to the six-month rule. 117. While the Court acknowledges that the pre-investigation inquiry and the placement proceedings were, formally, two unrelated procedures, governed by separate legal rules, it notes that in the present case there was a close link, both in law and in fact, between them. In particular, the domestic courts gave as the main reason for the applicant’s placement in the temporary detention centre that he had committed a delinquent act punishable by the Criminal Code. The District Court referred at length to the witness statements made by S. and his mother in its judgment, and relied on those and the pre-investigation inquiry’s findings when making its ruling (see paragraph 27 above). Moreover, both the District Court and the Regional Court found that the placement of the applicant in the temporary detention centre was necessary to prevent him from committing further delinquent acts, which shows that the placement was a direct consequence of the outcome of the pre-investigation inquiry. 118. Consequently, the Court finds that the two sets of proceedings should be considered together as a single set of proceedings for the purposes of the present case, and will proceed with its examination of the applicant’s complaints under Article 6 on this basis. The Government’s objection as to compliance with the six-month time-limit in relation to the pre-investigation inquiry must, therefore, be rejected since the final domestic decision, regarding the proceedings as a whole, was taken on 29 May 2006 when the President of the Novosibirsk Regional Court upheld the initial judgment ordering the applicant’s placement in the temporary detention centre for juvenile delinquents. Since the application was lodged with the Court on 1 November 2006, it was introduced within the six-month time-limit. 119. The Government’s objection must therefore be dismissed. III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 120. The applicant complained that he had not received adequate medical care while in the temporary detention centre for juvenile offenders and that the conditions of his detention there had been inhuman, contrary to Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The Chamber judgment 121. The Chamber found that the lack of adequate medical treatment for the applicant in the temporary detention centre for juvenile offenders amounted to inhuman and degrading treatment contrary to Article 3. It noted in particular that, despite its request for a copy of the applicant’s medical records from the temporary detention centre, the Government had failed to produce one, claiming that the records had been destroyed in accordance with domestic regulations which had not been submitted to the Court or published or made accessible to the public. Moreover, the Chamber observed that the normal time-limit for storage of medical records was ten years in the Russian Federation. Thus, since the applicant’s grandfather had repeatedly informed the authorities of the applicant’s health problems, the Chamber found no reason to doubt that the staff at the temporary detention centre had been made aware of his state of health. There was no evidence that the applicant had been examined during his detention by a neurologist or psychiatrist or that he had received any of his prescribed medication. The Chamber found this lack of medical attention, resulting in the applicant being hospitalised a day after his release, unacceptable. 122. In view of its finding of a violation due to the lack of medical treatment, the Chamber did not consider it necessary to examine the remainder of the applicant’s complaints under Article 3. B. The parties’ submissions 1. The applicant 123. The applicant emphasised that, at the time of being placed in the temporary detention centre for juvenile offenders, he was suffering from neurosis, ADHD, psychopathic conduct and enuresis. While he acknowledged that these conditions did not require immediate medical aid at the time of being detained, he emphasised that the pressure exerted on him throughout his detention at the police station and the questioning there, together with the thirty days at the temporary detention centre, had resulted in a sharp exacerbation of all of his conditions and an immediate need for medical treatment. This had been proved by the medical certificates submitted by him during the proceedings before the Chamber, which confirmed that he had been forcibly hospitalised in a psychiatric hospital immediately upon release from the temporary detention centre. He argued that there were no other possible causes for the worsening of his conditions. 124. In his view, the Russian authorities had failed to take timely measures to avoid his illnesses getting worse. In particular, he alleged that, when requesting that he be placed in the temporary detention centre, the head of the Sovetskiy district Police Department was required to submit to the District Court a decision by the relevant health-care facility on the presence or absence of contraindications of a medical nature, including a psychiatric examination, against placing him in the temporary detention centre. However, no such decision had been submitted either to the court or the temporary detention centre. 125. The applicant further maintained his submissions before the Chamber, claiming that both he and his grandfather had informed the teachers and employees of the temporary detention centre of his illnesses and had asked that he have unrestricted access to the bathroom. However, this had been ignored and he had suffered badly, both psychologically and physically, owing to his enuresis. 126. Having regard to all of the circumstances of his case, the applicant maintained that the conditions in the temporary detention centre for juvenile offenders, at the time of his stay there, had been incompatible with the requirements of Article 3 of the Convention. 2. The Government 127. The Government maintained that the applicant’s complaints under Article 3 did not disclose any violation of that provision. 128. They reiterated that the applicant’s personal file from the temporary detention centre for juvenile offenders, which might have included a medical record describing the applicant’s health on admission, had been destroyed in accordance with the instructions in force at the time (see paragraph 73 above). Moreover, other medical records and logbooks from the temporary detention centre for the period of the applicant’s stay had been destroyed as soon as they were no longer “needed”, as no time-limits for keeping such documents existed at the material time. Order no. 340 of 12 May 2006, referred to in paragraph 34 of the Chamber judgment, had come into force only after those documents had been destroyed. 129. However, the Government noted that the applicant’s “accounting and statistical record” from his stay at the temporary detention centre in September 2004 and in February 2005 had been retained since its storage period was unlimited in accordance with Order no. 215 of 2 April 2004 (see paragraph 74 above). According to the Government, the Court had mistakenly called these records “medical records” in paragraphs 32 and 90 of the Chamber judgment and had therefore reached a wrong conclusion in paragraph 90. 130. They further stated that, since they had only been given notice of the present case on 1 October 2010, more than five and a half years after the events in question and following the destruction of most of the relevant records, they had to rely on the report by the head of the temporary detention centre, dated 28 December 2010, and the explanation of a supervisor at the same centre, dated 23 December 2010 (see paragraph 41 above). From these documents it appeared that all children kept at the temporary detention centre, including the applicant, had been examined daily by the medical staff. This was further supported by the “daily routine” approved on 17 January 2013 and submitted to the Court. Moreover, children could ask for medical assistance at any time; there were properly equipped medical rooms; access to toilets was not restricted; and special night-time arrangements were made for children suffering from enuresis. No complaints had been made by the applicant concerning any of these matters during his stay at the temporary detention centre. In this respect, the Government pointed out that minors kept in the temporary detention centre could receive unrestricted visits and telephone calls from their relatives, provided that they did not interfere with the activities foreseen in the daily schedule. The applicant’s grandfather had never claimed to have been prevented from visiting the applicant and did not appear to have made any written or oral complaints during such visits. 131. Lastly, the Government submitted that, according to the staff schedule of the temporary detention centre in force from 18 June 2003 to 3 October 2005, a psychiatrist, a paediatrician, a doctor’s assistant and a nurse were present at the centre. An information note further stated that the quality of medical care and the living conditions at the temporary detention centre had not been subject to any departmental or other inspection during 2004 or 2005. In view of all of the above, and since the applicant had not submitted any documents to substantiate his claims, the Government argued that there was no indication that the temporary detention centre was not suitable to accommodate, for a maximum period of thirty days, a child suffering from enuresis and a behavioural disorder. 132. With regard to the applicant’s health, the Government pointed out that his enuresis was not mentioned in any medical documents submitted by the applicant (issued after 2003) nor in the applicant’s “accounting and statistical record” from the temporary detention centre. Moreover, the degree of manifestation of this illness was not mentioned in any of the available documents. Turning to the applicant’s behavioural disorder, the Government noted that, according to the extract from medical history no. 3624 (submitted by the applicant to the Court in October 2007), the applicant had suffered from a social behavioural disorder at the material time which seemed to be a result of external factors rather than of his other illnesses. In their view, the applicant had failed to submit any medical certificate to substantiate the allegation that this disorder prevented his placement in the temporary detention centre. He had also failed to produce a report by a medical expert confirming that his stay at the temporary detention centre had caused his health to deteriorate. 133. Consequently, the Government considered that the applicant’s complaints did not disclose a violation of Article 3. 3. The third-party intervener 134. The Mental Disability Advocacy Center (“the MDAC”) stressed that children with mental disabilities faced a “double disadvantage” – both as children and as individuals with mental disabilities. These children were particularly vulnerable to violations of their rights and had additional needs which had to be protected through stringent and effective safeguards. The MDAC referred to the United Nations Convention on the Rights of Persons with Disabilities (adopted on 13 December 2006, UNTS 2515 – “the CRPD”) and in particular its main object to ensure equality and non-discrimination in all domains (Article 5 § 2). It further referred to the CRC, emphasising that the best interests of the child should always be a primary consideration and that States Parties undertook to ensure the child such protection and care as was necessary for his or her well-being (Article 3 – see paragraph 81 above). Moreover, Article 23 of the CRC specifically related to children with disabilities and the MDAC observed that the Committee on the Rights of the Child, in its General Comment No. 9 (2006), set out further guidance as to the treatment of children with disabilities in conflict with the law. Thus, the Committee stated that “children with disabilities in conflict with the law should not be placed in a regular juvenile detention centre by way of pre-trial detention nor by way of a punishment” (see paragraph 83 above). The MDAC emphasised that the Court had held that States had an obligation to take particular measures to provide effective protection of vulnerable persons from ill-treatment of which the authorities had or ought to have had knowledge (they referred to Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001-V). C. The Court’s assessment 1. General principles 135. The Court reiterates that Article 3 of the Convention enshrines one of the fundamental values of democratic society, prohibiting in absolute terms torture or inhuman or degrading treatment or punishment (see, among other authorities, Stanev v. Bulgaria [GC], no. 36760/06, § 201, ECHR 2012). However, to come within the scope of the prohibition contained in Article 3, the treatment inflicted on or endured by the victim must reach a minimum level of severity. The assessment of this minimum level of severity is a relative one, depending on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see M.S. v. the United Kingdom, no. 24527/08, § 38, 3 May 2012, and Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001 ‑ VII). 136. Article 3 further imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty by, among other things, providing them with the requisite medical care (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000 ‑ XI; Mouisel v. France, no. 67263/01, § 40, ECHR 2002-IX; and Khudobin v. Russia, no. 59696/00, § 93, 26 October 2006). Thus, the Court has held on many occasions that lack of appropriate medical care may amount to treatment contrary to Article 3 (see, for example, M.S. v. the United Kingdom, cited above, §§ 44 ‑ 46; Wenerski v. Poland, no. 44369/02, §§ 56-65, 20 January 2009; and Popov v. Russia, no. 26853/04, §§ 210-13 and 231-37, 13 July 2006). 137. In this connection, the “adequacy” of medical assistance remains the most difficult element to determine. The Court reiterates that the mere fact that a detainee is seen by a doctor and prescribed a certain form of treatment cannot automatically lead to the conclusion that the medical assistance was adequate (see Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 116, 29 November 2007). The authorities must also ensure that a comprehensive record is kept concerning the detainee’s state of health and his or her treatment while in detention (see Khudobin, cited above, § 83 ), that diagnosis and care are prompt and accurate (see Melnik v. Ukraine, no. 72286/01, § § 104-06, 28 March 2006, and Hummatov, cited above, § 115), and that, where necessitated by the nature of a medical condition, supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at adequately treating the detainee’s health problems or preventing their aggravation, rather than addressing them on a symptomatic basis (see Popov, cited above, § 211; Hummatov, cited above, §§ 109 and 114; and Amirov v. Russia, no. 51857/13, § 93, 27 November 2014 ). The authorities must also show that the necessary conditions were created for the prescribed treatment to be actually followed through (see Holomiov v. Moldova, no. 30649/05, § 117, 7 November 2006, and Hummatov, cited above, § 116). Furthermore, medical treatment provided within prison facilities must be appropriate, that is, at a level comparable to that which the State authorities have committed themselves to provide to the population as a whole. Nevertheless, this does not mean that every detainee must be guaranteed the same level of medical treatment that is available in the best health establishments outside prison facilities (see Cara-Damiani v. Italy, no. 2447/05, § 66, 7 February 2012). 138. On the whole, the Court reserves sufficient flexibility in defining the required standard of health care, deciding it on a case-by-case basis. That standard should be “compatible with the human dignity” of a detainee, but should also take into account “the practical demands of imprisonment” (see Aleksanyan v. Russia, no. 46468/06, § 140, 22 December 2008). When dealing with children, the Court considers that, in line with established international law, the health of juveniles deprived of their liberty shall be safeguarded according to recognised medical standards applicable to juveniles in the wider community (see, for example, Rules 57, 62.2, 62.5, 69.2, and 73 (d) of the 2008 European Rules for juvenile offenders subject to sanctions or measures, Article 3 § 3 of the CRC, and Rules 49-53 of the Havana Rules in paragraphs 79, 81 and 87 above). The authorities should always be guided by the child’s best interests, and the child should be guaranteed proper care and protection. Moreover, if the authorities are considering depriving a child of his or her liberty, a medical assessment should be made of the child’s state of health to determine whether or not he or she can be placed in a juvenile detention centre. 139. The Court further stresses that allegations of ill-treatment must be supported by appropriate evidence. In assessing evidence, the Court has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems that use that standard. Its role is not to rule on criminal guilt or civil liability but on Contracting States’ responsibility under the Convention. In the proceedings before the Court, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005 ‑ VII, with further references; Labita v. Italy [GC], no. 26772/95, § 121, ECHR 2000 ‑ IV; Amirov, cited above, § 80; and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 121, 10 January 2012). 140. In this connection it should be noted that the Court has held that Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation). According to the Court’s case-law under Articles 2 and 3 of the Convention, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries, damage and death occurring during that detention. The burden of proof in such a case may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999 ‑ IV; Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII; and Amirov, cited above, § 92 ). In the absence of such an explanation the Court can draw inferences that may be unfavourable for the respondent Government (see, for instance, Orhan v. Turkey, no. 25656/94, § 274, 18 June 2002, and Buntov v. Russia, no. 27026/10, § 161, 5 June 2012). 2. Application to the present case 141. The Court notes from the outset that both the applicant’s young age and his state of health are circumstances of relevance in assessing whether the minimum level of severity has been attained (see paragraph 135 above) and it will have particular regard to the principles set out in paragraph 138 above. 142. In the present case, the Court notes that the Government have submitted numerous documents in support of their submissions before the Grand Chamber to show that the conditions at the temporary detention centre were good and that medical treatment was provided. However, the great majority of these documents date from 2008 to 2014, several years after the applicant’s stay at the temporary detention centre and, consequently, do not shed light on the conditions in the centre during his placement there. Moreover, as concerns the report by the head of the temporary detention centre, dated 28 December 2010, and the explanation of a supervisor at the centre, dated 23 December 2010, the Court finds it unlikely that they would remember whether or not one child, who had stayed at the temporary detention centre for thirty days almost six years earlier, had complained of the conditions or access to the toilets. It has also on previous occasions found that reports or certificates like those submitted by the Russian Government were of little evidentiary value as they lacked references to original documentation held by the relevant prison or detention centre (see Ananyev and Others, cited above, § 124, with further references). 143. Thus, while the Court does not question the submission that some of the documents from the temporary detention centre relating to the applicant may have been destroyed in accordance with the relevant rules in force at that time, this does not absolve the Government from the obligation to support their factual submissions with appropriate evidence (ibid., § 125). 144. The parties have submitted a number of relevant documents that allow the Court to examine the applicant’s complaints in depth. In particular, it finds it established through the medical certificates submitted by the applicant that he was examined by a neurologist and a psychiatrist on 27 December 2004 and 19 January 2005, that is, only slightly over a month before being placed in the temporary detention centre. At that time, medication was prescribed for him, as well as regular supervision by a neurologist and a psychiatrist and regular psychological counselling for his ADHD. It has further been established through medical records that the applicant was hospitalised the day after his release from the temporary detention centre and treated for neurosis and ADHD. He remained in hospital at least until 12 April 2005, thus for approximately three weeks. 145. Moreover, the Court notes that the applicant’s grandfather submitted medical certificates at the detention hearing on 21 February 2005 to show that the applicant suffered from ADHD, thereby ensuring that the authorities were aware of his condition. In this connection, the Court observes that an officer from the Juveniles Inspectorate was present at the hearing on 21 February 2005 and that, in accordance with section 31.2 of the Minors Act, a representative of the temporary detention centre was also required to be present. Since the applicant’s grandfather drew attention to the applicant’s medical condition during the hearing, the relevant authorities responsible for the applicant’s placement at the temporary detention centre were made aware of his condition. 146. Thus, even if the applicant’s personal file from the temporary detention centre has been destroyed, the Court considers that there is sufficient evidence to show that the authorities were aware of the applicant’s medical condition upon his admission to the temporary detention centre and that he was in need of treatment. Moreover, the fact that he was hospitalised the day after his release, and kept in the psychiatric hospital for almost three weeks, provides an indication that he was not given the necessary treatment for his condition at the temporary detention centre. The applicant has thereby provided the Court with a prima facie case of lack of adequate medical treatment. Having regard to the considerations set out above (see paragraphs 142-43 above) concerning the documents submitted by the Government and the lack of any other convincing evidence, the Court finds that the Government have failed to show that the applicant received the medical care required by his condition during his stay at the temporary detention centre where he was kept for thirty days without the right to leave and entirely under the control and responsibility of the staff at the centre. In these circumstances, the authorities were under an obligation to safeguard the applicant’s dignity and well-being, and are responsible under the Convention for the treatment he experienced (see M.S. v. the United Kingdom, cited above, § 44). 147. As concerns the applicant’s enuresis, the Court notes that it is not mentioned in the medical certificates of 27 December 2004 and 19 January 2005 and that it was not the reason for his hospitalisation following his detention. Thus, in the Court’s view, the applicant has not submitted sufficient prima facie evidence to show whether and, if so, to what extent he suffered from enuresis on admission to the temporary detention centre and whether the personnel at the centre were, or should have been, aware of it. Since most of the medical certificates and files from the temporary detention centre concerning the applicant have been destroyed, it appears difficult to obtain any clarification on this point. On the other hand, the Court has already found it established that the applicant suffered from ADHD. 148. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of the applicant’s rights under Article 3 on account of the lack of necessary medical treatment at the temporary detention centre for juvenile offenders, having regard to his young age and particularly vulnerable situation, suffering as he was from ADHD. 149. There has, accordingly, been a violation of Article 3 of the Convention. 150. In view of this finding of a violation of Article 3, and like the Chamber in its judgment, the Court does not find it necessary to examine the remainder of the applicant’s complaints under this provision. IV. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 151. The applicant complained that his detention in the temporary detention centre for juvenile offenders had violated Article 5 § 1 of the Convention, which reads as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” A. The Chamber judgment 152. In its judgment, the Chamber found that the applicant’s placement in the temporary detention centre amounted to a deprivation of liberty since the centre was closed and guarded, inmates were routinely searched on admission, all personal belongings were confiscated, and a disciplinary regime was applied to the inmates. 153. The Chamber further considered that the detention had not been intended for educational supervision within the meaning of Article 5 § 1 (d) since, under domestic law, temporary detention centres were designed for the temporary detention of minors while more appropriate accommodation was being sought, such as a return to the family or placement in an educational institution. Moreover, domestic law did not provide for any educational activities in the centres. Thus, the Chamber concluded that the temporary detention centres were not designed to provide educational supervision, and that the applicant’s detention in the centre had not been “for the purpose of” educational supervision, since he had been placed there for “behaviour correction” and the prevention of further delinquent acts. 154. The Chamber then found that the applicant’s detention could not be “reasonably considered necessary to prevent his committing an offence”, within the meaning of Article 5 § 1 (c), since neither the domestic authorities nor the Government had mentioned any concrete and specific delinquent acts which the applicant had to be prevented from committing. Moreover, Article 5 § 1 (c) required that detention to prevent a person from committing an offence was “effected for the purpose of bringing him before the competent legal authority”, which was not the case for the applicant, who had been placed in the temporary detention centre by order of a court at the end of the proceedings against him. 155. The Chamber further considered that since the applicant had not been convicted of an offence because he had not reached the statutory age of criminal responsibility, his detention could not be regarded as “lawful detention after conviction by a competent court” within the meaning of Article 5 § 1 (a). Furthermore, it found that the applicant’s deprivation of liberty did not fall under Article 5 § 1 (b) of the Convention and that sub-paragraphs (e) and (f) were clearly not relevant in the present case. Consequently, the Chamber concluded that the applicant’s detention in the temporary detention centre had not had any legitimate purpose under Article 5 § 1 and had accordingly been arbitrary. B. The parties’ submissions 1. The applicant 156. The applicant agreed with the reasoning in the Chamber judgment in relation to Article 5 § 1. He had been placed in the temporary detention centre for thirty days for the “correction of conduct”, which did not involve “educational supervision” within the meaning of Article 5 § 1 (d). In his view, the temporary detention centre was in no sense an institution intended for educational supervision and, according to section 22 of the Minors Act, its tasks did not include carrying out educational work with the minor. In fact, according to domestic legislation, temporary detention centres were not included in the system of educational institutions. The applicant emphasised that special closed institutions existed that did have the specific task of bringing up and educating children and young persons of deviant behaviour. 157. Moreover, section 22(4)(2) of the Minors Act contained a list of situations in which a minor could be placed in a temporary detention centre (see paragraph 66 above) and the applicant’s situation did not fall under any of these. He emphasised that his identity had been known as had his place of residence and that his guilt in respect of the allegation of extortion had never been established by a court verdict. Furthermore, the applicant noted that, under section 22(6) of the Minors Act, a minor should only be kept in a temporary detention centre for the minimum time necessary for putting his or her affairs in order, and no more than thirty days. This implied that the purpose of the temporary detention centre was not educational supervision, but solely the detention of minors until such time as they could be handed over to their guardian or placed in a special educational institution. In any event, the Government had not submitted any relevant documents confirming that the applicant had received any individual precautionary instructions or had any school lessons while detained in the centre. 158. Lastly, the applicant submitted that his placement in the temporary detention centre did not serve any of the purposes listed in Article 5 § 1 (a), (b), or (c) either. 159. He concluded that his detention had been unlawful as it fell outside the scope of Article 5 § 1 of the Convention. 2. The Government 160. The Government maintained that the applicant’s detention in the temporary detention centre had been in accordance with Article 5 § 1 (d) of the Convention since his placement had been ordered precisely for the purposes of “educational supervision”. They noted that the national courts had authorised the applicant’s placement in the temporary detention centre to prevent him from committing further offences – by correcting his behaviour through individual preventive work – in accordance with section 22(2)(4) of the Minors Act. They observed that other preventive measures taken earlier had not resulted in the improvement of the applicant’s behaviour and that his family had been unable to ensure proper supervision. In relation to this, the Government emphasised the applicant’s troubled background with alcoholic parents, placements in orphanages, anti ‑ social and aggressive behaviour and commission of offences which had led to his being placed under the preventive supervision of the Juveniles Inspectorate between 2002 and 2005. They noted that the case file concerning the preventive supervision of the applicant had been destroyed in 2011. 161. Moreover, the Government submitted that individual preventive work, foreseen by the Minors Act, included an element of “educational supervision”, and its implementation at the temporary detention centre had been expressly required in the applicant’s situation. While the applicant’s personal file from the centre had been destroyed in accordance with domestic rules, the Government relied on other documents that indirectly confirmed that individual preventive work had been carried out with the applicant during his stay, such as an undated personality profile ( характеристика ) of the applicant issued by the temporary detention centre at the request of his representative (submitted to the Court by the applicant’s grandfather in 2007). They further relied on a number of documents to demonstrate that temporary detention centres in general were designed to provide “educational supervision” and secondary-school education, such as the staff schedule approved on 18 June 2003, the contracts of 1 September 2004 and 1 September 2005 between the temporary detention centre and school no. 15 of Novosibirsk on the provision of education to minors placed at the centre, and the licence issued to that school for the period from 4 September 2002 until 19 June 2007 to work with the educational and consultation centre of the temporary detention centre. 162. The Government also claimed that the regime in closed educational institutions, as foreseen by section 15(4) of the Minors Act, was similar to the regime in temporary detention centres, as specified in section 22(2)(4) of the Minors Act. Although the emphasis was placed differently in the wording of the two provisions, the essence, methods and aims of the work conducted with the minors were the same in both places. The difference was merely in the duration of the stay. The main objects of the closed educational institutions, as specified in section 15 of the Minors Act, were fully applicable to temporary detention centres. 3. The third-party intervener 163. The MDAC pointed out that, pursuant to Article 37 (b) of the CRC, the arrest, detention or imprisonment of a child must be in conformity with the law and used only as a measure of last resort and for the shortest possible time (see paragraph 82 above). It further observed that the Committee on the Rights of the Child, in its General Comment No. 9 (2006), stated that “[c]hildren with disabilities in conflict with the law should not be placed in a regular juvenile detention centre by way of pre-trial detention nor by way of a punishment. Deprivation of liberty should only be applied if necessary with a view to providing the child with adequate treatment ... and the child should be placed in an institution that has specially trained staff” (see paragraph 83 above). Moreover, Rule 28 of the Havana Rules (see paragraph 87 above) provided that “[t]he detention of juveniles should only take place under conditions that took full account of their particular needs, status and special requirements according to their age, personality, sex and type of offence, as well as mental and physical health, and which ensured their protection from harmful influences and risk situations”. C. The Court’s assessment 164. The Court notes at the outset that the Government have not maintained their claim that the applicant’s placement in the temporary detention centre fell outside the scope of Article 5 of the Convention on the ground that the placement did not constitute a deprivation of liberty. In any event, the Court confirms the Chamber’s finding that the applicant’s placement for thirty days in the temporary detention centre amounted to a deprivation of liberty within the meaning of Article 5 § 1, noting in particular that the centre was closed and guarded, with twenty-four-hour surveillance of inmates to ensure that they did not leave the premises without authorisation, and with a disciplinary regime enforced by a duty squad (see paragraphs 71-72 above). 165. Moreover, the applicant has submitted that his placement in the temporary detention centre fell outside the scope of all sub-paragraphs of Article 5 § 1 while the Government, in their submissions to the Grand Chamber, have claimed that the placement was in accordance with Article 5 § 1 (d), without arguing that it could also fall under one of the other sub-paragraphs of the said provision. In view of this, and agreeing with the Chamber’s findings that the applicant’s detention did not come within the scope of Article 5 § 1 (a), (b), (c), (e) or (f) of the Convention (see paragraphs 117-27 of the Chamber judgment), the Court will focus its examination on whether or not the applicant’s placement in the temporary detention centre was in accordance with Article 5 § 1 (d). 166. The Court reiterates that the list of exceptions to the right to liberty set out in Article 5 § 1 is an exhaustive one and only a narrow interpretation of those exceptions is consistent with the aim of that provision, namely to ensure that no one is arbitrarily deprived of his liberty (see, among many others, Giulia Manzoni v. Italy, 1 July 1997, § 25, Reports of Judgments and Decisions 1997 ‑ IV ). Moreover, in the context of the detention of minors, the words “educational supervision” must not be equated rigidly with notions of classroom teaching: in the context of a young person in local-authority care, educational supervision must embrace many aspects of the exercise, by the local authority, of parental rights for the benefit and protection of the person concerned (see P. and S. v. Poland, no. 57375/08, § 147, 30 October 2012; D.G. v. Ireland, no. 39474/98, § 80, ECHR 2002 ‑ III; and Koniarska v. the United Kingdom (dec.), no. 33670/96, 12 October 2000). 167. Further, detention for educational supervision pursuant to Article 5 § 1 (d) must take place in an appropriate facility with the resources to meet the necessary educational objectives and security requirements. However, placement in such a facility does not necessarily have to be immediate. Sub-paragraph (d) does not preclude an interim custody measure being used as a preliminary to a regime of supervised education, without itself involving any supervised education. In such circumstances, however, the interim custody measure must be speedily followed by actual application of a regime of educational supervision in a setting (open or closed) designed – and with sufficient resources – for the purpose (see Bouamar v. Belgium, 29 February 1988, §§ 50 and 52, Series A no. 129, and D.G. v. Ireland, cited above, § 78). 168. In the present case, it appears from the relevant provisions in the Minors Act that a placement in such a centre should be of a temporary character – as the name itself indicates – and for the shortest possible time, thirty days at the most. Thus, for instance, a minor may be placed there while his identity and place of residence are established or for the time necessary to prepare his transfer to, or return following an escape from, a closed educational institution (section 22(2)(4-6) of the Minors Act). However, none of these grounds is relevant in the present case since the applicant’s placement was for the purpose of “correcting his behaviour”. In any event, the various reasons provided for in the Minors Act for placing a minor in a temporary detention centre indicate that its purpose is interim accommodation only until a permanent solution is found and not for “educational supervision”. 169. In the Court’s view, and contrary to the Government’s claims, the applicant’s placement in the temporary detention centre cannot be compared to a placement in a closed educational institution, which is a separate and long-term measure intended to try to help minors with serious problems (compare A. and Others v. Bulgaria, no. 51776/08, §§ 66-74, 29 November 2011). As noted above, placement in a temporary detention centre is a short-term, temporary solution, and the Court fails to see how any meaningful educational supervision to change a minor’s behaviour and offer him or her appropriate treatment and rehabilitation, can be provided during a maximum period of thirty days. 170. As concerns the Government’s submission that the applicant did receive schooling in the temporary detention centre, the Court finds that the documents relied on by the Government show that an agreement existed with a local school to provide education to the juveniles at the temporary detention centre during the time that the applicant was there. In this connection, the Court considers that, in order to avoid gaps in their education, schooling in line with the normal school curriculum should be standard practice for all minors deprived of their liberty and placed under the State’s responsibility, even when they are placed in a temporary detention centre for a limited period of time,. This is also supported by international instruments dealing with the deprivation of liberty of minors (see, for instance, Rules 77, 78.3 and 78.5 of the 2008 European Rules for juvenile offenders subject to sanctions and measures; Guidelines 21 and 28 of the Council of Europe Guidelines on child friendly justice; Rule 26.2 of the Beijing Rules; and Rule 38 of the Havana Rules. All of these sources are cited above in paragraphs 79, 80, 86 and 87 respectively). Consequently, while the Court accepts that some schooling was provided in the centre, it considers that this does not substantiate the Government’s argument that the applicant’s placement was “for the purpose” of educational supervision. On the contrary, the centre was characterised by its disciplinary regime rather than by the schooling provided. 171. The Court further considers it to be of importance that none of the domestic courts examining the applicant’s detention order stated that the placement was for educational purposes. Instead, they referred to “behaviour correction” and the need to prevent him from committing further delinquent acts, neither of which is a valid ground covered by Article 5 § 1 (d) of the Convention. In fact, the Court observes that the purpose of “behaviour correction” coincides with the aims of criminal punishment found in Article 43 § 2 of the Criminal Code and in Article 87 § 2 of the Code for minors between 14 and 18 years of age (see paragraphs 57-58 above). 172. In view of the foregoing, the Court finds that the applicant’s placement in the temporary detention centre did not fall under Article 5 § 1 (d) of the Convention. Since it has already established that the detention did not fall within the ambit of any of the other sub-paragraphs of this provision, it follows that there has been a violation of Article 5 § 1. V. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 173. The applicant further complained that the proceedings relating to his placement in the temporary detention centre had been unfair. In particular, he alleged that he had been questioned by the police without his guardian, a defence lawyer or a teacher present and that he had not had the opportunity to cross-examine witnesses against him during the proceedings. He relied on Article 6 §§ 1 and 3 of the Convention, which in their relevant parts read as follows: “1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ... ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...” A. Applicability of Article 6 to the present case 1. The parties’ submissions 174. Firstly, in their submissions before the Grand Chamber, the Government considered that the court hearing of 21 February 2005 ordering the applicant’s detention in the temporary detention centre should be examined for compliance with the requirements of Article 5 § 4 of the Convention, instead of Article 6, since it concerned the imposition of a measure for the purposes foreseen by Article 5 § 1 (d). In this connection they noted that the Chamber had already examined another court hearing, namely that of 11 April 2005 relating to the applicant’s appeal against his placement in the temporary detention centre, for compliance with Article 5 § 4. Moreover, the Court had previously relied on this provision in relation to similar measures (in Ichin and Others v. Ukraine, nos. 28189/04 and 28192/04, §§ 41 and 43, 21 December 2010, and A. and Others v. Bulgaria, cited above, §§ 81 and 107). 175. In any event, the Government maintained their stance that Article 6 of the Convention was not applicable to the proceedings in the present case. 176. They contended that, as far as the pre-investigation inquiry was concerned, it had only involved one informal act with the participation of the applicant – the questioning – which should not be confused with a formal interview. They further reiterated that the pre-investigation inquiry concerned only the establishment of the facts and could not lead to the imposition of any punishment and thus did not involve the determination of a criminal charge within the meaning of Article 6 § 1 of the Convention. The inquiry could only lead to a decision whether or not to institute criminal proceedings. Since the applicant was under the age of criminal responsibility, the institution of criminal proceedings was excluded. Thus, as in the situation of a mentally ill defendant, the possibility of conviction was completely excluded. Referring to Kerr v. the United Kingdom ((dec.), no. 63356/00, 23 September 2003) and Antoine v. the United Kingdom ((dec.), no. 62960/00, 13 May 2003), the Government observed that, for exactly these reasons, the Court had found that Article 6 was not applicable to criminal proceedings in respect of mentally ill defendants. 177. Regarding the proceedings leading to the applicant’s placement in the temporary detention centre, the Government argued that Article 6, under its criminal head, was not applicable. They referred to sections 22(2)(4) and 31.1(2) of the Minors Act and to the domestic court rulings of 21 February 2005 and 29 May 2006. In their view, these sources confirmed that the purpose of the applicant’s placement in the temporary detention centre had been to prevent him from committing further offences, by correcting his behaviour, and not to punish him for the latest offence he had committed. Thus, the domestic courts had examined not only the circumstances of the latest offence, but the entire record of the applicant’s anti-social and delinquent behaviour, as well as his living conditions and family situation, and had concluded that he lacked the necessary supervision and that the preventive measures previously put in place had been inadequate. Consequently, the domestic court could not, and had not, established the applicant’s guilt in respect of a crime but had merely assessed the sufficiency of the evidence confirming his commission of an act prohibited by the Criminal Code. This could not amount to a “determination of a criminal charge” within the meaning of Article 6 § 1. Furthermore, the court hearing of 21 February 2005 had been conducted in accordance with the procedure foreseen by the Minors Act, not by the Code of Criminal Procedure, and the Constitutional Court of the Russian Federation had expressly stated that this procedure under the Minors Act constituted a type of civil proceedings (finding of 14 May 2013, no. 690-O). 178. The applicant contested the applicability of Article 5 § 4 and maintained that the Chamber’s approach had been the correct one and that the proceedings fell within the scope of Article 6 and should be considered in terms of compliance with that provision. He contended that his placement in the temporary detention centre had not been aimed at educational supervision but to punish him for the crime he had allegedly committed. In his view, the authorities had used the placement as a measure of criminal prosecution since they were prevented from instituting criminal proceedings against him on account of his age. 2. The Court’s assessment 179. The Court notes that, in its judgment, the Chamber came to the conclusion that the proceedings against the applicant constituted criminal proceedings within the meaning of Article 6 of the Convention (see paragraph 149 of the Chamber judgment). It held as follows. “139. The Court reiterates that the concept of a ‘criminal charge’ within the meaning of Article 6 § 1 is an autonomous one. The Court’s established case-law sets out three criteria, commonly known as the “Engel criteria” (see Engel and Others v. the Netherlands, 8 June 1976, § 82, Series A no. 22), to be considered in determining whether or not there was a ‘criminal charge’ within the meaning of Article 6 § 1 of the Convention. The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence, and the third is the nature and degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative, and not necessarily cumulative. This, however, does not exclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see, in particular, Jussila v. Finland [GC], no. 73053/01, §§ 30-31, ECHR 2006 ‑ XIV, and Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, § 82, ECHR 2003 ‑ X). 140. Turning to the present case, the Court observes that, after establishing that the applicant’s actions contained elements of the criminal offence of extortion, the domestic authorities refused to institute criminal proceedings against him because he was under the statutory age of criminal responsibility ... Subsequently, in separate proceedings, a court ordered the applicant’s placement in a temporary detention centre for juvenile offenders for thirty days on the ground that he had committed a delinquent act – extortion – and it was necessary to ‘correct his behaviour’ and prevent him from committing further delinquent acts ... 141. The Court takes note of the Government’s argument that the proceedings against the applicant were not classified as criminal under domestic law. It has already recognised that States, in the performance of their task as guardians of the public interest, are entitled to create or maintain a distinction between different categories of offences for the purposes of their domestic law and to draw a dividing line between what belongs to the criminal sphere and what does not. By removing certain forms of conduct from the category of criminal offences under domestic law, the law-maker may be able to serve the needs of the proper administration of justice, as well as the interests of the individual, as in the present case for example, by exempting minors under a certain age from criminal liability for their actions according to the level of development of their mental and intellectual capacities. Nevertheless, the legal characterisation of the procedure under national law cannot be the sole criterion of relevance for the applicability of Article 6. Otherwise, the application of this provision would be left to the discretion of the Contracting States to a degree that might lead to results incompatible with the object and purpose of the Convention (see Öztürk v. Germany, 21 February 1984, § 49, Series A no. 73; Campbell and Fell v. the United Kingdom, 28 June 1984, § 68, Series A no. 80; Ezeh and Connors, cited above, § 83; and Matyjek v. Poland (dec.), no. 38184/03, § 45, 30 May 2006). In view of the above, the fact that the proceedings against the applicant were not classified as criminal under Russian law has only a formal and relative value; the ‘very nature of the offence is a factor of greater import’ (see Ezeh and Connors, cited above, § 91). 142. It was not disputed before the Court that the delinquent act imputed to the applicant corresponded to an offence in the ordinary criminal law. Indeed, the decision not to institute criminal proceedings stated that ‘[the applicant’s] actions ... contained elements of the criminal offence of extortion, punishable by Article 163 of the Criminal Code’ ... At the same time, the Court does not lose sight of the fact that the criminal charges against the applicant were not pursued on the ground that he had not reached the statutory age of criminal responsibility. It is, however, not necessary to decide whether, despite the indisputably criminal nature of the imputed offence, the fact that criminal prosecution of the applicant was legally impossible because of his age removed the proceedings against him from the ambit of the criminal limb of Article 6. The Court will instead concentrate on the third criterion: the nature and degree of severity of the penalty that the applicant risked incurring. 143. The Court observes that under Russian law a minor who has committed a delinquent act before reaching the statutory age of criminal responsibility may be placed in a closed educational institution for up to three years, or in a temporary detention centre for juvenile offenders for up to thirty days ... In the present case, within a month of the refusal to institute criminal proceedings against the applicant, the local department of the interior asked a court to place him in a temporary detention centre for juvenile offenders on the ground that he had committed a delinquent act for which he could not be held criminally liable because of his age. Referring to his unruly way of life and previous delinquent acts, the local department of the interior claimed that it was necessary to detain the applicant in order to ‘correct’ his behaviour and prevent him from committing further delinquent acts ... The District Court ordered the applicant’s placement in a temporary detention centre for juvenile offenders for thirty days for ‘behaviour correction’, on the grounds that he had not ‘drawn proper conclusions’ from his previous placements in that centre and had committed a further delinquent act ... The Regional Court upheld that decision on appeal, referring to the fact that the applicant had committed a delinquent act punishable by the Criminal Code and to his family situation and poor school performance. It found that his placement in the centre was necessary to prevent him from committing further delinquent acts ... 144. The Court is not oblivious to the fact that the decision to place the applicant in the temporary detention centre for juvenile offenders was taken in separate proceedings which were formally unrelated to the criminal pre-investigation inquiry regarding the applicant. However, taking into account that the domestic courts referred to the fact that the applicant had committed a delinquent act as the main reason for his placement in the temporary detention centre for juvenile offenders, and that in their decisions they extensively relied on the documents obtained and the findings made during the criminal pre-investigation inquiry, the Court considers that there was a close link, both in law and fact, between the criminal pre-investigation inquiry and the placement proceedings. Indeed, the wording of the applicable legal provisions and of the judicial decisions, both cited in paragraph 143 above, clearly shows that the applicant’s placement in the temporary detention centre for juvenile offenders was a direct consequence of the local department of the interior’s finding that his actions had contained elements of the criminal offence of extortion. 145. The Court has already found that the placement in a temporary detention centre for juvenile offenders amounted to a deprivation of the applicant’s liberty ... There is therefore a presumption that the proceedings against the applicant were ‘criminal’ within the meaning of Article 6, a presumption which was rebuttable only in entirely exceptional circumstances and only if the deprivation of liberty could not be considered “appreciably detrimental” given its nature, duration or manner of execution (see Ezeh and Connors, cited above, § 126). 146. As already found above, the applicant’s placement in the temporary detention centre for juvenile offenders did not pursue the purpose of educational supervision ... The stated purpose of the applicant’s placement in the detention centre for juvenile offenders was to correct his behaviour and to deter him from committing further delinquent acts rather than to punish him. However, the Court’s case-law indicates that it may be necessary to look beyond the appearances and the language used and concentrate on the realities of the situation (see Stafford v. the United Kingdom [GC], no. 46295/99, § 64, ECHR 2002 ‑ IV, and Ezeh and Connors, cited above, § 123). 147. The Court notes that the applicant’s detention lasted thirty days and was served in a detention centre for juvenile offenders rather than in an educational institution. As established above, the centre was closed and guarded to prevent inmates from leaving without authorisation. Inmates were subject to constant supervision and to a strict disciplinary regime ... The Court therefore considers that the deprivation of liberty, imposed after a finding that the applicant’s actions contained elements of the criminal offence of extortion and served in a detention centre for juvenile offenders subject to a quasi-penitentiary regime as described above, contained punitive elements as well as elements of prevention and deterrence. The Court finds it difficult to distinguish between the punishment and deterrent aims of the measure in question, these objectives not being mutually exclusive and being recognised as characteristic features of criminal penalties. Indeed, in the Court’s case-law criminal penalties have customarily been recognised as comprising the twin objectives of punishment and deterrence (see Öztürk, cited above, § 53; Bendenoun v. France, 24 February 1994, § 47, Series A no. 284; Lauko v. Slovakia, 2 September 1998, § 58, Reports 1998 ‑ VI; and Ezeh and Connors, cited above, §§ 102 and 105). 148. In view of the nature, duration and manner of execution of the deprivation of liberty which was liable to be, and which actually was, imposed on the applicant, the Court finds no exceptional circumstances capable of rebutting the presumption that the proceedings against the applicant were “criminal” within the meaning of Article 6. 149. In view of the above, the Court concludes that the nature of the offence, together with the nature and severity of the penalty, were such that the proceedings against the applicant constituted criminal proceedings within the meaning of Article 6 of the Convention. This Article therefore applies to the proceedings against the applicant.” 180. The Court does not see any reason to depart from the Chamber’s findings, which are detailed and well reasoned. Like the Chamber, it emphasises the need to look beyond appearances and the language used and to concentrate on the realities of the situation (see paragraph 146 of the Chamber judgment). When doing so in the applicant’s case, the Court considers that his placement for thirty days in the temporary detention centre for juvenile offenders had clear elements of both deterrence and punishment (see paragraph 147 of the Chamber judgment). 181. Having regard to the above, the Court does not agree with the Government’s contention that the complaints should be considered under Article 5 § 4 of the Convention. In its view, since the proceedings taken against the applicant concerned the determination of a criminal charge, the applicant’s complaints should be seen in the context of the more far-reaching procedural guarantees enshrined in Article 6 of the Convention rather than Article 5 § 4. The Court would add that it does not agree with the Government’s submission that the applicant’s situation should be treated in the same way as that of a mentally ill defendant. In cases of mentally ill defendants, the proceedings can lead to their being placed in closed institutions for treatment and to prevent them from committing further criminal acts. There are no punitive or deterrent elements involved, unlike in the applicant’s case. 182. Accordingly, the Court concludes that the proceedings against the applicant constituted criminal proceedings within the meaning of Article 6 of the Convention and that this provision is therefore applicable in the present case. B. Compliance with the requirements of Article 6 1. The Chamber judgment 183. With regard to the applicant’s complaint that he had been questioned by the police in the absence of his guardian, a defence lawyer or a teacher, the Chamber noted that there was no evidence to support the Government’s claim that the applicant’s grandfather, his guardian, or anyone else had been present during the questioning. Moreover, having regard to his young age, it considered the circumstances surrounding the questioning to have been psychologically coercive. The Chamber further observed that the applicant’s confession to the police had been used against him in the ensuing proceedings. Thus, the absence of a lawyer while in police custody had irremediably affected his defence rights and undermined the fairness of the proceedings as a whole. There had therefore been a violation of Article 6 §§ 1 and 3 (c). 184. Next, the Chamber noted that the applicant had had no opportunity to cross-examine S. and his mother although their witness statements were the only evidence against him and had therefore been decisive. Moreover, no efforts had been made by the authorities to secure the appearance of S. or his mother in court, nor had they made a reasonable effort to compensate for this. It therefore found that the applicant’s right to question and challenge witnesses had been restricted to an extent incompatible with the guarantees provided by Article 6 §§ 1 and 3 (d). 185. Lastly, the Chamber observed that the above-mentioned restrictions on the applicant’s defence rights had been due to the special legal regime applicable to his situation because he had not reached the statutory age of criminal responsibility. The Minors Act, applicable to the proceedings against the applicant, provided for significantly restricted procedural guarantees. In view of the above considerations, the proceedings against the applicant had not been fair and there had been a violation of Article 6 § 1. 2. The parties’ submissions (a) The applicant 186. The applicant fully agreed with the Chamber judgment. He maintained that he had been deprived of his right to a defence both at the time of his initial questioning at the police station and during the court proceedings to place him in the temporary detention centre. He had also been deprived of legal safeguards such as the right to question witnesses and be presumed innocent. (b) The Government 187. The Government submitted that the applicant had been questioned by a specially trained officer from the Juveniles Inspectorate at the police station in the presence of his grandfather. He had also been informed of his right not to make self-incriminating statements, which was confirmed by his signature on the first page of his confession statement. 188. Moreover, since the Government considered that the court hearing of 21 February 2005 ordering the applicant’s detention in the temporary detention centre should be examined for compliance with the requirements of Article 5 § 4 of the Convention, instead of Article 6, they developed their arguments with reference to that provision. They emphasised, in particular, that the procedure under Article 5 § 4 did not necessarily have to be attended by the same guarantees as those required under Article 6 for criminal proceedings. 189. Thus, the Government pointed out that the hearing of 21 February 2005 had been held in compliance with section 31.2(2) of the Minors Act and attended by the applicant, his grandfather, a court-appointed lawyer, the officer from the Juveniles Inspectorate who had delivered the ruling of 12 January 2005 on the refusal to initiate criminal proceedings against the applicant, as well as a prosecutor. The applicant’s grandfather had denied that the applicant had committed any offences, referring to his visit to a doctor earlier on the relevant day, and the applicant had refused to give any explanation. The court-appointed lawyer had objected to the applicant’s placement in the temporary detention centre. While acknowledging that S. and his mother had not been heard during the hearing, the Government expressed doubts as to whether the applicant had even requested their attendance, since this did not appear from the judgment. Moreover, the court hearing record had been destroyed together with the case file in 2013. Furthermore, in his cassation complaint of 2 March 2005, the applicant’s grandfather did not claim to have made such a request to the court. The Government further noted that section 31.2 of the Minors Act neither required nor prohibited the examination of witnesses. 190. In view of the above, the Government considered that the applicant’s complaints concerning the fairness of the proceedings did not disclose any violation of the Convention. (c) Third-party interveners (i) The MDAC 191. The MDAC stressed that States had a positive obligation to apply stringent and effective safeguards in order to ensure that rights were “practical and effective” and that this was particularly important in relation to children with disabilities, who were very vulnerable. Article 13 of the CRPD addressed the specific issue of access to justice of persons with disabilities and stated that States Parties must ensure effective access to justice for persons with disabilities, including through the provision of procedural and age-appropriate accommodation, in order to facilitate their effective role as direct or indirect participants in all legal proceedings. Reasonable accommodation meant that appropriate modification and adjustments, which did not impose a disproportionate or undue burden, should be taken in each particular case. Moreover, Article 40 of the CRC dealt with children in conflict with the law and listed the minimum guarantees for children, including the right to legal assistance (see paragraph 82 above). The MDAC reiterated that the best interests of the child had to be of primary importance. (ii ) League of Human Rights 192. The League of Human Rights (“the LIGA”) also referred to Article 40 of the CRC. It further referred to the Beijing Rules (see paragraph 86 above), the Guidelines for Action on Children in the Criminal Justice System (Annex to UN Resolution 1997/30, adopted on 21 July 1997) and the Havana Rules (see paragraph 87 above) which all provided for a right to legal counsel and assistance for children in conflict with the law. Moreover, the LIGA pointed out that Council of Europe Recommendation CM/Rec(2008)11 on the European Rules for juvenile offenders subject to sanctions or measures (see paragraph 79 above) provided that juveniles should not have fewer legal rights and safeguards than those provided to adult offenders by the general rules of criminal procedure. The LIGA also stressed that the right to legal assistance, referred to in various international instruments, applied from the very outset of a procedure, including the police questioning stage, involving children and those under the age of criminal responsibility. Since children below the age of criminal responsibility were often subject to very paternalistic proceedings on the grounds that the proceedings were not penal but protective, the traditional procedural safeguards were often not applied. That approach was based on the theory of welfare juvenile justice systems which had emerged in the United States of America and Europe in the late nineteenth and early twentieth centuries and had been systematically criticised by a number of scholars for its overall paternalistic approach to children, typically suppressing their procedural rights and treating them as objects of care and discipline. 193. According to the LIGA, the particular vulnerability of children should instead require additional protection of their rights. In particular, legal assistance should be provided to all children on a mandatory basis. Lastly, it noted that Guideline 30 of the Council of Europe Guidelines on child friendly justice (see paragraph 80 above) stated that a child who had been taken into custody should not be questioned in respect of criminal behaviour, or asked to make or sign a statement concerning such involvement, except in the presence of a lawyer or one of the child’s parents or, if no parent was available, another person whom the child trusted. 3. The Court’s assessment (a) General principles 194. The Court reiterates that, as the requirements of paragraph 3 of Article 6 are to be seen as particular aspects of the right to a fair trial guaranteed by paragraph 1, it often examines the complaints under both provisions taken together (see, among many other authorities, Lucà v. Italy, no. 33354/96, § 37, ECHR 2001 ‑ II; Krombach v. France, no. 29731/96, § 82, ECHR 2001 ‑ II; and Poitrimol v. France, 23 November 1993, § 29, Series A no. 277 ‑ A). Moreover, where the applicant complains of numerous procedural defects, the Court may examine the various grounds giving rise to the complaint in turn in order to determine whether the proceedings, considered as a whole, were fair (see Insanov v. Azerbaijan, no. 16133/08, §§ 159 et seq. 14 March 2013, and Mirilashvili v. Russia, no. 6293/04, §§ 164 et seq., 11 December 2008 ). 195. As regards juvenile defendants, the Court has held that the criminal proceedings must be so organised as to respect the principle of the best interests of the child. It is essential that a child charged with an offence is dealt with in a manner which takes full account of his age, level of maturity and intellectual and emotional capacities, and that steps are taken to promote his ability to understand and participate in the proceedings (see Adamkiewicz v. Poland, no. 54729/00, § 70, 2 March 2010; Panovits v. Cyprus, no. 4268/04, § 67, 11 December 2008; V. v. the United Kingdom [GC], no. 24888/94, § 86, ECHR 1999 ‑ IX; and T. v. the United Kingdom [GC], no. 24724/94, § 84, 16 December 1999). The right of a juvenile defendant to effective participation in his criminal trial requires that the authorities deal with him with due regard to his vulnerability and capacities from the first stages of his involvement in a criminal investigation and, in particular, during any questioning by the police. The authorities must take steps to reduce, as far as possible, the child’s feelings of intimidation and inhibition and ensure that he has a broad understanding of the nature of the investigation, of what is at stake for him, including the significance of any penalty which may be imposed as well as of his rights of defence and, in particular, of his right to remain silent ( see Martin v. Estonia, no. 35985/09, § 92, 30 May 2013; Panovits, cited above, § 67; and S.C. v. the United Kingdom, no. 60958/00, § 29, ECHR 2004 ‑ IV ). 196. In view of his status as a minor, when a child enters the criminal-justice system his procedural rights must be guaranteed and his innocence or guilt established, in accordance with the requirements of due process and the principle of legality, with respect to the specific act which he has allegedly committed. On no account may a child be deprived of important procedural safeguards solely because the proceedings that may result in his deprivation of liberty are deemed under domestic law to be protective of his interests as a child and juvenile delinquent, rather than penal. Furthermore, particular care must be taken to ensure that the legal classification of a child as a juvenile delinquent does not lead to the focus being shifted to his status as such, while neglecting to examine the specific criminal act of which he has been accused and the need to adduce proof of his guilt in conditions of fairness. Processing a child offender through the criminal-justice system on the sole basis of his status of being a juvenile delinquent, which lacks legal definition, cannot be considered compatible with due process and the principle of legality (see, mutatis mutandis, Achour v. France [GC], no. 67335/01, §§ 45-47, ECHR 2006 ‑ IV, relating to the legal classification of recidivism). Discretionary treatment, on the basis of someone being a child, a juvenile, or a juvenile delinquent, is only acceptable where his interests and those of the State are not incompatible. Otherwise – and proportionately – substantive and procedural legal safeguards do apply. (i) Right to legal assistance 197. The Court notes that, although not absolute, the right under Article 6 § 3 (c) of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial (see Poitrimol, cited above, § 34). 198. As regards legal assistance at the pre-trial stages of the proceedings, the Court has emphasised the importance of the investigative stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at trial. Therefore, the Court has held that the particular vulnerability of the accused at the initial stages of police questioning can only be properly compensated for by the assistance of a lawyer, whose task is, among other things, to help to ensure respect of the right of an accused not to incriminate himself. Indeed, this right presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. It is further important to protect the accused against coercion on the part of the authorities and contribute to the prevention of miscarriage of justice and ensure equality of arms. Accordingly, in order for the right to a fair trial to remain sufficiently “practical and effective”, Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as soon as a suspect is questioned by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict that right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6. The rights of the defence will in principle be irretrievably prejudiced where incriminating statements made during police questioning without access to a lawyer are used to secure a conviction (see Panovits, cited above, §§ 64-66, and Salduz v. Turkey [GC], no. 36391/02, §§ 50-55, ECHR 2008). 199. In view of the particular vulnerability of children, and taking into account their level of maturity and intellectual and emotional capacities, the Court stresses in particular the fundamental importance of providing access to a lawyer where the person in custody is a minor (see Salduz, cited above, § 60; see also the case-law cited in paragraph 195 above). (ii) Right to obtain the attendance and examination of witnesses 200. The Court reiterates that Article 6 § 3 (d) enshrines the principle that, before an accused can be convicted, all evidence against him must usually be produced in his presence at a public hearing with a view to adversarial argument. Exceptions to this principle are possible but must not infringe the rights of the defence, which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of the proceedings (see Lucà, cited above, §§ 39-40). 201. Moreover, having regard to the Court’s case-law, firstly, there must be a good reason for the non-attendance of a witness at the trial and, secondly, when a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence may be restricted to an extent that is incompatible with the guarantees provided by Article 6 (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 119, ECHR 2011, as refined in Schatschaschwili v. Germany [GC], no. 9154/10, §§ 107 and 118, ECHR 2015 ). 202. Where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny. The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance in the case (see Al-Khawaja and Tahery, cited above, § 147, and as further developed in Schatschaschwili, cited above, § 116). (b) Application to the present case 203. The Court notes from the outset that the applicant in the present case was only 12 years old when the police took him to the police station and questioned him. He was thus well below the age of criminal responsibility set by the Criminal Code (fourteen years) for the crime that he was accused of, namely, extortion. In view of this, he was in need of special treatment and protection by the authorities, and it is clear from a variety of international sources (see, for instance, Council of Europe Recommendations No. R (87) 20 and Rec(2003)20; Guidelines 1, 2, and 28 to 30 of the Council of Europe Guidelines on child friendly justice; Article 40 of the CRC, and General Comment No. 10, point 33; and Rule 7.1. of the Beijing Rules, all cited above in paragraphs 77, 78, 80, 82, 84 and 86 respectively) that any measures against him should have been based on his best interests and that, from the time of his apprehension by the police, he should have been guaranteed at least the same legal rights and safeguards as those provided to adults. Moreover, the fact that the applicant suffered from ADHD, a mental and neurobehavioural disorder (see paragraph 12 above), made him particularly vulnerable and thus he required special protection (see Guideline 27 of the Council of Europe Guidelines on child friendly justice, and Article 23 of the CRC, and General Comment No. 9, points 73-74, all cited above in paragraphs 80 and 82-83 respectively). 204. Against this background, the Court will look at the applicant’s specific complaints under Article 6, that is, whether he was provided with legal assistance and had the opportunity to cross-examine witnesses, in order to determine whether the proceedings to place him in the temporary detention centre for juvenile offenders were fair. (i) Right to legal assistance 205. The Court observes that it is undisputed that the applicant was taken to the police station without being told why. He also had to wait a certain amount of time before being questioned by a police officer. However, there is no indication that the applicant was in any form or manner informed that he had the right to call his grandfather, a teacher, a lawyer or another person of confidence during this period for them to come and assist him during the questioning. Nor were any steps taken to ensure that legal assistance was provided to him during the questioning. The Government’s submission that the applicant’s grandfather was present during the questioning remains unsupported by evidence. Moreover, the Court notes that the confession statement signed by the applicant – the probative value of which must be considered to be extremely questionable given his young age and health condition – did not mention the grandfather’s presence and was not countersigned by him. The written statement signed by his grandfather on the same day could, as claimed by the applicant, have been signed later, after the applicant had been questioned by the police officer, and thus does not prove his presence during the questioning. In this connection, the Court notes that it was marked on the applicant’s confession statement that he had been informed of his right not to make self-incriminating statements. However, that document did not mention that the applicant had been informed of his right to have legal counsel or someone else present during the questioning or that any such person had indeed been present. 206. Therefore the Court considers it established that the police did not assist the applicant in obtaining legal representation. Nor was the applicant informed of his right to have a lawyer and his grandfather or a teacher present. This passive approach adopted by the police was clearly not sufficient to fulfil their positive obligation to furnish the applicant, a child, suffering, moreover, from ADHD, with the necessary information enabling him to obtain legal representation (see Panovits, cited above, § 72). 207. The fact that the domestic law does not provide for legal assistance to a minor under the age of criminal responsibility when interviewed by the police is not a valid reason for failing to comply with that obligation. The Court has previously found that a systematic restriction on the right of access to legal assistance, on the basis of statutory provisions, is sufficient in itself to constitute a violation of Article 6 (see Salduz, cited above, § 56). Moreover, it is contrary to the basic principles set out in international sources according to which a minor should be guaranteed legal, or other appropriate, assistance (see, for example, Article 40 § 2 (b) (ii) of the CRC, and the comments thereto; Rule 7.1 of the Beijing Rules; and Council of Europe Recommendation No. R (87) 20, point 8, all cited in paragraphs 82, 83-84, 86 and 77 above). 208. Furthermore, the Court considers that the applicant must have felt intimidated and exposed while being held alone at the police station and questioned in an unfamiliar environment. In fact, he retracted the confession immediately when his grandfather came to the police station, and protested his innocence. In this regard, the Court emphasises that the confession statement, made in the absence of a lawyer, was not only used against the applicant in the proceedings to place him in the temporary detention centre but actually formed the basis, in combination with the witness statements of S. and his mother, for the domestic courts’ finding that his actions contained elements of the criminal offence of extortion, thus providing the ground for his placement in the centre. 209. In view of the above, the Court finds that the absence of legal assistance during the applicant’s questioning by the police irretrievably affected his defence rights and undermined the fairness of the proceedings as a whole (see Panovits, cited above, §§ 75-76, and Salduz, cited above, §§ 58 and 62). 210. There has accordingly been a violation of Article 6 §§ 1 and 3 (c) of the Convention. (ii) Right to obtain the attendance and examination of witnesses 211. Turning to the applicant’s complaint that he did not have the opportunity to cross-examine S. or his mother during the District Court hearing to decide on his placement in the temporary detention centre for juvenile offenders, the Court firstly notes that it was a single judge at the Sovetskiy District Court of Novosibirsk, in accordance with sections 22(3)(2) of the Minors Act, who ordered the applicant’s placement, after holding a hearing. At the hearing, the applicant, his grandfather and court-appointed counsel were present, as were a prosecutor and the officer from the Juveniles Inspectorate who had ruled on 12 January 2005 not to initiate criminal proceedings against the applicant. From the judgment, it appears that the applicant and his grandfather had the opportunity to address the court and submit documents. Thus, the Court notes that, on the face of it, it would appear that the proceedings afforded certain procedural safeguards for the applicant. 212. However, the District Court was provided with the results of the pre-investigation inquiry, among other material concerning the applicant. This included the statements made by the alleged victim S. and his mother, as well as the confession statement signed by the applicant. The Court reiterates that the applicant had retracted the confession and had claimed that it had been obtained under duress. Moreover, as found above, the applicant did not benefit from the assistance of a lawyer during the questioning at the police station, which irremediably affected his defence rights. Furthermore, the grandfather also claimed that the applicant had been at a doctor’s surgery earlier on the relevant day. However, the Court observes that neither S. nor his mother was called to the hearing to give evidence and provide the applicant with an opportunity to cross-examine them, despite the fact that their testimonies were of decisive importance to the pre-investigation inquiry’s conclusion that the applicant had committed a delinquent act, namely, extortion. 213. In this connection, it is also relevant to note that there is no indication, nor has it been claimed by the Government, that S. and his mother were not available or that it would otherwise have been difficult to summon them to the hearing as witnesses. There was, consequently, no good reason for the witnesses’ non-attendance. Moreover, in view of the fact that the applicant had retracted his confession, the Court considers that it was important for the fairness of the proceedings that S. and his mother be heard. In the Court’s view, this safeguard is even more important when the matter concerns a minor under the age of criminal responsibility in proceedings determining such a fundamental right as his right to liberty. 214. Furthermore, although court-appointed counsel was present at the hearing to represent the applicant, it is unclear when she was appointed and to what extent she actually defended the applicant’s rights. If it is correct, as indicated by the Government, that no request to hear S. or his mother was made to the District Court by the applicant, then this would indicate a lack of diligence on the part of counsel and, in the Court’s view, also on the part of the judge, who should have ensured that the principle of equality of arms was respected during the proceedings. In fact, no efforts were made by the authorities to secure the appearance of S. and his mother in court, even though the Minors Act does provide for the possibility of hearing witnesses, as acknowledged by the Government. Having regard to the fact that what was at stake for the applicant in the placement proceedings was his deprivation of liberty for thirty days – not a negligible length of time for a 12-year-old boy – the Court considers that it was of utmost importance that the District Court guarantee the fairness of the proceedings. 215. Lastly, the Court notes that there were no counterbalancing factors to compensate for the applicant’s inability to cross-examine S. and his mother at any stage of the proceedings. As noted by the Chamber in paragraph 173 of its judgment, the applicant was not provided with an opportunity to scrutinise the witnesses’ questioning by the investigator, nor was he then or later provided with the opportunity to have his own questions put to them. Furthermore, as the witnesses’ statements to the investigator were not recorded on video, neither the applicant nor the judges were able to observe the witnesses’ demeanour under questioning and thus form their own impression of their reliability (see, for similar reasoning, Makeyev v. Russia, no. 13769/04, § 42, 5 February 2009). 216. Having regard to all of the above, the Court finds that the applicant’s defence rights, in particular the right to challenge and question witnesses, were restricted to an extent incompatible with the guarantees provided by Article 6 §§ 1 and 3 (d) of the Convention, and there has accordingly been a violation of these provisions. (iii) Conclusion 217. The Court has found that the applicant’s defence rights were restricted to an extent incompatible with the guarantees provided by Article 6 of the Convention because of the absence of legal assistance during police questioning and the denial of an opportunity to cross-examine the witnesses whose evidence against him had been decisive for the domestic court’s decision to place him in the temporary detention centre for juvenile offenders for thirty days. 218. However, the Court considers it important to add, as did the Chamber (see paragraph 176 of its judgment), that the above restrictions were due to the fact that the applicant was under the age of criminal responsibility and therefore fell outside the protection offered by the procedural guarantees provided for by the Code of Criminal Procedure (see paragraphs 59-63 above). Instead, the Minors Act was applicable to the applicant. This Act provided for significantly restricted procedural safeguards (see paragraph 68 above) since it was intended as protective legislation for minors. According to the Court, and as also noted by the LIGA in its submission (see paragraph 192 above), this is where, as illustrated by the present case, the legislature’s intention to protect children and ensure their care and treatment comes into conflict with reality and the principles set out in paragraph 196 above, since the child is deprived of his liberty without having the procedural rights to defend himself properly against the imposition of such a harsh measure. 219. In the Court’s view, minors, whose cognitive and emotional development in any event requires special consideration, and in particular young children under the age of criminal responsibility, deserve support and assistance to protect their rights when coercive measures, albeit in the guise of educational measures, are applied in their regard. As is clear from the relevant international materials before the Court (see paragraphs 77-89 above), this has been established in many international documents. It has also been emphasised by the third-party interveners. Thus, the Court is convinced that adequate procedural safeguards must be in place to protect the best interests and well-being of the child, certainly when his or her liberty is at stake. To find otherwise would be to put children at a clear disadvantage compared with adults in the same situation. In this connection, children with disabilities may require additional safeguards to ensure that they are sufficiently protected. The Court would point out that this does not mean, however, that children should be exposed to a fully fledged criminal trial; their rights should be secured in an adapted and age-appropriate setting in line with international standards, in particular the Convention on the Rights of the Child. 220. Having regard to all of the above-mentioned considerations, the Court concludes that the applicant was not afforded a fair trial in the proceedings leading to his placement in the temporary detention centre for juvenile offenders in violation of Article 6 §§ 1 and 3 (c) and (d) of the Convention. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 221. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1. The parties’ submissions 222. The applicant claimed 7,500 euros (EUR) in respect of non-pecuniary damage, as awarded to him by the Chamber in its judgment, although he submitted that it would not fully cover all costs for the recovery of his physical and mental health. 223. The Government contested that sum and considered that if the Court were to find a violation of the Convention, the Court’s judgment in this respect should in itself constitute sufficient just satisfaction for any non-pecuniary damage suffered by the applicant. 2. The Chamber judgment 224. The Chamber, making an assessment on an equitable basis, awarded the applicant EUR 7,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. 3. The Court’s assessment 225. The Court observes that it has found the same combination of violations as the Chamber in the present case. Moreover, the applicant has requested the same sum as granted to him by the Chamber in its judgment. The Court finds this to be an equitable amount and thus awards the applicant EUR 7,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses 1. The parties’ submissions 226. The applicant also claimed a total of 24,979 roubles (RUB) (approximately EUR 417) for legal fees (RUB 20,000), translation costs (RUB 4,620) and postal expenses (RUB 359) incurred before the Grand Chamber, in addition to the sum granted by the Chamber in its judgment. 227. The Government contested both the sum awarded by the Chamber and the applicant’s additional claims before the Grand Chamber. They considered that the available payment receipts submitted to the Court could not be viewed as valid documentary evidence since they bore stamps of a Bar association but were signed by the representative himself. Moreover, no legal-assistance contract between the applicant, or his grandfather, and the representative had been submitted to the Court. The random payment receipts from a translation centre were also insufficient to confirm translation expenses. The Government further pointed out that the representative was not mentioned in any of the domestic courts’ decisions and that his involvement in the proceedings before the Court had been limited, most of the work having been done by the applicant’s grandfather. 2. The Chamber judgment 228. The Chamber awarded the applicant EUR 1,493 for legal fees and translation expenses, plus any tax that may be chargeable to the applicant on that amount. 3. The Court’s assessment 229. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court finds no reason to question the sum granted by the Chamber to the applicant for his costs and expenses. It further finds that the invoices and payment receipts submitted by the applicant to the Court prove that he has paid his representative RUB 20,000 for his legal services in the proceedings before the Grand Chamber. It also accepts in full the invoices and payment receipts relating to costs for translations and postal services. 230. In the light of the above, the Court grants the applicant the full amount claimed, that is, EUR 1,493, for the proceedings before the Chamber and EUR 417 for the proceedings before the Grand Chamber, namely, a total amount of EUR 1,910, plus any tax that may be chargeable to the applicant on that amount. C. Default interest 231. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Grand Chamber held that there had been a violation of Article 6 §§ 1 and 3 of the Convention. It agreed with the Chamber judgment in the case that the proceedings concerning the boy’s placement in the temporary detention centre were to be considered criminal proceedings for the purpose of Article 6, although they had not been classified as criminal under Russian law. In particular, the domestic courts had referred to the fact that the boy had committed a delinquent act as the main reason for his placement in the detention centre. His defence rights had been violated because he had been questioned by the police without legal assistance and the statements of two witnesses whom he was unable to question had served as a basis for his placement in temporary detention. |
282 | (Suspected) terrorists | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Arrest and detention under the Terrorism Act 2000 90. The 2000 Act allows for the arrest and detention without charge of suspected terrorists for a maximum of twenty-eight days. The relevant provisions are set out in more detail below. 1. Power of arrest 91. Section 41(1) of the 2000 Act allows a constable to arrest without a warrant a person whom he reasonably suspects to be a terrorist. The 2000 Act defines a terrorist as either someone who has committed an offence under certain sections of the Act (section 40(1)(a)), or someone who “is or has been concerned in the commission, preparation or instigation of acts of terrorism” (section 40(1)(b)). 92. Terrorism itself is defined in section 1 of the Act in these terms: “(1) ... the use or threat of action where– (a) the action falls within subsection (2), (b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and (c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.” 93. Section 1(2) covers action which: “(a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person’s life, other than that of the person committing the action, (d) creates a serious risk to the health or safety of the public or a section of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system.” 94. Pursuant to section 1(3), the use or threat of action which involves the use of firearms or explosives is terrorism, whether or not section 1(1)(b) is satisfied. 95. Section 41(3) stipulates, in so far as relevant to the present case, that a person detained under section 41 shall, subject to the other provisions of the section and unless detained under any other power, be released not later than a period of forty-eight hours beginning with the time of his arrest under that section. 2. Periodic review 96. Schedule 8, Part II, of the 2000 Act sets out detailed provisions governing the detention of any person arrested under the Act. 97. Pursuant to paragraph 21, a person’s detention should be periodically reviewed by a review officer. The first review should be carried out as soon as reasonably practicable after the time of the person’s arrest. Subsequent reviews must, except in specific limited cases, be carried out at intervals of not more than twelve hours. No review of a person’s detention should be carried out after a warrant extending his detention has been issued by a court (see paragraph 100 below). 98. Paragraph 23 entitles a review officer to authorise a person’s continued detention only if satisfied that it is necessary (a) to obtain relevant evidence whether by questioning him or otherwise; (b) to preserve relevant evidence; or (c) pending the result of an examination or analysis of any relevant evidence. Continued detention cannot be authorised under (a) or (b) unless the review officer is satisfied that the investigation is being conducted diligently and expeditiously. “Relevant evidence” is evidence that relates to the commission by the detained person of an offence set out in the 2000 Act or indicates that the detained person has been concerned in the commission, preparation or instigation of acts of terrorism. 99. Pursuant to paragraph 26, before determining whether to authorise a person’s continued detention, a review officer must give the detained person or his solicitor an opportunity to make oral or written representations about the detention. 3. Warrants of further detention issued by a judicial authority 100. Paragraph 29 of Schedule 8 entitles a Crown Prosecutor or senior police officer to apply to a court for the issue of a warrant of further detention. Under paragraph 36, where the application is to extend the detention up to a maximum of fourteen days from the date of arrest, it can be made to a District Judge. Applications for further detention beyond fourteen days must be put before a High Court judge, who may authorise detention up to a maximum of twenty-eight days in total from the date of arrest. Section 41(7) of the 2000 Act provides that where an application under paragraph 29 or 36 of Schedule 8 is granted in respect of a person’s detention, he may be detained during the period specified in the warrant. 101. Pursuant to paragraph 31 of Schedule 8, a detained person must be given notice of the application for a warrant of further detention and the grounds on which further detention is sought. Paragraph 33 allows the detained person an opportunity to make oral or written representations about the application for a warrant of further detention and provides a general entitlement to legal representation at the hearing. Pursuant to paragraph 33(3), the court may exclude the detained person and his solicitor from any part of the hearing. 102. Paragraph 34 provides that the person who has made an application for a warrant may apply for an order that specified information upon which he relies be withheld from the detained person and his solicitor. A court may make such an order only if satisfied that there are reasonable grounds for believing that, if the information were disclosed, evidence would be interfered with or harmed; the apprehension, prosecution or conviction of a suspected terrorist would be made more difficult as a result of his being alerted; the prevention of an act of terrorism would be made more difficult as a result of a person being alerted; the gathering of information about the commission, preparation or instigation of an act of terrorism would be interfered with; or a person would be interfered with or physically injured. 103. Paragraph 32(1) provides that a warrant of further detention may be issued only if there are reasonable grounds for believing that the further detention of the person is necessary and the investigation is being conducted diligently and expeditiously. Pursuant to paragraph 32(1A), the further detention of a person is “necessary” if it is necessary to obtain relevant evidence whether by questioning him or otherwise; to preserve relevant evidence; or pending the result of an examination or analysis of any relevant evidence. “Relevant evidence” is evidence that relates to the commission by the detained person of an offence set out in the 2000 Act or indicates that the detained person has been concerned in the commission, preparation or instigation of acts of terrorism. 104. In Ward v. Police Service of Northern Ireland ([2007] UKHL 50), the House of Lords considered the fairness of the provisions of Schedule 8 in a case where the judge had excluded the appellant and his solicitor from a hearing on an application to extend a warrant of detention for about ten minutes to consider closed information. The appellant sought judicial review of the decision to grant the warrant of further detention and his claim was refused. His appeal to the House of Lords was subsequently dismissed. The Appellate Committee explained at the outset: “11. Section 41 of the Act ... enables a constable to arrest without warrant a person whom he reasonably suspects to be a terrorist. The length of the detention that may follow on such an arrest is the subject of a carefully constructed timetable. This timetable, in its turn, is the subject of a series of carefully constructed procedural safeguards. The detained person’s right to liberty demands that scrupulous attention be paid to those safeguards. ...” 105. After careful consideration of the provisions of the 2000 Act permitting the detained person and his representative to be excluded from part of a hearing, the Committee stated as follows. “27. ... [T]he procedure before the judicial authority which para 33 contemplates has been conceived in the interests of the detained person and not those of the police. It gives the person to whom the application relates the right to make representations and to be represented at the hearing. But it recognises too the sensitive nature of the inquiries that the judicial authority may wish to make to be satisfied, in that person’s best interests, that there are reasonable grounds for believing that the further detention that is being sought is necessary. The more penetrating the examination of this issue becomes, the more sensitive it is likely to be. The longer the period during which an extension is permitted, the more important it is that the grounds for the application are carefully and diligently scrutinised. 28. As in this case, the judicial authority’s need to scrutinise may trespass upon the right of the police to withhold from a suspect the line of questioning they intend to pursue until he is being interviewed. If it does, it will not be to the detained person’s disadvantage for him to be excluded so that the judicial authority may examine that issue more closely to see whether the exacting test for an extension that para 32 lays down is satisfied. The power will not in that event be being used against the detained person but for his benefit. ... 29. There may be cases where there is a risk that the power given to the judicial authority by para 33(3) will operate to the detained person’s disadvantage. Those cases are likely to be rare, but the judicial authority must always be careful not to exercise it in that way. ...” B. Search powers under the 2000 Act 106. Schedule 5 of the 2000 Act sets out powers relating to searches. Paragraph 1 of Schedule 5 allows a constable to apply to a justice of the peace for the issue of a warrant for the purposes of a terrorist investigation authorising any constable to enter premises, search them and seize and retain any relevant material found. Pursuant to paragraph 1(3), material is relevant if the constable has reasonable grounds for believing that it is likely to be of substantial value to a terrorist investigation and it must be seized in order to prevent it from being concealed, lost, damaged, altered or destroyed. 107. Paragraph 1(5) provides that a justice may grant an application if satisfied that the warrant is sought for the purposes of a terrorist investigation; that there are reasonable grounds for believing that there is material on the premises which is likely to be of substantial value, whether by itself or together with other material, to a terrorist investigation; and that the issue of a warrant is likely to be necessary in the circumstances of the case. C. Judicial review 1. Appropriateness of remedy (a) Decisions to arrest and detain 108. In R (Rawlinson & Hunter Trustees and Others) v. Central Criminal Court & Anor [2012] EWHC (Admin) 2254, the claimant had been arrested and sought to challenge by way of judicial review the decision to arrest him. Although there was some discussion of whether judicial review was the appropriate forum, the police accepted that judicial review was the appropriate way to challenge the arrest decision and the Divisional Court agreed. It appears that the claimant had accepted in the proceedings before the court that there was no significant factual dispute between the parties and the claim could be resolved on the basis of the documentary evidence. (b) Decisions to grant search warrants 109. In Bell v. Greater Manchester Police [2005] EWCA Civ 902, the claimant sought to challenge the validity of a search warrant in private law proceedings. He complained that the warrant had been obtained on a misleading basis and that it did not properly identify the material the subject of the search. The Court of Appeal agreed with the first-instance judge that the proper avenue for challenge to the validity of the warrant was by way of proceedings for judicial review. 110. In R (Goode) v. Crown Court at Nottingham [2013] EWHC 1726 (Admin) the Administrative Court said: “51. The issue of a [search] warrant is a judicial act. It would be a novel and surprising development of the law if a court of equal jurisdiction enjoyed the power to declare invalid the judicial act of another ...” 111. The court emphasised that while a seizure of property without judicial authority could be challenged in the Crown Court, a warrant issued with judicial authority could subsequently be quashed or declared unlawful only by the Administrative Court in proceedings for judicial review of the power exercised by the Magistrates Court or the Crown Court. 112. In R (Lees and Others) v. Solihull Magistrates’ Court and Another [2013] EWHC 3779 (Admin), the Divisional Court, citing R (Goode), said that it was clear that the only forum for a challenge to the validity of a search warrant was in judicial review proceedings. 2. Appeal against a refusal to grant permission 113. Rule 52.15 of the Civil Procedure Rules (“CPR”) provides: “(1) Where permission to apply for judicial review has been refused at a hearing in the High Court, the person seeking that permission may apply to the Court of Appeal for permission to appeal.” 114. Section 18(1) of the Senior Courts Act 1981 provides, in so far as relevant: “ No appeal shall lie to the Court of Appeal– (a) ... from any judgment of the High Court in any criminal cause or matter” 115. In Amand v. Home Secretary and Minister of Defence of Royal Netherlands Government [1943] A.C. 147, the House of Lords decided that the refusal of an application for habeas corpus by a person arrested with a view to extradition was a decision in a “criminal cause or matter” (as set out in a predecessor Act). Viscount Simon LC held: “This distinction between cases of habeas corpus in a criminal matter, and cases when the matter is not criminal goes back very far ... It is the nature and character of the proceeding in which habeas corpus is sought which provide the test. If the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is criminal.” 116. Lord Wright explained: “The principle which I deduce from the authorities I have cited and the other relevant authorities which I have considered, is that if the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment such as imprisonment or a fine, it is a ‘criminal cause or matter.’ The person charged is thus put in jeopardy. Every order made in such a cause or matter by an English court, is an order in a criminal cause or matter, even though the order, taken by itself, is neutral in character and might equally have been made in a cause or matter which is not criminal. The order may not involve punishment by the law of this country, but if the effect of the order is to subject by means of the operation of English law the persons charged to the criminal jurisdiction of a foreign country, the order is, in the eyes of English law for the purposes being considered, an order in a criminal cause or matter ...” 117. Finally, Lord Porter held: “... This does not mean that the matter, to be criminal, must be criminal throughout. It is enough if the proceeding in respect of which mandamus was asked is criminal, e.g., the recovery of a poor rate is not of itself a criminal matter, but its enforcement by magistrates by warrant of distress is, and if a case be stated by them as to their right so to enforce it and that the case is determined by the High Court, no appeal lies ... The proceeding from which the appeal is attempted to be taken must be a step in a criminal proceeding, but it need not of itself of necessity end in a criminal trial or punishment. It is enough if it puts the person brought up before the magistrate in jeopardy of a criminal charge ...” 118. In R (Guardian News and Media Ltd) v. City of Westminster Magistrates’ Court [2011] EWCA Civ 1188, a newspaper had unsuccessfully requested access to documents referred to by the Magistrates’ Court in extradition proceedings. The Divisional Court upheld the ruling of the District Judge. The question arose in the Court of Appeal whether the proceedings were a “criminal cause or matter”. The newspaper accepted that the extradition proceedings themselves were a “criminal cause or matter” but submitted that the order refusing journalistic access to the underlying material was not. Lord Neuberger, delivering the judgment of the court, undertook a review of the authorities in the area and considered that the newspaper’s application had been wholly collateral to the extradition proceedings and made by someone not a party to those proceedings. The order of the District Judge did not invoke the Magistrates’ Court’s criminal jurisdiction and had no bearing upon the criminal (i.e. extradition) proceedings themselves. Lord Neuberger expressed the opinion that “any sort of final coherence in relation to the scope and effect of section 18(1)(a) can only be provided by the Supreme Court” and concluded that the best way of applying the “rather tangled” jurisprudence developed over the past thirty-five years, and ensuring maximum coherence, was to hold that the Court of Appeal had jurisdiction to hear the appeal in the case. 119. In its December 2014 judgment in Panesar & Others v HM Revenue and Customs [2014] EWCA Civ 1613 the Court of Appeal considered the meaning of “criminal cause or matter” in a case concerning retention, under section 59 of the Criminal Justice and Police Act 2001, of property seized pursuant to search warrants that were subsequently quashed. The court found that the case concerned a “criminal cause or matter” and concluded that it had no jurisdiction to hear an appeal. The appellants were instead obliged to make their application to the Divisional Court for certification of a point of law of general importance and pursue their appeal to the Supreme Court. Lord Justice Burnett referred to the “ at times inconsistent authority on the meaning of ‘criminal cause or matter’” and acknowledged that the authorities on the meaning of “criminal cause or matter” had “given rise to some uncertainty and, as Lord Neuberger recognised in the Guardian case, some incoherence”. D. The Human Rights Act 1998 120. Section 3(1) of the Human Rights Act 1998 (“the Human Rights Act”) requires legislation to be “read down” so far as possible in order to be interpreted compatibly with the Convention. 121. Section 4 of the Act provides, in so far as relevant: “(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.” 122. Section 6(1) of the Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Section 6(2) clarifies that: “Subsection (1) does not apply to an act if– (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.” 123. Section 7(1) provides that a person who claims that a public authority has acted in a way made unlawful by section 6(1) may bring proceedings against the authority. 124. Section 8(1) of the Act permits a court to make a damages award in relation to any act of a public authority which the court finds to be unlawful. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 §§ 2 AND 4 OF THE CONVENTION IN RESPECT OF PROVISION OF INFORMATION 125. The applicants complained that they were not given adequate information by the police about the specific allegations against them to enable them to mount an effective challenge to the lawfulness of their detention. They relied on Article 5 §§ 2 and 4 of the Convention, which provide in so far as relevant as follows: “2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.” “4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. Admissibility 1. The parties’ submissions 126. The Government’s position was that the applicants had failed to exhaust available remedies as regards this complaint in two respects. First, they had failed to bring a private-law claim concerning their complaint about the provision of information regarding their arrest and detention. The Government pointed out that the Divisional Court had held that the complaints should have been brought by way of a private-law action because they raised fact-sensitive issues inappropriate for judicial review proceedings. In light of the Divisional Court judgment, the applicants could undoubtedly have brought a civil damages claim in respect of their arrest and initial detention. The Government emphasised that the applicants did not argue that their detention was lawful under domestic law irrespective of compliance with Article 5 of the Convention, such that the only appropriate remedy would be a declaration of incompatibility under the Human Rights Act (see paragraph 121 above). In so far as the applicants contended that they were unable to pursue a private-law claim from Pakistan and would not have been able to obtain legal funding, the Government pointed out that the applicants had pursued the judicial review claim and the case before this Court without difficulty. It was also relevant, the Government argued, that the applicants were not excluded in principle from obtaining legal aid and, in any case, refusal to grant legal aid would not have rendered the bringing of a private-law claim impractical. 127. Second, the Government argued that the applicants had failed to exhaust available remedies because they had not renewed their application for permission to bring judicial review to the Court of Appeal. The CPR made provision for renewal of an application for permission to the Court of Appeal under Rule 52.15(1) (see paragraph 113 above). Although section 18(1)(a) of the 1981 Act precluded such appeals in any “criminal cause or matter” (see paragraph 114 above), the Government did not agree that the applicants’ complaints before the Divisional Court concerned a “criminal cause or matter”. The Divisional Court had found that complaints in respect of the applicants’ arrest and initial detention should have been brought by private-law action and claims against the police, whether in judicial review or by way of private-law claims, were civil in nature. 128. The applicants did not accept that they could have brought a private-law action in respect of their complaints. In their view, the challenge brought could only have proceeded by way of judicial review. They referred to the Divisional Court’s judgment in Rawlinson (see paragraph 108 above) in support of their position that it was perfectly proper for matters of arrest and detention to be challenged by way of judicial review. They argued that it would not have been possible to seek a declaration of incompatibility as the basis for unlawful detention in a private-law action. They further contended that legal aid would have been impossible to obtain, particularly given budgetary cuts and the fact that the applicants were, by that stage, resident abroad. 129. The applicants also argued that, in light of section 18(1)(a) of the 1981 Act, they had no right to renew their application for permission before the Court of Appeal, permission having been refused by the Divisional Court in a “criminal cause or matter”. They insisted that there could be no doubt that all the matters that were before the Divisional Court were criminal causes or matters and referred to the Court of Appeal’s judgment in Panesar (see paragraph 119 above). 2. The Court’s assessment 130. It is primordial that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It cannot, and must not, usurp the role of Contracting States whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is therefore an indispensable part of the functioning of this system of protection. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, amongst many authorities, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996 ‑ IV; and Gough v. the United Kingdom, no. 49327/11, § 137, 28 October 2014 ). 131. As stipulated in its Akdivar judgment (cited above, §§ 66-67), normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see also Gough, cited above § 138). 132. As the Court also held in Akdivar (cited above, § 68), in the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see also Gough, cited above § 139). 133. Finally, the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up and that it must therefore be applied with some degree of flexibility and without excessive formalism (see Akdivar, cited above, § 69; and Gough, cited above § 140). 134. In the present case the Government have argued that two remedies were open to the applicants to pursue further their complaints concerning the alleged inadequacy of the information provided to them at the time of their arrest and detention. The applicants contested the availability of either remedy on the facts of their case. 135. It is generally unsatisfactory for this Court to find itself in the position of being asked to pronounce on the correct interpretation of domestic law. Both the question whether the present complaint ought to have been pursued in private-law proceedings and the question whether it concerned a “criminal cause or matter”, thus excluding the jurisdiction of the Court of Appeal, are questions better resolved by the domestic courts. However, the Court is required to assess whether domestic remedies have been exhausted and where there is a dispute between the parties about the effectiveness of a particular remedy the Court will decide the matter in accordance with the principles outlined above (see paragraphs 130 - 133 ). 136. As regards the first question, the Divisional Court made its view that private-law proceedings were appropriate to challenge the arrest and detention decisions by the police in the applicants’ case very clear in its judgment. As noted above, it is in principle for the domestic courts to determine such questions and the finding of an independent and impartial superior court, such as that of the Divisional Court in the present case, that a remedy is available will generally constitute prima facie evidence of the existence of such remedy. The applicants referred to the case of Rawlinson (see paragraph 108 above) in support of their argument that judicial review, and not private-law proceedings, was the appropriate route to challenge arrest and detention decisions. However, it does not appear that the Divisional Court’s judgment in that case provides support for the general rule contended for by the applicants and the applicants did not point to any specific passage of that judgment which they contended could carry such an interpretation. Moreover, while in their initial application they claimed that it would have been impossible to obtain legal aid for private-law proceedings, as the Government pointed out (see paragraph 126 above), they were not excluded in principle from the possibility of applying for legal aid. In these circumstances; and in the absence of any cited authority or examples of a restrictive approach to the award of legal aid in cases such as the applicants’, the argument that legal aid would not have been available is wholly speculative. 137. Further, the Court is of the opinion that the applicants have failed to demonstrate that they were not able to renew their application for permission to bring judicial review to the Court of Appeal. The domestic judgment cited by the applicants and other judgments to which it refers (see paragraphs 115 - 119 above) are of little assistance, since the finding that a “criminal cause or matter” was at stake in those cases followed a careful discussion of the specific facts of the cases. The judgments themselves recognise the ambiguity surrounding the meaning of “criminal cause or matter”, with Lord Neuberger expressing the view that only the Supreme Court would be in a position to resolve the question (see paragraph 118 above). Subsequently, in Panesar, the Court of Appeal recognised the uncertainty and incoherence to which the existing, at times inconsistent, authorities had given rise (see paragraph 119 above). While the court in that case concluded that a “criminal cause of matter” was at stake, its conclusion followed a careful examination of section 59 of the Criminal Justice and Police Act 2001, the legislative provision in respect of which the proceedings had been brought. That provision is not implicated in the present case. Given the finding of the Divisional Court as to the private-law nature of the applicants’ claim, it cannot be said with any degree of certainty that the Court of Appeal would have found that the case concerned a “criminal cause or matter” and that that court accordingly had no jurisdiction in the case. 138. The rule of exhaustion in Article 35 § 1 reflects the fundamentally subsidiary role of the Convention mechanism. The fact that the applicants dispute the findings of the Divisional Court, adjudicating at first instance, as to the true nature of the claims advanced and the appropriate domestic remedy merely underlines the importance of review of that judgment by a more senior domestic court. The Court is satisfied that the Government have demonstrated the availability of remedies that were effective and available in theory and in practice at the relevant time, that is to say, that they were accessible, capable of providing redress in respect of the applicants’ complaint and offered reasonable prospects of success. The applicants have failed to establish that these remedies were inadequate and ineffective in the particular circumstances of their case or that there existed special circumstances absolving them from the requirement to pursue them. 139. The applicants’ complaints under Article 5 §§ 2 and 4 as regards provision of information by the police concerning the reasons for their arrest and detention are accordingly inadmissible and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION AS REGARDS THE PROCEDURE FOR GRANTING WARRANTS OF FURTHER DETENTION 140. The applicants complained that the procedure for hearing applications for warrants of further detention under Schedule 8 of the 2000 Act (see paragraphs 100 - 103 above) was incompatible with Articles 5 § 4 and 6 § 1 because it allowed evidence to be given in closed session and made no provision for special advocates. The Court considers that the complaint falls to be examined under Article 5 § 4 of the Convention only, which reads: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” 141. The Government contested the applicants’ argument. A. Admissibility 142. The Government accepted that section 18(1)(a) of the 1981 Act (see paragraph 114 above) was likely to have prevented an appeal to the Court of Appeal in respect of this complaint. They did not argue that this complaint was inadmissible on non-exhaustion grounds. 143. The Court is satisfied that the application raises arguable issues under Article 5 § 4 of the Convention, so that it cannot be rejected as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. The Court further considers that the application is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicants 144. The applicants conceded that they did not make an application at either hearing before the City of Westminster Magistrates’ Court for a special advocate but argued that the right to a special advocate should have been explicit in the legislation. They accepted that the procedural safeguards in Article 5 § 4 were not unvarying. However, they maintained that if both domestic and European courts had held that the provision of special advocates and sufficient information in open session were necessary to safeguard Article 5 rights of individuals where there had been an interference with those rights falling short of a deprivation of liberty, then it had to follow that at least that level of protection was to be afforded where a deprivation of liberty was at stake. The failure to provide disclosure to the applicants compounded the problem. In these circumstances, decisions were made, or might be made, almost entirely based on evidence given in closed session. In the applicants’ view, the Government had failed to justify their position that their case could be distinguished from that in A. and Others v. the United Kingdom ([GC], no. 3455/05, ECHR 2009). (b) The Government 145. The Government argued that the procedural requirements of Article 5 § 4 were not unvarying but depended on the particular circumstances. They emphasised that the applicants’ case involved an extremely complex investigation into a suspected imminent terrorist attack. 146. Distinguishing A. and Others v. the United Kingdom, cited above, the Government pointed out that the applicants in the present case were detained for a total of thirteen days only and that the Article 5 § 4 requirements formulated in the context of the former case applied against the backdrop of lengthy or indefinite detention pending charge. Although the applicants had not been privy to all the information placed before the District Judges, they were not deprived of their Article 5 § 4 rights since (i) they were informed of the legal basis and reasons for their detention; (ii) they were legally represented and able to make submissions to the District Judges, as well as to call evidence or to cross-examine the police-officer witness; (iii) the more detailed explanation of the reasons for which detention was being sought was fully before the District Judges, even if it was withheld from the applicants; (iv) the procedure employed enabled the District Judges to be given a detailed explanation of the basis for suspicions so that they could ask questions and, if not satisfied, refuse to order detention; and (v) it was open to the District Judges to order the appointment of a special advocate if they considered it appropriate. 2. The Court’s assessment (a) General principles 147. As the Court explained in A. and Others v. the United Kingdom, cited above, § 203, the requirement of procedural fairness under Article 5 § 4 does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. As a general rule, an Article 5 § 4 procedure must have a judicial character but it is not always necessary that the procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation. The guarantees it provides must be appropriate to the type of deprivation of liberty in question. 148. A deprivation of liberty under Article 5 § 1 (c), as in the present case, is permitted where there is a reasonable suspicion that a person has committed an offence. A key question for a court reviewing the legality of detention is whether a reasonable suspicion exists. It will be for the authorities to present evidence to the court demonstrating grounds for such a reasonable suspicion. This evidence should in principle be disclosed to the applicant to enable him to challenge the grounds relied upon. 149. However, as the Court has explained, terrorist crime falls into a special category. Because of the attendant risk of loss of life and human suffering, the police are obliged to act with the utmost urgency in following up all information, including information from secret sources. Further, the police may frequently have to arrest a suspected terrorist on the basis of information which is reliable but which cannot, without putting in jeopardy the source of the information, be revealed to the suspect or produced in court. Article 5 § 1 (c) of the Convention should not be applied in such a manner as to put disproportionate difficulties in the way of the police authorities in taking effective measures to counter organised terrorism in discharge of their duty under the Convention to protect the right to life and the right to bodily security of members of the public. Contracting States cannot be asked to establish the reasonableness of the suspicion grounding the arrest of a suspected terrorist by disclosing the confidential sources of supporting information or even facts which would be susceptible of indicating such sources or their identity (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, §§ 32-34, Series A no. 182 ). It follows that Article 5 § 4 cannot require disclosure of such material or preclude the holding of a closed hearing to allow a court to consider confidential material. Pursuant to Article 5 § 4, the authorities must disclose adequate information to enable the applicant to know the nature of the allegations against him and have the opportunity to lead evidence to refute them. They must also ensure that the applicant or his legal advisers are able to participate effectively in court proceedings concerning continued detention. (b) Application of the general principles to the facts of the case 150. In A. and Others v. the United Kingdom (cited above, § 216) the Court took as its starting-point that, at the time of the detention of the applicants in that case, there was considered to be an urgent need to protect the population of the United Kingdom from terrorist attack by al-Qaeda and a strong public interest in obtaining information about al-Qaeda and its associates and in maintaining the secrecy of the sources of such information. The present case, like that in A. and Others v. the United Kingdom, concerned allegations of a planned large-scale terrorist attack which, if carried out, was likely to result in significant loss of life and serious injury. The applicants did not argue that the context of their arrests was inadequate to justify the holding of a closed hearing and restrictions on their right to disclosure. The Court is satisfied that the threat of an imminent terrorist attack, identified in the course of Operation Pathway, provided ample justification for the imposition of some restrictions on the adversarial nature of the proceedings concerning the warrants for further detention, for reasons of national security. 151. In terms of the applicable legal framework governing proceedings for warrants of further detention, Schedule 8 to the 2000 Act sets out clear and detailed procedural rules. Thus, a detained person must be given notice of an application for a warrant of further detention and details of the grounds upon which further detention is sought. He is entitled to legal representation at the hearing and has the right to make written or oral submissions. The possibility of withholding specified information from the detained person and his lawyer is likewise provided for in Schedule 8 and is subject to the court’s authorisation. Schedule 8 also sets out the right of the court to order that a detained person and his lawyer be excluded from any part of a hearing. The grounds for granting a warrant of further detention are listed in Schedule 8 (see paragraphs 100 - 103 above). 152. The proceedings in the present case, which took place before the City of Westminster Magistrates’ Court, were judicial in nature and followed the procedure set out in Schedule 8. An application for the warrants of further detention was made and served on the applicants the day before each of the two hearings (see paragraphs 39 and 58 above). The majority of each application was disclosed, with only information in section 9 of the application, concerning the further inquiries to be made, being withheld (see paragraphs 40 and 58 above). That information was provided to the District Judge and the applicants were given reasons for the withholding of the information (see paragraph 42 above). 153. It is true that part of the hearing on 10 April 2009 was closed to enable the District Judge to scrutinise and ask questions about the section 9 material (see paragraph 41 above). However, as the House of Lords explained in Ward (see paragraph 105 above), the procedure in Schedule 8 allowing the court to exclude the applicants and their lawyers from any part of a hearing was conceived in the interests of the detained person, and not in the interests of the police. It enabled the court to conduct a penetrating examination of the grounds relied upon by the police to justify further detention in order to satisfy itself, in the detained person’s best interests, that there were reasonable grounds for believing that further detention was necessary. The Court is further satisfied that the District Judge was best placed to ensure that no material was unnecessarily withheld from the applicants (see, similarly, A. and Others v. the United Kingdom, cited above, § 218). 154. The applicants complain specifically of the failure of the Schedule 8 procedure to make provision for the appointment of a special advocate. However, it is clear from the judgment of the Divisional Court that the District Judge had the power to appoint a special advocate if he considered such appointment necessary to secure the fairness of the proceedings (see paragraph 88 above). The applicants do not contest that finding. It is noteworthy that the applicants did not request the appointment of a special advocate at any stage in the proceedings in respect of either application. 155. At the open hearings, the senior police officer making the application explained orally why the application was being made and, at the second hearing, provided details regarding the progress of the investigation and the examination of material seized during the searches (see paragraphs 42 and 59 above). The applicants were legally represented and their solicitor was able to cross-examine the police-officer witness, and did so at the first hearing on 10 April 2009 (see paragraph 43 above). 156. In the light of the foregoing, the Court is satisfied that there was no unfairness in the proceedings leading to the grant of the warrants of further detention on 10 and 15 April 2009. In particular, the absence of express legislative provision for the appointment of a special advocate did not render the proceedings incompatible with Article 5 § 4 of the Convention. 157. There has accordingly been no violation of Article 5 § 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 158. The applicants complained that the searches of their premises violated their right to respect for their private lives and homes because: (i) the warrants permitted entry and search “on one occasion” only which could not be equated with continuous occupation; and (ii) the warrants were drawn too widely, thereby permitting search for, and seizure of, almost any item of property. They relied on Article 8 of the Convention, which provides: “ 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety ..., for the prevention of disorder or crime, ... or for the protection of the rights and freedoms of others.” 159. In respect of the latter complaint the applicants also relied on Article 1 of Protocol No. 1 but the Court considers that the matter is more appropriately examined from the standpoint of Article 8 of the Convention only. 160. The Government contested the argument that a violation of Article 8 had occurred. A. Admissibility 1. The parties’ submissions 161. The Government argued that the complaint as to the manner in which the searches were carried out was inadmissible because the applicants had failed to exhaust available remedies. They referred again to the possibility of bringing a private-law remedy and to the failure of the applicants to seek permission from the Court of Appeal (see paragraphs 126 ‑ 127 above). In so far as Mr Sher complained about the search of his business premises, the Government pointed out that this complaint had not been raised at all in the domestic proceedings. However, the Government accepted that the complaint in respect of the scope of the search warrants was amenable to judicial review and that section 18(1)(a) of the 1981 Act (see paragraph 114 above) was likely to have prevented any appeal to the Court of Appeal. 162. The applicants claimed that it had long been settled law that search warrants could only be challenged in proceedings for judicial review, because it was the lawfulness of an order of the court that was challenged. They referred to domestic case-law (see paragraphs 109 - 112 above) and argued that the Divisional Court and the Government were wrong on this point. The applicants also relied again on the effect of section 18(1)(a) of the 1981 Act. 2. The Court’s assessment 163. The Court reiterates its comments as regards the subsidiary nature of the Convention mechanism (see paragraph 138 above). It is significant that the Divisional Court considered the manner of execution of the warrant to be a private-law issue unsuitable for judicial review proceedings (see paragraph 83 above).The cases to which the applicants referred, which concerned the issues surrounding the validity and quashing of search warrants, do not appear sufficient to displace the evidence provided by the Divisional Court’s judgment of the prima facie existence of an available and effective remedy. The Court further reiterates its comments in respect of the application of section 18(1)(1a) of the 1981 Act (see paragraph 137 above). The complaint in respect of the manner of execution of the warrant must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention. 164. As regards the search of Mr Sher’s business premises, it is clear from the judgment of the Divisional Court that no relevant complaint was made in the domestic proceedings (see paragraph 73 above). This complaint must also be rejected, pursuant to Article 35 §§ 1 and 4, on account of the failure to exhaust domestic remedies. 165. Finally, the Court is satisfied that the complaint concerning the scope of the search warrants issued in respect of the applicants’ homes raises arguable issues under Article 8 of the Convention, so that it cannot be rejected as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. The Court further considers that the complaint is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicants 166. The applicants maintained that the warrants were unjustifiably wide in scope. (b) The Government 167. The Government accepted that the search of the applicants’ homes amounted to an interference with their Article 8 rights. The question was whether the reasons adduced to justify the measures were relevant and sufficient and whether the proportionality principle had been respected. The Government considered these conditions to be satisfied and made a number of points in this respect. 168. Firstly, they emphasised that the warrants were issued by a judicial authority which was satisfied that the relevant statutory criteria had been met, namely, that the warrants were sought for the purposes of a terrorist investigation; that there were reasonable grounds for believing that there would be material on the premises which was likely to be of substantial value to the investigation; and that the issue of a warrant was likely to be necessary in the circumstances of the case. Secondly, the warrants did not purport to grant authority to seize protected or privileged material. Thirdly, the warrant was expressly worded so that any constable was only authorised to seize articles in respect of which application had been made or to seize and retain “relevant” materials found during the search, thus excluding seizure or retention of material not justified by the terrorist investigation. Fourthly, the width of the description of relevant material was justified by the fact that the police had genuine and reasonable concerns about an imminent terrorist attack and elaborate reasoning as to precisely what items might prove to be relevant was not consistent with the urgency of the situation. The width was also justified by the nature of the investigation, which concerned a sophisticated terrorist plot in which different media (in particular electronic media) were reasonably suspected of being used by the plotters to communicate. Fifthly, the warrants and searches were subject to a further safeguard in the form of an ex post facto judicial review or claim for damages. In the present case the applicants were unable to identify any item seized or searched for that was not justified by reference to the particular nature of the investigation. 169. As regards the comments of the third-party intervener, the Government considered that they concerned an unjustified trawl and retention of personal data that was not the subject of the applicants’ complaint or the domestic proceedings. Notwithstanding the sincerity of the concerns raised, the Government maintained that there was no basis for concluding that searches of the applicants’ electronic data were not justified. (c) The third-party intervener 170. The third-party intervener, Privacy International, focused its comments on searches of electronic devices, which entailed access to personal and communications data. It emphasised the innovations in technology which had resulted in previously unimagined forms of collecting, storing, sharing and analysing data. Access by law-enforcement officers to an individual’s electronic devices could enable access to everything that person had ever digitally touched, encompassing data not stored on the device itself but on external networked servers. The combination of data available could be extremely revelatory. In light of the particularly intrusive nature of searches of electronic devices, Privacy International argued for a high threshold when determining whether an interference with Article 8 rights was justified. 2. The Court’s assessment 171. It is not contested that the search of the applicants’ homes amounted to an interference with their right under paragraph 1 of Article 8 to respect for their private lives and homes. 172. The applicants did not dispute that the issue of the search warrants was “in accordance with the law” and in pursuit of a legitimate aim, as required by paragraph 2 of Article 8. The question for the Court is whether the measure complained of was “necessary in a democratic society”, in other words, whether the relationship between the aim sought to be achieved and the means employed can be considered proportionate (see Robathin v. Austria, no. 30457/06, § 43, 3 July 2012). Elements taken into consideration are, in particular, whether the search was undertaken pursuant to a warrant issued by a judge and based on reasonable suspicion; whether the scope of the warrant was reasonably limited; and – where the search of a lawyer’s office was concerned – whether the search was carried out in the presence of an independent observer in order to ensure that materials subject to professional secrecy were not removed (see Robathin, cited above, § 44, and Wieser and Bicos Beteiligungen GmbH v. Austria, no. 74336/01, § 57, ECHR 2007 ‑ IV ). 173. The warrant in the present case was issued by a District Judge in the Magistrates’ Court, in the context of criminal proceedings against the applicants on suspicion of involvement in terrorism. The police officer making the application confirmed that he had reasonable grounds for believing that the material at the addresses identified was likely to be of substantial value to a terrorism investigation and the judge agreed (see paragraph 33 - 35 above). The applicants did not suggest that there were no reasonable grounds for granting the warrant. 174. It is true that the search warrant was couched in relatively broad terms. While limiting the search and seizure of files to specific addresses, it authorised in a general and unlimited manner the search and seizure of correspondence, books, electronic equipment, financial documents and numerous other items. However, the specificity of the list of items susceptible to seizure in a search conducted by law-enforcement officers will vary from case to case depending on the nature of the allegations in question. Cases such as the present one, which involve allegations of a planned large-scale terrorist attack, pose particular challenges, since, while there may be sufficient evidence to give rise to a reasonable suspicion that an attack is under preparation, an absence of specific information about the intended nature of the attack or its targets make precise identification of items sought during a search impossible. Further, the complexity of such cases may justify a search based on terms that are wider than would otherwise be permissible. Multiple suspects and use of coded language, as in the present case, compound the difficulty faced by the police in seeking to identify in advance of the search the specific nature of the items and documents sought. Finally, the urgency of the situation cannot be ignored. To impose under Article 8 the requirement that a search warrant identify in detail the precise nature of the items sought and to be seized could seriously jeopardise the effectiveness of an investigation where numerous lives might be at stake. In cases of this nature, the police must be permitted some flexibility to assess, on the basis of what is encountered during the search, which items might be linked to terrorist activities and to seize them for further examination. While searches of electronic devices raise particularly sensitive issues, and arguably require specific safeguards to protect against excessive interference with personal data, such searches were not the subject of the applicants’ complaints or the domestic proceedings in this case and, in consequence, no evidence has been led by the parties as to the presence or otherwise of such safeguards in English law. 175. Finally, it is of some relevance in the present case that the applicants had a remedy in respect of the seized items in the form of an ex post facto judicial review claim or a claim for damages (see paragraph 168 above). It is noteworthy that they did not seek to challenge the seizure of any specific item during the search, nor did they point to any item which they contend was seized or searched for unjustifiably by reference to the nature of the investigation. 176. For these reasons, the Court concludes that the search warrants in the present case cannot be regarded as having been excessively wide. The national authorities were therefore entitled to consider that the resultant “interference” with the applicants’ right to respect for their private lives and homes was “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention. | The Court held that there had been no violation of Article 5 § 4 of the Convention. It observed in particular that the UK authorities had suspected an imminent terrorist attack and had launched an extremely complex investigation aimed at thwarting it. Reiterating that terrorism fell into a special category, it found that Article 5 § 4 could not be used to prevent the use of a closed hearing or to place disproportionate difficulties in the way of police authorities in taking effective measures to counter terrorism. In the applicants’ case, the threat of an imminent terrorist attack and national security considerations had justified restrictions on the applicants’ right to adversarial proceedings concerning the warrants for their further detention. Moreover, there had been sufficient safeguards against the risk of arbitrariness in respect of the proceedings for warrants of further detention, in the form of a legal framework setting out clear and detailed procedural rules. |
355 | Violence by private individuals | RELEVANT LEGAL FRAMEWORK AND PRACTICE Relevant domestic lawConstitution Constitution Constitution 31. The relevant provisions of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2014) read as follows: Article 14(1) “Everyone in the Republic of Croatia shall enjoy rights and freedoms regardless of their race, colour, sex, language, religion, political or other belief, national or social origin, property, birth, education, social status or other characteristics.” Article 23 “No one shall be subjected to any form of ill-treatment ...” Article 31(2) “Nobody can be tried or convicted twice in criminal proceedings for the same criminal offence for which he or she has been finally acquitted or convicted in accordance with the law” Article 35 “Everyone has the right to respect for and legal protection of his or her private ... life ...” Criminal Code 32. The relevant provisions of the Criminal Code ( Kazneni zakon, Official Gazette no. 110/1997, with further amendments; hereinafter “the 1997 Criminal Code”), applicable at the relevant time, provided: Article 8 “(1) Criminal proceedings in respect of criminal offences shall be instituted by the State Attorney’s Office in the interest of the Republic of Croatia and its citizens. (2) In exceptional circumstances the law may provide for criminal proceedings in respect of certain criminal offences to be instituted on the basis of a private prosecution or for the State Attorney’s Office to institute criminal proceedings following [a private] application.” Article 89(36) “Hate crime is any criminal offence under this Code, committed as a result of hatred towards a person because of his or her ... sexual orientation ...” Article 98 “Anyone who inflicts bodily injury on another or impairs another’s health shall be fined or sentenced to imprisonment for a term not exceeding one year.” Article 102 “Criminal proceedings for the offence of inflicting bodily injury (Article 98) ... shall be instituted by means of a private prosecution.” Article 99 “(1) Anyone who inflicts grievous bodily harm on another or seriously impairs another’s health shall be sentenced to imprisonment for a term of from six months to three years. ... (4) An attempt to commit the offence under paragraph 1 of this Article shall also be punishable.” Article 174(1) “Whoever on the basis of differences related to ... other status ... breaches basic human rights and freedoms recognised by the international community shall be sentenced to imprisonment for a term of from six months to five years.” Article 331(1) “Whoever degrades another person by subjecting them to violent abuse, ill ‑ treatment or particularly offensive behaviour in public shall be sentenced to imprisonment for a term of from three months to three years.” 33. On 1 January 2013 a new Criminal Code (Official Gazette no. 125/2011, with further amendments; hereinafter “the 2013 Criminal Code”) came into force. Under Article 87(21) it enumerates hatred based on sexual orientation as one of the types of hate crime and provides that the hate crime element of an offence shall be taken as an aggravating circumstance in the sentencing. In addition, violence motivated by hatred is prescribed as an aggravating factor to the offences involving violence (in particular, Article 117 – bodily injury; Article 118 – grave bodily injury; Article 119 – particularly grave bodily injury). Code of Criminal Procedure 34. The relevant provisions of the Code of Criminal Procedure ( Zakon o kaznenom postupku, Official Gazette no. 110/1997, with further amendments), as applicable at the relevant time, provided the following: Article 2 “(1) Criminal proceedings shall only be instituted and conducted upon the order of a qualified prosecutor. ... (2) In respect of criminal offences subject to public prosecution the qualified prosecutor shall be the State Attorney and in respect of criminal offences that may be prosecuted privately the qualified prosecutor shall be a private prosecutor. (3) Unless otherwise provided by law, the State Attorney shall undertake a criminal prosecution where there is a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution and where there are no legal impediments to the prosecution of that person. (4) Where the State Attorney finds that there are no grounds to institute or conduct criminal proceedings, the injured party may take his place as a subsidiary prosecutor under the conditions prescribed by this Act.” Article 11 “Nobody can be tried twice for an offence for which he or she has been tried and in respect of which a final court decision has been adopted.” Article 171(1) “All state bodies and legal entities are obliged to report any criminal offence subject to official prosecution about which they have been informed or about which they have otherwise learned.” Article 173 “(1) Criminal complaints shall be submitted to the competent State Attorney in writing or orally. ... (3) If a criminal complaint was submitted before a court, the police or a State Attorney who was not competent in the matter, they shall forward the criminal complaint to the competent State Attorney.” Article 174 “(1) The State Attorney shall reject a criminal complaint by a reasoned decision if the offence in question is not an offence subject to automatic prosecution, if the prosecution is time-barred or an amnesty or pardon has been granted, or other circumstances excluding criminal liability or prosecution exist, or there is no reasonable suspicion that the suspect has committed the offence. The State Attorney shall inform the victim about his decision ... within eight days (Article 55) and if the criminal complaint was submitted by the police, he shall also inform the police. (2) If the State Attorney is not able to ascertain the reliability of the submissions from the criminal complaint, or if he does not have sufficient information to ask for a judicial investigation, or if he has been otherwise informed that an offence has been committed, and particularly if the perpetrator is unknown, the State Attorney shall, if he is not able to do it himself, ask the police to collect all relevant information and to take other measures concerning the offence (Articles 177 and 179). ...” Article 201 “(1) The investigation shall be discontinued by a decision of a three-judge panel of the County Court (Article 20 § 2) whenever it decides about an issue: ... 3) if ... there are other circumstances excluding the possibility of criminal prosecution. ...” Article 437 “(1) The judge [conducting criminal proceedings] shall reject the indictment ... if he or she finds that there is one of the reasons for the discontinuation of the proceedings under Article 201 § 1 (1)-(3) of this Code ...” Minor Offences 35. The Minor Offences Act ( Prekršajni zakon, Official Gazette no. 107/2007, with further amendments), as applicable at the relevant time, defined minor offences as acts which breach public order, social discipline or other social values and are not considered as criminal offences under the relevant domestic law (Section 1). The same Act regulated the procedure to be followed when trying cases concerning minor offences. In this respect, for matters not regulated by that Act, it envisaged that the Code of Criminal Procedure would accordingly apply (Section 82(3)). In particular, it provided that in the minor offences proceedings the competent prosecutor was the relevant administrative body and in some instances the victim could act as the prosecutor (Section 109). In any event, the victim had the right to participate in the proceedings (Section 116). According to Section 214(1)(4), there was a possibility to reopen the minor offences proceedings in favour of the convicted person if he or she was more times convicted of the same offence. 36. The relevant part of the Minor Offences against Public Order and Peace Act ( Zakon o prekršajima protiv javnog reda i mira, Official Gazette no. 5/1990, with further amendments) provided that whoever in a public place fights, argues, yells or otherwise breaches public order and peace, would be liable to a fine or to a term of imprisonment not exceeding sixty days (Section 13). Prevention of discrimination 37. The relevant provisions of the Prevention of Discrimination Act ( Zakon o suzbijanju diskriminacije, Official Gazette no. 85/2008) and the relevant practice under that Act are set out in Guberina v. Croatia, no. 23682/13, §§ 27 and 29-31, ECHR 2016. Relevant domestic practice and other materialsRelevant practice and materials concerning homophobic violence Relevant practice and materials concerning homophobic violence Relevant practice and materials concerning homophobic violence 38. In September 2008 the Government adopted the “National Programme for Combating Discrimination in the period between 2008 and 2013” ( Nacionalni plan za borbu protiv diskriminacije 2008.-2013. ), where it observed difficulties and inadequate capacities of the law enforcement personnel in recognising the indications of discrimination. It thus coordinated a training programme for police officers on the matter and stressed the need for more effective identification and prosecution of crime related to discrimination. 39. In March/April 2011 the Government adopted the “Hate Crime Protocol” ( Protokol o postupanju u slučaju zločina iz mržnje ) which developed measures of recording and processing hate crime cases. In particular, the prosecution service was required to monitor offences which could be considered as hate crime and the police were required to record the outcome at all stages of the procedure from initial investigation to final judgment. 40. In December 2011 two non-governmental organisations in Croatia, “Lesbian group Kontra” and “Iskorak – Centre for the rights of sexual and gender minorities”, issued a publication on the conduct of the domestic authorities in cases of hate crimes against LGBT (lesbian, gay, bisexual, and/or transgender) persons in Croatia. The document identified violent offences as the most common form of crime and criticised the existing practice of the police to prosecute the perpetrator of the crime, but also sometimes the victim, for the minor offence of breach of public peace and order instead of lodging a criminal complaint against the perpetrator. 41. Further, in December 2011 four non-governmental organisations (“Domino-Queer Zagreb”, “Zagreb Pride”, “Centre for Peace Studies” and “Lesbian organisation LORI”), with the support of the European Union and the Ministry of Economy, Labour and Entrepreneurship, published a “Manual for the Suppression of Discrimination and Violence against LGBT Persons”. They observed that the 1997 Criminal Code as amended provided for the obligation of the criminal justice authorities to elucidate the circumstances of a homophobic hate crime and that in practice the domestic criminal courts generally considered a hate crime element as an aggravating circumstance. However, the provision of Article 89(36) of the 1997 Criminal Code essentially mandated rather for a declaratory than practical protection. This called for further clarifications as to the role of the hate crime element in definition of the offences and determination of penalty, which was done with the 2013 Criminal Code (see paragraph 33 above). 42. The Manual further observed the impact of the Court’s judgment in the case of Maresti v. Croatia (no. 55759/07, 25 June 2009) on the practice of the domestic authorities concerning the prosecution of hate crime. It noted that the Court’s judgment in question excluded the possibility of successive minor offences and criminal proceedings concerning the same facts. However, the practice of the police was to institute minor offences proceedings and to lodge a criminal complaint which, on the basis of the Maresti case-law, ordinarily resulted in the discontinuation of the subsequent criminal proceedings due to a previous minor offences conviction. This was particularly problematic in the case of hate crime since the minor offences proceedings could not address the hate crime element and the perpetrators would usually get away with very lenient sentences without ever being punished for hate crime. Although in 2010 the criminal justice authorities undertook measures to coordinate their actions to avoid such occurrences (see paragraphs 45-46 below), there was still a high level of divergence in practice and inadequate prosecutions of hate crime. 43. In November 2013 the non-governmental organisation “Zagreb Pride”, in cooperation with the non-governmental organisations “Lesbian organisation LORI” and “Domino and Queer Sport Split”, and with the support of the European Union and the Government, published a report on the status of human rights of LGBT persons in Croatia in the period between 2010 and 2013. The report observed that in a number of cases of hate crime against LGBT persons the police instituted minor offences proceedings instead of lodging criminal complaints. This had resulted in very lenient sentences for the perpetrators, which did not reassure a sense of protection to LGBT persons or provide the required deterrent effect. A number of educational activities for police officers had been organised and the report noted a certain progress in the police approach to the matter, in particular in the Zagreb area, whereas in some other parts of Croatia the inadequate response of the police still remained a recurrent problem. Furthermore, the report stressed that the legislative framework was strengthened in particular by the 2013 Criminal Code and the adoption of the Hate Crime Protocol. The Constitutional Court’s case-law 44. The Constitutional Court’s case-law concerning the victims’ procedural complaints under Articles 2 and 3 of the Convention are outlined in Kušić and Others v. Croatia (dec.), no. 71667/17, §§ 41-56, 10 December 2019). Other relevant domestic practice 45. In April 2010 the State Attorney’s Office of the Republic of Croatia and the Police Directorate of the Ministry of the Interior issued instructions to the prosecuting authorities (the police and the State Attorneys) on the processing of cases involving minor and criminal offences in light of the ne bis in idem principle. 46. As regards the criminal offences concerning bodily injuries and minor offences against the public peace and order, the police were required to institute at the same time the minor offences proceedings and to lodge a criminal complaint with the relevant State Attorney’s Office by clearly differentiating the factual scope of the respective charges. Where it was not possible to differentiate the factual scope of the charges, the police were required to consult the State Attorney’s Office and to lodge only a criminal complaint. INTERNATIONAL law and practiceUnited Nations United Nations United Nations 47. The General Assembly Joint statement on human rights, sexual orientation and gender identity (A/63/635, 18 December 2008), in its relevant parts, provides as follows: “4 - We are deeply concerned by violations of human rights and fundamental freedoms based on sexual orientation or gender identity; 5 - We are also disturbed that violence, harassment, discrimination, exclusion, stigmatisation and prejudice are directed against persons in all countries in the world because of sexual orientation or gender identity, and that these practices undermine the integrity and dignity of those subjected to these abuses; 6 - We condemn the human rights violations based on sexual orientation or gender identity wherever they occur, in particular the use of the death penalty on this ground, extrajudicial, summary or arbitrary executions, the practice of torture and other cruel, inhuman and degrading treatment or punishment, arbitrary arrest or detention and deprivation of economic, social and cultural rights, including the right to health; ...” 48. In its Report on discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity (A/HRC/19/41, 17 November 2011), the United Nations High Commissioner for Human Rights stressed the following: “84. The High Commissioner recommends that Member States: (a) Investigate promptly all reported killings and other serious incidents of violence perpetrated against individuals because of their actual or perceived sexual orientation or gender identity, whether carried out in public or in private by State or non-State actors, and hold perpetrators accountable, and establish systems for the recording and reporting of such incidents; (b) Take measures to prevent torture and other forms of cruel, inhuman or degrading treatment on grounds of sexual orientation and gender identity, to investigate thoroughly all reported incidents of torture and ill-treatment, and to prosecute and hold accountable those responsible; ...” 49. In the follow up report (A/HRC/29/23, 4 May 2015) the Commissioner for Human Rights stressed as follows: “78. The High Commissioner recommends that States address violence by: (a) Enacting hate crime laws that establish homophobia and transphobia as aggravating factors for purposes of sentencing; (b) Conducting prompt, thorough investigations of incidents of hate-motivated violence against and torture of LGBT persons, holding perpetrators to account, and providing redress to victims; ... (e) Training law enforcement personnel and judges in gender-sensitive approaches to addressing violations related to sexual orientation and gender identity; ...” 50. On 29 September 2015, 12 United Nations bodies (ILO, OHCHR, UNAIDS Secretariat, UNDP, UNESCO, UNFPA, UNHCR, UNICEF, UNODC, UN Women, WFP and WHO) issued a Joint statement calling for an end to violence and discrimination against the LGBTI people. In the relevant part concerning the protection of individuals from violence, the statement reads as follows: “States should protect LGBTI persons from violence, torture and ill-treatment, including by: • Investigating, prosecuting and providing remedy for acts of violence, torture and ill-treatment against LGBTI adults, ... • Strengthening efforts to prevent, monitor and report such violence; • Incorporating homophobia and transphobia as aggravating factors in laws against hate crime and hate speech; ...” Council of Europe 51. The relevant parts of the Appendix to Recommendation CM/Rec(2010)5 of the Committee of Ministers to member states on measures to combat discrimination on grounds of sexual orientation or gender identity of 31 March 2010, provides as follows: “1. Member states should ensure effective, prompt and impartial investigations into alleged cases of crimes and other incidents, where the sexual orientation or gender identity of the victim is reasonably suspected to have constituted a motive for the perpetrator; they should further ensure that particular attention is paid to the investigation of such crimes and incidents when allegedly committed by law enforcement officials or by other persons acting in an official capacity, and that those responsible for such acts are effectively brought to justice and, where appropriate, punished in order to avoid impunity. 2. Member states should ensure that when determining sanctions, a bias motive related to sexual orientation or gender identity may be taken into account as an aggravating circumstance. ...” 52. The Explanatory Memorandum of the Steering Committee for Human Rights (CDDH) on Recommendation CM/Rec(2010)5, in its relevant part, provides: “1 - 2. Hate crimes are crimes committed on grounds of the victim’s actual or assumed membership of a certain group, most commonly defined by race, religion, sexual orientation, gender identity, nationality, ethnicity, disability etc. For the purpose of this recommendation, the term “ hate-motivated incident” is used to encompass any incident or act – whether defined by national legislation as criminal or not – against people or property that involves a target selected because of its real or perceived connection or membership of a group. The term is broad enough to cover a range of manifestations of intolerance from low-level incidents motivated by bias to criminal acts. “Hate crimes” and other “hate motivated incidents” are very upsetting for the victims and the community to which they belong, and it is all the more striking that, from the victim’s point of view, what matters most is having suffered such a crime because of an immutable fundamental aspect of their identity. But they also threaten the very basis of democratic societies and the rule of law, in that they constitute an attack on the fundamental principle of equality in dignity and rights of all human beings, as inscribed in Article 1 of the Universal Declaration of Human Rights of the United Nations. Lesbian, gay, bisexual and transgender persons are the target of many such crimes or incidents. According to the OSCE/ODIHR report “ Hate Crimes in the OSCE Region: Incidents and Responses”, homophobic crimes or incidents are often characterised by a high degree of cruelty and brutality, often involving severe beatings, torture, mutilation, castration or even sexual assault, and may result in death. They may also take the form of damage to property, insults or verbal attacks, threats or intimidation. It is understood that the most appropriate measures and procedures to deal with a hate crime or a hate motivated incident will depend on the applicable national regulations and on the circumstances of the case, i.e. whether it concerns a violation of national criminal, civil or administrative law or other regulations (disciplinary procedures etc.). Terms such as “investigation” and “sanctions” should therefore be read, in this respect, in a broad sense, having regard to the circumstances of the case. Legislative measures to combat these crimes are vital. By condemning discriminatory motives, they send out a signal to offenders that a just and humane society will not tolerate such behaviour. By recognising the harm done to the victims, they give these people and their community the assurance of being protected by the criminal justice system. In addition, the existence of such laws renders hate crimes or other hate-motivated incidents more visible and makes it easier to gather statistical data, which in turn is of importance for the designing of measures to prevent and counteract them. In legislation, hate crimes will generally be punished by a more severe penalty, as the offence is committed with a discriminatory motive. A failure to take into account such biased motives for a crime may also amount to indirect discrimination under the ECHR. Member states should ensure that when determining sanctions a bias motive related to sexual orientation or gender identity may be taken into account as an aggravating circumstance. They should furthermore ensure that such motives are recorded when a court decides to hand down a more severe sentence. At least 14 Council of Europe member states have already included sexual orientation as an aggravating circumstance in the committing of an offence in their legislation.” 53. The relevant parts of Parliamentary Assembly Resolution 1728 (2010) on Discrimination on the basis of sexual orientation and gender identity of 29 April 2010 provide: “3. ... [L]esbian, gay, bisexual and transgender (LGBT) people, as well as human rights defenders working for the rights of LGBT people, face deeply rooted prejudices, hostility and widespread discrimination all over Europe. The lack of knowledge and understanding about sexual orientation and gender identity is a challenge to be addressed in most Council of Europe member states since it results in an extensive range of human rights violations, affecting the lives of millions of people. Major concerns include physical and verbal violence (hate crimes and hate speech), ... 16. Consequently, the Assembly calls on member states to address these issues and in particular to: ... 16.2. provide legal remedies to victims and put an end to impunity for those who violate the fundamental rights of LGBT people, in particular their right to life and security; ...” 54. The Guidelines of the Committee of Ministers of the Council of Europe on eradicating impunity for serious human rights violations of 30 March 2011 in the relevant part provide the following: “1. These guidelines address the problem of impunity in respect of serious human rights violations. Impunity arises where those responsible for acts that amount to serious human rights violations are not brought to account. ... 3. For the purposes of these guidelines, “serious human rights violations” concern those acts in respect of which states have an obligation under the Convention, and in the light of the Court’s case law, to enact criminal law provisions. Such obligations arise in the context of ... the prohibition of torture and inhuman or degrading treatment or punishment (Article 3 of the Convention) ... Not all violations of these articles will necessarily reach this threshold. ... 1. In order to avoid loopholes or legal gaps contributing to impunity: - States should take all necessary measures to comply with their obligations under the Convention to adopt criminal law provisions to effectively punish serious human rights violations through adequate penalties. These provisions should be applied by the appropriate executive and judicial authorities in a coherent and non-discriminatory manner. ... While respecting the independence of the courts, when serious human rights violations have been proven, the imposition of a suitable penalty should follow. The sentences which are handed out should be effective, proportionate and appropriate to the offence committed.” 55. In its relevant part Parliamentary Assembly Resolution 1948 (2013) on tackling discrimination on the grounds of sexual orientation and gender identity of 27 June 2013 reads as follows: “2. ... the Assembly regrets that prejudice, hostility and discrimination on the grounds of sexual orientation and gender identity remain a serious problem, affecting the lives of tens of millions of Europeans. They manifest themselves in hate speech, bullying and violence, often affecting young people. ...” 56. In the 2011 Report titled “Discrimination on grounds of sexual orientation and gender identity in Europe”, the Commissioner for Human Rights observed that violence motivated by sexual orientation was a growing, but often not recognised and frequently ignored, problem in the Council of Europe member States. The Commissioner also observed that the majority of member States of the Council of Europe have no explicit legal basis which recognises sexual orientation and gender identity in hate crime legislation. European Union law and materials 57. The relevant provisions of the Charter of Fundamental Rights of the European Union (2000/C 364/01) read as follows: Article 3(1) Right to the integrity of the person “Everyone has the right to respect for his or her physical and mental integrity.” Article 4 Prohibition of torture and inhuman or degrading treatment or punishment “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 20 Equality before the law “Everyone is equal before the law.” Article 21(1) Non-discrimination “Any discrimination based on any ground such as ... sexual orientation shall be prohibited.” 58. In 2012 the European Union Agency for Fundamental Rights (hereinafter: the “FRA”) published a report on the visibility of hate crime in the European Union entitled “Making hate crime visible in the European Union: acknowledging victims’ rights”, in which it concluded that making hate crime visible and acknowledging the rights of victims required action at three levels: legislation, policy and practice. In particular, the report pointed out that at the level of legislation, this concerned recognising hate crime, the bias motivations underlying it and its effect on victims in both national legislation and European law. At the policy level, this meant implementing policies that would lead to collecting reliable data on hate crime that would record, at a minimum, the number of incidents of hate crime reported by the public and recorded by the authorities; the number of convictions of offenders; the grounds on which these offences were found to be discriminatory; and the punishments served to offenders. At the practical level, this included putting mechanisms in place to encourage victims and witnesses to report incidents of hate crime as well as mechanisms that would show that authorities were taking hate crime seriously. 59. In the period between April and July 2012 the FRA conducted a survey in the European Union (including Croatia which was not a Member State at the time) on discrimination and victimisation of LGBT persons (see European Union lesbian, gay, bisexual and transgender survey: Main results, Luxembourg, Publications Office of the European Union 2014). The survey indicated, inter alia, that 89% of respondents from Croatia avoided holding hands in public with a same-sex partner for fear of being assaulted, threatened or harassed because of being LGBT; and 62% of them for the same reason avoided certain locations. The proportion of the respondents who felt discriminated against or harassed on the grounds of sexual orientation in the preceding year was 60%. THE LAW ALLEGED VIOLATION OF ARTICLES 3, 8 AND 14 OF THE CONVENTION 60. The applicant complained of a lack of an appropriate response of the domestic authorities to the act of violence against her, motivated by her sexual orientation. She relied on Articles 3, 8 and 14 of the Convention, which, in so far as relevant, read as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 8 “Everyone has the right to respect for his private ... life ...” Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” AdmissibilityApplicability of Article 3 of the Convention Applicability of Article 3 of the Convention Applicability of Article 3 of the Convention (a) The parties’ arguments 61. The Government contended that the physical attack against the applicant did not reach the minimum level of severity attracting the applicability of Article 3 of the Convention. In particular, the Government submitted that the applicant had been attacked after a verbal altercation between her and M.M. in circumstances in which both of them had been under the influence of alcohol. The injuries she had sustained were qualified as minor bodily injuries by the competent medical experts. The Government also argued that several times before the domestic authorities the applicant had stated that she could not remember all the details of the attack and she had only thought that her sexual orientation had been the motive for the attack. 62. The applicant submitted that there was no doubt that M.M.’s physical attack against her had been motivated by her sexual orientation. It followed from the fact that M.M. had shouted discriminatory remarks while beating her up, which several witnesses had heard. The applicant stressed that she had clearly raised that issue before the competent domestic authorities and explained in detail the circumstances of the attack. The applicant also pointed out that she had been severely beaten up by M.M., who had hit and kicked her all over her head and body while she was lying on the ground. In the applicant’s view, the qualification of the injuries at the domestic level was not relevant since the overall circumstances of the attack had made her feel humiliated and debased, which she could never forget. (b) The Court’s assessment 63. In general, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see M.C. and A.C. v. Romania, no. 12060/12, § 107, 12 April 2016). Further factors include the purpose for which the ill ‑ treatment was inflicted, together with the intention or motivation behind it. Regard must also be had to the context in which the ill-treatment was inflicted (see Bouyid v. Belgium [GC], no. 23380/09, § 86, ECHR 2015, and cases cited therein). 64. Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these aspects, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition set forth in Article 3. It should also be pointed out that it may well suffice that the victim is humiliated in his own eyes, even if not in the eyes of others (see, in the context of private violence, M.C. and A.C., cited above, § 108; see also in general Bouyid, cited above, § 87). 65. A discriminatory treatment as such can in principle amount to degrading treatment within the meaning of Article 3, where it attains a level of severity such as to constitute an affront to human dignity (see Cyprus v. Turkey [GC], no. 25781/94, §§ 305-311, ECHR 2001 ‑ IV; Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 121, ECHR 1999 ‑ VI; Moldovan and Others v. Romania (no. 2), nos. 41138/98 and 64320/01, §§ 111 and 113, ECHR 2005 ‑ VII (extracts); and Begheluri v. Georgia, no. 28490/02, § 101, 7 October 2014). Discriminatory remarks and racist insults must in any event be considered as an aggravating factor when considering a given instance of ill-treatment in the light of Article 3 (see B.S. v. Spain, no. 47159/08, § 40, 24 July 2012; Abdu v. Bulgaria, no. 26827/08, § 23, 11 March 2014; and Identoba and Others v. Georgia, no. 73235/12, § 65, 12 May 2015). 66. This is particularly true for violent hate crime. In this connection it should be remembered that not only acts based solely on a victim’s characteristics can be classified as hate crimes. For the Court, perpetrators may have mixed motives, being influenced by situational factors equally or stronger than by their biased attitude towards the group the victim belongs to (see Balázs v. Hungary, no. 15529/12, §§ 56-57 and 70, 20 October 2015). 67. The Court notes in the case at issue that according to the version of the events established by the police following their intervention at the scene on 13 January 2010, the applicant had been attacked by M.M. at the street in front of a nightclub after she had disclosed to him her sexual orientation. The police established that M.M. had first grabbed the applicant with both his hands and pushed her against a wall and then started hitting her all over her body and, when she fell to the ground, he continued kicking her (see paragraph 7 above). The attack only ceased after one of the applicant’s friends had used her gas pistol to frighten off the attacker (see paragraphs 5, 12 and 16 above). 68. As a result of the attack the applicant sustained multiple physical injuries, including contusion on the head, a haematoma on the forehead, abrasions of the face, forehead and area around the lips, neck strain, contusion on the chest and abrasions of both palms and knees (see paragraph 10 above). These particular circumstances of the attack were later confirmed in the minor offences proceedings (see paragraphs 12 and 14 above) and they formed the essence of the applicant’s criminal complaint and the ensuing criminal investigation (see paragraphs 16 and 20 above). 69. Furthermore, the Court notes that there is sufficient evidence before it to conclude that the attack against the applicant was influenced by her sexual orientation. This follows from the above-noted findings of the police, the applicant’s detailed account of the events in her criminal complaint lodged with the State Attorney’s Office (see paragraph 16 above), the applicant’s and her friends’ police interviews (see paragraphs 18-19 above), and the findings of the criminal investigation conducted by an investigating judge of the County Court (see paragraph 23 above). 70. In light of the foregoing, the Court concludes that the treatment, convincingly described by the applicant, to which she was subjected and which was directed at her identity and undermined her integrity and dignity, must necessarily have aroused in her feelings of fear, anguish and insecurity reaching the requisite threshold of severity to fall under Article 3 of the Convention (compare Identoba and Others, cited above, § 71; M.C. and A.C., cited above, § 119; and Balázs, cited above, § 57; compare also, as regards the injuries themselves, Beganović v. Croatia, no. 46423/06, § 66, 25 June 2009; Milanović v. Serbia, no. 44614/07, § 87, 14 December 2010; and Mityaginy v. Russia, no. 20325/06, § 49, 4 December 2012). 71. The Court therefore rejects the Government’s objection and finds Article 3 of the Convention applicable to the applicant’s complaints. Exhaustion of domestic remedies (a) The parties’ arguments 72. The Government argued that the applicant had failed to lodge a civil action for damages concerning her discrimination complaint, as provided under the Prevention of Discrimination Act. In particular, had she considered that any of the domestic authorities had discriminated against her, she could have sought a ruling establishing such discrimination, ordering the taking of measures aimed at removing discrimination or its consequences, compensation for damages, and publication of the court findings. Whereas the Government accepted that a discrimination complaint could have been used alternatively – namely as a separate action under the Prevention of Discrimination Act or as a legal issue in the proceedings concerning the main matter – they considered that the applicant had never raised the alleged discrimination as a preliminary issue in the proceedings she had been pursuing. Lastly, the Government submitted that the applicant could have lodged disciplinary actions against the police officers who had been in charge of her case if she considered that they had not properly investigated her complaints. 73. The applicant submitted that, in view of the two alternative avenues under the Prevention of Discrimination Act, she had sought protection from discrimination through the criminal proceedings instituted against M.M. Moreover, she considered that a separate civil action for damages could have no bearing on her complaints concerning the failures in the domestic authorities’ procedural response to the physical attack against her motivated by her sexual orientation. The applicant also submitted that disciplinary action against the police officers could not have had any bearing on their duty to effectively investigate the physical attack against her. (b) The Court’s assessment 74. The Court notes that at the heart of the applicant’s complaint is the question of a lack of an appropriate procedural response of the domestic authorities and the alleged impunity for the acts of private violence against her motivated by her sexual orientation. The Court has already held that the possibility of lodging a civil action for damages would not fulfil the State’s procedural obligation under Article 3 in case of discriminatory violence. The same is true for a civil action for protection from discrimination, particularly given that the applicant had already raised her discrimination complaint in the criminal complaint she lodged with the relevant State Attorney’s Office (see Škorjanec v. Croatia, no. 25536/14, § 47, 28 March 2017, with further references; see also paragraphs 16 and 20 above). 75. As regards the Government’s argument that the applicant could have lodged disciplinary actions against the police officers in charge of her case, the Court has already considered this not to be a relevant remedy for complaints relating to the domestic authorities’ procedural obligation under the Convention concerning acts of private violence (see, for example, Remetin v. Croatia, no. 29525/10, § 74, 11 December 2012). 76. Against the above background, the Court rejects the Government’s objection of non-exhaustion of domestic remedies. Compliance with the six-month time-limit (a) The parties’ arguments 77. The Government argued that there was no reason for the applicant to lodge a constitutional complaint with the Constitutional Court since it had been a well-established practice of that court to declare constitutional complaints lodged by subsidiary prosecutors inadmissible. In the Government’s view, the applicant should have lodged an application with the Court directly against the decision of the Zagreb County Court of 9 October 2012 (see paragraph 27 above). The Government therefore considered, citing the case of Modrić v. Croatia ((dec.), no. 21609/06, 4 June 2009), that by lodging a constitutional complaint with the Constitutional Court and awaiting for that court to decide, the applicant had failed to observe the six-month time-limit for lodging her application with the Court. 78. The applicant stressed that it had been necessary for her to lodge a constitutional complaint with the Constitutional Court so as to allow it to rectify the procedural omissions of the lower domestic authorities in processing her case. She therefore considered that she had complied with the six-month time-limit for lodging an application with the Court. (b) The Court’s assessment 79. The Court has already in many cases against Croatia concerning the State’s procedural obligations examined and rejected the same objection of the respondent Government concerning the applicants’ use of the constitutional complaint before the Constitutional Court (see Bajić v. Croatia, no. 41108/10, §§ 68-69, 13 November 2012; Remetin, cited above, §§ 83-84; and Kušić and Others, cited above, §§ 86-87; see also Pavlović and Others v. Croatia, no. 13274/11, §§ 32-38, 2 April 2015). It sees no reason to hold otherwise in the present case. 80. As to the Government’s reliance on the Modrić case, the Court notes that the applicant in that case improperly used the relevant appeals under the Code of Criminal Procedure. The Court thus found that a constitutional complaint lodged only in respect of the decisions declaring the applicant’s appeals inadmissible was not a remedy to be exhausted, and that by lodging such constitutional complaint, the applicant had failed to comply with the six-month time-limit. Nothing of these findings in the Modrić case holds true for the case at issue in which the applicant properly used the remedies provided under the Code of Criminal Procedure and then lodged a constitutional complaint with the Constitutional Court (see paragraphs 27-28 above). 81. In these circumstances, the Court rejects the Government’s objection. Conclusion 82. The Court notes that the applicant’s complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions (a) The applicant 83. The applicant submitted that the response of the domestic authorities to the violent homophobic attack against her had not been adequate. The applicant pointed out that it had clearly followed from the evidence available before the police that the physical attack against her was a hate crime. However, the police had failed to investigate the motive of the attack and had instead instituted minor offences proceedings for breach of public peace and order. The minor offences proceedings had not addressed the discriminatory motive of the attack and had impeded the possibility of pursuing criminal prosecution against the attacker for hate crime and violence related to the discriminatory motive. Specifically, the competent State Attorney’s Office and the competent criminal courts had considered that, due to the minor offences conviction of the attacker, his criminal prosecution had become barred as being res judicata. 84. The applicant further stressed that she had not been informed that the minor offences proceedings had been instituted and thus she had been unable to take any action to protect her rights during those proceedings. In the applicant’s view, the response of the domestic authorities to the violent attack against her had amounted to impunity since the perpetrator of the attack had been leniently punished in the minor offences proceedings and the application of the criminal-law mechanism had been frustrated by his minor offences conviction, preventing his criminal prosecution on the grounds of the ne bis in idem principle. However, the applicant considered that the domestic authorities had misinterpreted the scope of the ne bis in idem principle – and had erroneously applied it as a bar to her attacker’s prosecution. In particular, she contended that the minor offences proceedings had not addressed the hate crime element to the attack and therefore could not be considered “criminal proceedings” within the meaning of the ne bis in idem principle. In any case, the applicant stressed that the minor offences conviction of the attacker undermined the domestic authorities’ respect for her rights and had not created the intended effect of restraining and deterring the offender from causing further harm. (b) The Government 85. The Government submitted that Croatia had taken all necessary measures to implement the mechanisms of protection of LGBT persons in its domestic legal system. In the case at issue, the domestic authorities had conducted a prompt and effective investigation into the applicant’s allegations of ill-treatment during which they had identified and prosecuted the attacker. The Government pointed out that following the attack against the applicant the police had immediately responded at the scene and the applicant had been promptly provided with medical assistance. However, the injuries she had sustained had been qualified as minor bodily injuries and therefore the police had instituted minor offences proceedings against her attacker for the breach of public peace and order. In the Government’s view there had been no reason for the police to lodge a criminal complaint against him since minor bodily injuries were not prosecuted ex officio. The Government also considered that the applicant’s attacker had been duly sanctioned in the minor offences proceedings, particularly given that there had been no clear indications of hate crime. 86. Furthermore, the Government contended that the State Attorney’s Office had adopted a reasoned decision rejecting the applicant’s criminal complaint and this decision had later been upheld by the relevant courts. In the Government’s view, these decisions were in compliance with the Court’s case-law concerning the ne bis in idem principle set out in Sergey Zolotukhin v. Russia ([GC], no. 14939/03, ECHR 2009) and Maresti (cited above), while the case-law in A and B v. Norway ([GC], nos. 24130/11 and 29758/11, 15 November 2016) was still not applicable at the relevant time. In these circumstances, the Government considered that the fact that an otherwise effective criminal investigation had not resulted in further prosecution due to the ne bis in idem principle could not be considered contrary to the procedural obligation under Article 3 of the Convention. (c) The third-party intervention (i) The Zagreb Pride 87. The Zagreb Pride stressed that there was institutionalised and social violence against LGBT persons in Croatia which was principally a result of the authorities’ neglectful approach towards combating homophobia and transphobia. Consequently, LGBT persons were pushed to the margins of social life and faced with growing concerns over the rising number of violent attacks against them. The Zagreb Pride submitted that more than two thirds of LGBT people in Croatia had experienced some form of violence and one third of them had fallen victim to hate crime committed in public places. The prosecutions for such offences were scarce and penalties were ordinarily symbolic. One of the problems identified by the Zagreb Pride was that in a number of cases the authorities had qualified the attack on LGBT persons as a disturbance of public peace and order rather than a hate crime. Moreover, the minor offences proceedings were ordinarily ineffective and inadequate in responding to such occurrences. (ii) The joint intervention by the ILGA-Europe, the AIRE Centre and the ICJ 88. The interveners submitted that an effective implementation of legislation targeting hate crimes operated in two ways. The first and most effective method was the creation of qualifications/enhanced penalties for all or specified crimes committed on the basis of a relevant bias. The alternative method was the approach of making a racist/xenophobic motivation an aggravating factor. The interveners further argued that sexual orientation or gender identity or expression should be treated in the same way as categories such as race, ethnicity and religion that are commonly covered by hate crime laws, because sexual orientation or gender identity or expression is a characteristic that is fundamental to a person’s sense of self and is used as a marker of group identity. 89. The interveners considered that the Court should emphasise the extent of member States’ obligations to put in place effective, robust procedures to deter, detect, investigate, prosecute and punish hate crimes perpetrated wholly or partly because of the victim’s real or imputed sexual orientation and/or gender identity. In the interveners’ view, in cases involving crimes motivated by sexual orientation and/or gender identity, an effective prosecution mandated a criminal charge and a criminal prosecution. Moreover, the penalty imposed should be commensurate with the gravity of the offence. The Court’s assessment (a) Scope of the case 90. The Court finds that the domestic authorities’ obligations related to the incident at issue may arise under all Articles of the Convention relied upon by the applicant. However, in view of the injuries which the applicant sustained and the hate motivated violence against her (see paragraph 70 above), the Court considers that the applicant’s complaint should be examined under Article 3 (compare Abdu v. Bulgaria, no. 26827/08, § 39, 11 March 2014, and Škorjanec, cited above, § 36). 91. Further, the authorities’ duty to investigate the existence of a possible link between a discriminatory motive and an act of violence can fall under the procedural aspect of Article 3 of the Convention, but may also be seen to form part of the authorities’ positive responsibilities under Article 14 to secure the fundamental values enshrined in Article 3 without discrimination. Owing to the interplay of Articles 3 and 14 of the Convention in the context of violence motivated by discrimination, issues such as those raised by the present case may fall to be examined under Article 3 alone, with no separate issue arising under Article 14, or may require examination of Article 3 in conjunction with Article 14. This is a question to be decided in each case depending on the facts and the nature of the allegations made (see, for example, B.S. v. Spain, no. 47159/08, § 59, 24 July 2012, and Škorjanec, cited above, § 37). 92. In the present case, in view of the applicant’s allegations that the violence against her had homophobic overtones which were not properly addressed by the authorities, the Court finds that the most appropriate way to proceed would be to subject the applicant’s complaints to a simultaneous examination under Article 3 taken in conjunction with Article 14 (compare Abdu, cited above, § 46; Identoba and Others, cited above, § 64; and Škorjanec, cited above, § 38). (b) General principles 93. The established principles of the Court’s case-law on Articles 3 and 14 of the Convention concerning the State’s procedural obligation when confronted with cases of violent incidents triggered by suspected discriminatory attitudes, including those relating to the victim’s actual or perceived sexual orientation or other protected characteristics, are set out in Identoba and Others, cited above, §§ 66-67; M.C. and A.C., cited above, §§ 108-115; and Škorjanec, cited above, §§ 52-57. 94. In particular, when investigating violent incidents, such as ill ‑ treatment, State authorities have the duty to take all reasonable steps to unmask possible discriminatory motives, which the Court concedes is a difficult task. The respondent State’s obligation to investigate possible discriminatory motives for a violent act is an obligation to use best endeavours, and is not absolute. The authorities must do whatever is reasonable in the circumstances to collect and secure the evidence, explore all practical means of discovering the truth and deliver fully reasoned, impartial and objective decisions, without omitting suspicious facts that may be indicative of violence induced by, for instance, racial or religious intolerance, violence motivated by gender-based discrimination or sexual orientation. Treating violence and brutality with a discriminatory intent on an equal footing with cases that have no such overtones would be turning a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention (see Identoba and Others, cited above, § 67, and M.C. and A.C., cited above, § 113, with further references). 95. Accordingly, where there is a suspicion that discriminatory attitudes induced a violent act, it is particularly important that the official investigation is pursued with vigour and impartiality, having regard to the need to reassert continuously society’s condemnation of such acts and to maintain the confidence of minority groups in the ability of the authorities to protect them from the discriminatory motivated violence. Compliance with the State’s positive obligations requires that the domestic legal system must demonstrate its capacity to enforce criminal law against the perpetrators of such violent acts (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005 ‑ VII; Koky and Others v. Slovakia, no. 13624/03, § 239, 12 June 2012; and Amadayev v. Russia, no. 18114/06, § 81, 3 July 2014). Without a strict approach from the law ‑ enforcement authorities, prejudice-motivated crimes would unavoidably be treated on an equal footing with ordinary cases without such overtones, and the resultant indifference would be tantamount to official acquiescence to or even connivance with hate crimes (see Identoba and Others, cited above, § 77, with further references). 96. The Court has also recently in the case of S.M. v. Croatia ([GC], no. 60561/14, §§ 311-320, 25 June 2020) summarised its case-law on the procedural obligation under the converging principles of Articles 2, 3 and 4 of the Convention. It noted, in particular, that whereas the general scope of the State’s positive obligations might differ between cases where the treatment contrary to the Convention has been inflicted through the involvement of State agents and cases where violence is inflicted by private individuals, the procedural requirements are similar. These procedural requirements primarily concern the authorities’ duty to institute and conduct an investigation capable of leading to the establishment of the facts and of identifying and – if appropriate – punishing those responsible. 97. Moreover, when the official investigation has led to the institution of proceedings in the national courts, the proceedings as a whole, including the trial stage, must satisfy the requirements of Article 3 of the Convention (see M.C. and A.C., cited above, § 112). While there is no absolute obligation for all prosecutions to result in conviction or in a particular sentence, the national courts should not under any circumstances be prepared to allow grave attacks on physical and mental integrity to go unpunished, or for serious offences to be punished by excessively light punishments. The important point for the Court to review, therefore, is whether and to what extent the courts, in reaching their conclusion, might be deemed to have submitted the case to the careful scrutiny, so that the deterrent effect of the judicial system in place and the significance of the role it was required to play in preventing violations of the prohibition of ill-treatment are not undermined (see Beganović, cited above, § 77, citing Ali and Ayşe Duran v. Turkey, no. 42942/02, §§ 61-62, 8 April 2008; see also Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 285, 30 March 2016). 98. In so far as relevant for the present case, the Court has so far found violations of the States procedural obligation in the following circumstances : (i) In case of a failure of the domestic authorities to take all reasonable steps to effectively ascertain whether or not a discriminatory attitude might have played a role in the events (see, for instance, Šečić v. Croatia, no. 40116/02, §§ 68-69, 31 May 2007; Cobzaru v. Romania, no. 48254/99, § 96, 26 July 2007; Milanović, cited above, § 100; Koky and Others v. Slovakia, no. 13624/03, § 239, 12 June 2012; B.S. v. Spain, cited above, § 61; Makhashevy v. Russia, no. 20546/07, § 146, 31 July 2012; Virabyan v. Armenia, no. 40094/05, § 224, 2 October 2012; Abdu, cited above, § 35; Begheluri, cited above, § 177; Identoba and Others, cited above, § 80; M.C. and A.C., cited above, § 125; and Lakatošová and Lakatoš v. Slovakia, no. 655/16, § 96, 11 December 2018); (ii) Where the criminal proceedings are discontinued on formal grounds, without having the facts of the case established by a competent criminal court, owing to the flaws in the actions of the relevant State authorities (see, for instance, Turan Cakir v. Belgium, no. 44256/06, § 80, 10 March 2009; Beganović, cited above, § 85; Muta v. Ukraine, no. 37246/06, § 63, 31 July 2012; M.N. v. Bulgaria, no. 3832/06, § 46, 27 November 2012; Remetin, cited above, § 99; Valiulienė, cited above, § 85; Dimitar Shopov v. Bulgaria, no. 17253/07, § 52, 16 April 2013; Aleksandr Nikonenko v. Ukraine, no. 54755/08, § 45, 14 November 2013; Ceachir v. the Republic of Moldova, no. 50115/06, § 54, 10 December 2013; and İbrahim Demirtaş v. Turkey, no. 25018/10, §§ 34-35, 28 October 2014); (iii) In cases of manifest disproportion between the gravity of the act and the results obtained at domestic level, fostering sense that acts of ill ‑ treatment remained ignored by the relevant authorities and that there was a lack of effective protection against acts of ill-treatment (see Beganović, cited above, §§ 78-79; and Identoba and Others, cited above, § 75; see further, for instance, Atalay v. Turkey, no. 1249/03, § 44, 18 September 2008; Kopylov v. Russia, no. 3933/04, § 141, 29 July 2010; Darraj v. France, no. 34588/07, §§ 48-49, 4 November 2010; Derman v. Turkey, no. 21789/02, § 28, 31 May 2011; Zontul v. Greece, no. 12294/07, §§ 106-109, 17 January 2012; and Myumyun v. Bulgaria, no. 67258/13, § 75, 3 November 2015). 99. With respect to the ne bis in idem principle, Article 4 § 2 of Protocol No. 7 sets a limit on the application of the principle of legal certainty in criminal matters expressly permitting Contracting States to reopen a case where, inter alia, a fundamental defect is detected in the proceedings. Under the heading of “fundamental defect” the proceedings may be reopened to the detriment of the accused where he or she has been acquitted of an offence or punished for an offence less serious than that provided for by the applicable law if there is a serious violation of a procedural rule severely undermining the integrity of the proceedings. The grounds justifying the reopening of proceedings must be such as to affect the outcome of the case (see Mihalache v. Romania [GC], no. 54012/10, §§ 129 and 133, 8 July 2019; compare Taşdemir v. Turkey (dec.), no. 52538/09, 12 March 2019, where there may be de jure obstacles to reopening the investigation). 100. Thus, for instance, the proceedings may be reopened on the grounds that the lower-level court had not followed the relevant instructions given by the higher court as regards the investigative measures to be carried out. However, a mere reassessment of the facts in the light of the applicable law does not constitute a “fundamental defect” in the previous proceedings (Ibid, §§ 133 and 137). Furthermore, for grave breaches of fundamental human rights, an issue under the ne bis in idem principle, which purportedly results out of the erroneous termination of the proceedings, cannot even arise (see Marguš v. Croatia [GC], no. 4455/10, §§ 124-141, ECHR 2014 (extracts)). 101. In this connection the Court reiterates that it must be possible for the national authorities to remedy alleged violations of Article 4 of Protocol No. 7 at the domestic level. Otherwise the concept of subsidiarity would lose much of its usefulness. Thus, in cases where the domestic authorities institute two sets of proceedings but later acknowledge a violation of the ne bis in idem principle and offer appropriate redress by way, for instance, of terminating or annulling the unwarranted set of proceedings and effacing its effects, the Court may regard the situation as being remedied (see Sergey Zolotukhin, cited above, §§ 114-115). (c) Application of these principles to the present case 102. At the outset, the Court notes that at the relevant time the domestic legal system provided for the criminal law mechanisms protecting individuals from hate motivated violence (compare Abdu, cited above, § 47). The 1997 Criminal Code expressly provided for the definition of hate crime, including crime motivated by the victim’s sexual orientation (Article 89 (36) of the 1997 Criminal Code, see paragraph 32 above). Although it appears that there was a lack of clarity with regard to the nature of the requirement under that provision, the material available to the Court suggests that it provided for an obligation of the criminal justice authorities to elucidate the circumstances of a homophobic hate crime. Moreover, the domestic courts generally considered a hate crime element as an aggravating factor for the offences involving violence (see paragraph 41 above). 103. However, the Court need not examine the domestic legal framework further since the applicant did not complain specifically in that respect. Her complaint is rather of a procedural nature relating to a lack of an appropriate response of the domestic authorities to the violent hate crime against her. The Court will thus limit its assessment to this procedural aspect of the State’s obligations under the Convention concerning hate crime (compare S.M. v. Croatia, cited above, § 333). 104. The Court observes that following the physical attack against the applicant in the nightclub on 13 January 2010 the police immediately responded at the scene. Their initial findings showed that the applicant had sustained multiple physical injuries as a result of a violent attack by a man whose outburst of anger against the applicant had taken place after she had disclosed her sexual orientation to him (see paragraphs 7 above). These initial findings of the police were never put into doubt during the proceedings at the domestic level. Indeed, after the submission of the applicant’s criminal complaint providing details of the violent attack against her allegedly motivated by her sexual orientation, the State Attorney’s Office noted that in her statement to the investigating judge she had provided a detailed and comprehensive account of the events (see paragraphs 16 and 23 above), which was also confirmed by several witnesses interviewed by the police (see paragraph 19 above). 105. In these circumstances, the Court finds that already at the initial stages of the proceedings, immediately after the physical attack against the applicant had taken place, the domestic authorities were confronted with prima facie indications of violence motivated or at least influenced by the applicant’s sexual orientation (compare Šečić, cited above, § 69; Milanović, cited above, § 99; Abdu, cited above, § 35; and Begheluri, cited above, § 176). According to the Court’s case-law, this mandated for an effective application of domestic criminal-law mechanisms capable of elucidating the possible hate motive with homophobic overtones behind the violent incident and of identifying and, if appropriate, adequately punishing those responsible (see paragraphs 94-95 above; see also S.M. v. Croatia, cited above, § 324). 106. In this connection, the Court notes that according to the domestic procedures, the police were required to lodge a criminal complaint with the State Attorney’s Office, which was competent to conduct further official investigations into the indications of violent hate crime against the applicant even in cases of only minor bodily injuries (see paragraphs 32 and 46 above). The Court further notes that the relevant Criminal Code prescribed that attempted grave bodily injury and violent behaviour as well as acts of discriminatory breach of human rights required an ex officio investigation and prosecution even without a hate crime element (see paragraph 32 above). Although it is not for the Court to classify the circumstances of the attack against the applicant under the relevant provisions of domestic criminal law, it observes that on the basis of these provisions the State Attorney’s Office instituted an official investigation before an investigating judge of the County Court (see paragraphs 16 and 20 above). There is therefore no doubt that even in terms of the domestic law the police were under a duty to report the matter to the State Attorney’s Office, which, however, they failed to do. 107. Instead of lodging a criminal complaint before the State Attorney’s Office concerning the hate motivated violent attack against the applicant or conducting any further actions to elucidate the possible hate crime element of the events, as required by the relevant instructions (see paragraph 46 above), the police instituted minor offences proceedings in the Minor Offences Court indicting M.M. on charges of breach of public peace and order. These proceedings ended with M.M.’s conviction for the minor offence and his punishment by a fine of approximately EUR 40 without addressing or taking into account the hate motive at all. As there was no appeal by M.M. or the police, and since the applicant was not informed of the proceedings, M.M.’s minor offences conviction became final (see paragraphs 13-15 above). 108. Although it goes without saying that it is not for the Court to address such issues of domestic law concerning individual responsibility, that being a matter for assessment by the national courts, or to deliver guilty or not guilty verdicts in that regard, the Court observes that the minor offences proceedings did not in any manner address the hate crime element to the physical attack against the applicant nor was M.M. indicted or convicted of any charges related to violence motivated by discrimination (see Angelova and Iliev v. Bulgaria, no. 55523/00, § 116, 26 July 2007; B.S. v. Spain, cited above, § 61; and Virabyan, cited above, § 224; compare also Öneryıldız v. Turkey [GC], no. 48939/99, § 116, ECHR 2004 ‑ XII). 109. Moreover, the Court notes that in the minor offences proceedings M.M. was sentenced to a derisory fine of approximately EUR 40. While the Court acknowledges the role of the national courts to determine the appropriate sentence for an offender, its task is to ensure that a State’s obligation to protect the rights of those under its jurisdiction is adequately discharged, which means that it must retain its supervisory function and intervene in cases of manifest disproportion between the gravity of the act and the punishment imposed (see Gäfgen v. Germany [GC], no. 22978/05, § 123, ECHR 2010; see also, for instance, Zontul, cited above, §§ 106-109, and further references in paragraph 98(iii) above). 110. The Court cannot therefore overlook the fact that M.M.’s sentence in the minor offences proceedings was manifestly disproportionate to the gravity of the ill-treatment suffered by the applicant (compare Identoba and Others, cited above, § 75). Indeed, this conclusion is confirmed by comparing the prescribed sanctions for the offences as subsequently classified by the State Attorney’s Office – which were publishable by imprisonment (see paragraphs 16, 20 and 32 above) – and the nature of the sanction actually imposed on M.M. in the minor offences proceedings. That said, the Court would reiterate that it is concerned with the respondent State’s responsibility under the Convention and that this finding does not call into question M.M.’s individual criminal responsibility under the domestic criminal law, that being a matter for assessment by the national courts (see Beganović, cited above, § 78). 111. In overall, the Court finds that such a response of the domestic authorities through the minor offences proceedings was not capable of demonstrating the State’s Convention commitment to ensuring that homophobic ill-treatment does not remain ignored by the relevant authorities and to providing effective protection against acts of ill-treatment motivated by the applicant’s sexual orientation. The sole recourse to the minor offences proceedings against M.M. could be considered rather as a response that fosters a sense of impunity for the acts of violent hate crime, than as a procedural mechanism showing that such acts could in no way be tolerated (compare Milanović, cited above, § 100; and also Kopylov, cited above, § 141; Darraj, cited above, §§ 48-49; Zontul, cited above, §§ 106-109; and Pulfer v. Albania, no. 31959/13, § 88 in fine, 20 November 2018). 112. However, as explained in the Government’s submissions, the State Attorney’s Office and the criminal courts found, on the basis of their interpretation of the Sergey Zolotukhin and Maresti case-law (both cited above) that M.M.’s final conviction in the minor offences proceedings for a breach of public peace and order created a formal impediment to his criminal prosecution for the violent hate crime on the grounds of the ne bis in idem principle (see paragraphs 23 and 26-27 above). The Government accordingly suggested in their submissions, that given that it was necessary to secure compliance with the ne bis in idem principle, the domestic authorities had a justified reason for not implementing the effective criminal-law mechanisms (that is to say, criminal law stricto sensu ) in the present case (see paragraph 86 above). 113. In this connection the Court emphasises that, as demonstrated above, the domestic authorities themselves brought about the situation in which they, by unnecessarily instituting the ineffective minor offences proceedings, undermined the possibility to put properly into practice the relevant provisions and requirements of the domestic criminal law (compare Turan Cakir, cited above, § 80; Dimitar Shopov, cited above, § 52; and M.C. and A.C., cited above, § 123) 114. In the Court’s view, both failure to investigate hate motives behind a violent attack and failure to take into consideration such motives in determining the punishment for violent hate crimes, amounted to “fundamental defects” in the proceedings under Article 4 § 2 of Protocol No. 7. In the present case the domestic authorities failed to remedy the impugned situation, although it could not be said that there were de jure obstacles to do so (see paragraph 99 above). In particular, they failed to offer the defendant the appropriate redress, for instance, by terminating or annulling the unwarranted set of proceedings and effacing its effects, and to re-examine the case. The domestic authorities therefore failed to fulfil their duty to combat impunity of hate crimes in compliance with the Convention standards (see Sergey Zolotukhin, cited above, §§ 114-115; see paragraphs 99-101 above). 115. In sum, in view of the above considerations, the Court finds that by instituting the ineffective minor offences proceedings and as a result erroneously discontinuing the criminal proceedings on formal grounds the domestic authorities failed to discharge adequately and effectively their procedural obligation under the Convention concerning the violent attack against the applicant motivated by her sexual orientation. Such conduct of the authorities is contrary to their duty to combat impunity for hate crimes which are particularly destructive of fundamental human rights (see paragraph 95 above). 116. There has therefore been a violation of Article 3 under its procedural aspect in conjunction with Article 14 of the Convention. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 117. The applicant complained about the lack of an effective domestic remedy. She relied on Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 118. Having regard to the grounds on which it has found a violation of Article 3 under its procedural aspect in conjunction with Article 14 of the Convention (see paragraph 115 above), the Court considers that, while this complaint is admissible, no separate issue arises under Article 13 of the Convention (see Šečić, cited above, § 61; see also Kušić and Others, cited above, § 108). APPLICATION OF ARTICLE 41 OF THE CONVENTION 119. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 120. The applicant claimed EUR 10,000 in respect of non-pecuniary damage. 121. The Government considered the applicant’s claim excessive, unfounded and unsubstantiated. 122. Having regard to all the circumstances of the present case, the Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant the sum claimed in respect of non-pecuniary damage, plus any tax that may be chargeable to her. Costs and expenses 123. The applicant also claimed EUR 5,719.17 for the costs and expenses incurred before the domestic courts and for those incurred before the Court. 124. The Government considered this claim unfounded and unsubstantiated. 125. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 5,200 covering costs under all heads plus any tax that may be chargeable to the applicant. Default interest 126. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) in conjunction with Article 14 (prohibition of discrimination) of the Convention. It found in particular that the minor-offence proceedings against the applicant’s aggressor had not addressed the hate-crime element of the offence and had resulted in a derisory fine. Those shortcomings had amounted to a fundamental defect in the proceedings. It would therefore have been justified for the authorities to terminate or annul the minor-offence proceedings and to re-examine the case, instead of them rejecting the applicant’s criminal complaint on grounds of double jeopardy. |
593 | Access to work | II. relevant domestic law A. Appointment to a chartered accountant's post 14. Until 30 April 1993 only members of the Greek Institute of Chartered Accountants could provide chartered accountants' services in Greece. 15. Article 10 of Legislative Decree no. 3329/1955, as amended by Article 5 of Presidential Decree no. 15/1989, provided that a person who did not qualify for appointment to the civil service could not be appointed a chartered accountant. 16. According to Article 22 § 1 of the Civil Servants' Code, no person convicted of a serious crime can be appointed to the civil service. 17. On 30 April 1993 the monopoly of the Institute of Chartered Accountants was abolished. Most chartered accountants became members of the Chartered Auditors' Company Ltd. B. The criminal offence of insubordination 18. Article 70 of the Military Criminal Code in force until 1995 provided: “A member of the armed forces who, having been ordered by his commander to perform a duty, refuses or fails to execute the order shall be punished – (a) if the act is committed in front of the enemy or armed insurgents, with death; (b) in times of war or armed insurgency or during a state of siege or general mobilisation, with death or, if there are extenuating circumstances, with life imprisonment or imprisonment of at least five years and (c) in all other circumstances, with imprisonment between six months and two years.” 19. By virtue of Presidential Decree no. 506/1974, at the time of the applicant's arrest Greece was deemed to be in a state of general mobilisation. This decree is still in force. 20. Article 84 § 2 (a) of the Criminal Code provides that a lesser penalty shall be imposed on persons who, prior to the crime, had led an honest life. 21. Under Article 1 of the Military Criminal Code in force until 1995, offences punishable with a sentence of at least five years' imprisonment were considered to be serious crimes ( kakuryimata ). Offences punishable with a sentence of up to five years' imprisonment were considered misdemeanours ( plimmelimata ). 22. Under the new Military Criminal Code of 1995 insubordination not committed in time of war or in front of the enemy is considered a misdemeanour. C. The right to conscientious objection to military service 23. Under section 2(4) of Law no. 731/1977, those who refused to perform unarmed military service on the basis of their religious beliefs were sentenced to imprisonment of a duration equivalent to that of the unarmed service, that is, less than five years. 24. Law no. 2510/1997, which entered into force on 27 June 1997, gives conscientious objectors the right to perform civilian, instead of military, service. Under section 23(1) and (4) of this law, persons who had been convicted of insubordination in the past were given the possibility of applying for recognition as conscientious objectors. One of the effects of such recognition was having the conviction expunged from one's criminal record. 25. Applications under section 23(1) and (4) of Law no. 2510/1997 had to be lodged within a period of three months starting from 1 January 1998. They were examined by the commission that advises the Minister of National Defence on the recognition of conscientious objectors. The commission had to apply section 18 of Law no. 2510/1997, which provides: “Persons who invoke their religious or ideological beliefs in order not to fulfil their military obligations for reasons of conscience may be recognised as conscientious objectors ...” THE LAW I. SCOPE OF THE CASE 26. In his original application to the Commission the applicant had complained under Articles 9 and 14 of the Convention about the failure of the authorities to appoint him to a post of chartered accountant and under Article 6 § 1 about the proceedings he had instituted in this connection. Only in his observations in reply to the Government's observations on the admissibility and merits of the application did the applicant also complain of a violation of Article 1 of Protocol No. 1. The Commission declared the latter complaint inadmissible on the ground that it had not been submitted within the six-month time-limit provided by the Convention. 27. In his memorial before the Court the applicant contended that the Court was competent to examine his complaint under Article 1 of Protocol No. 1. Although this complaint had not been expressly raised in the application form, the facts underlying it had been set out therein. The Convention organs were free to give them the proper legal qualification. 28. The Court recalls that the scope of its jurisdiction is determined by the Commission's decision declaring the originating application admissible (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 40, ECHR 1999-IV). Moreover, it considers, as the Commission did, that the complaint under Article 1 of Protocol No. 1 was separate from the complaints declared admissible. It follows that the Court has no jurisdiction to entertain this complaint. II. The Government's Preliminary OBJeCtion 29. The Government argued that the applicant, by using the procedure provided by section 23(1) and (4) of Law no. 2510/1997, could have avoided the consequences of his conviction. They also submitted that he could have applied for a pardon under Article 47 § 1 of the Constitution. However, the Government accepted that, even if the applicant had been recognised as a conscientious objector under Law no. 2510/1997, he would not have been able to obtain reparation for the prejudice he had suffered as a result of his conviction. 30. The applicant claimed that he had not been aware of the three-month time-limit in section 23(1) and (4) of Law no. 2510/1997 and had missed the deadline. In any event, the above provisions were “obscure” and only few conscientious objectors had succeeded in having their past convictions expunged from their criminal records. 31. The Court notes that, even if the applicant had not missed the deadline in section 23(1) and (4) of Law no. 2510/1997, his claim that he could not serve in the armed forces because of his religious beliefs would have been examined by a commission, which would have advised the Minister of National Defence on whether or not he should be recognised as a conscientious objector. This commission and the Minister would not have been obliged to grant the applicant's claim since they, at least to a certain degree, retained discretionary powers (see paragraphs 24 and 25 above). Moreover, it was accepted by the parties that, even if the applicant had obtained the removal of his conviction from his criminal record pursuant to section 23(1) and (4) of Law no. 2510/1997, he would not have been able to obtain reparation for the prejudice he had suffered until then as a result of his conviction. For the same reason the applicant could not have been certain that his request for a pardon would have been granted and, even if it had, the applicant could not have obtained reparation. 32. In any event, the Court notes that, in so far as the Government can be deemed to raise a preliminary objection concerning the applicant's status as a victim within the meaning of Article 34 of the Convention, this objection had not been put forward when the admissibility of the application was being considered by the Commission. There was nothing preventing the Government from raising it at that stage of the proceedings, since Law no. 2510/1997 had been enacted prior to the Commission's admissibility decision. The Court therefore holds that the Government is estopped from raising this preliminary objection and dismisses it (see Nikolova v. Bulgaria [GC], no. 31195/96, § 44, ECHR 1999-II). III. ALLEGED VIOLATION oF ARTICLE 14 of the convention taken IN CONJUNCTION WITH ARTICLE 9 33. The Court notes that the applicant did not complain about his initial conviction for insubordination. The applicant complained that the law excluding persons convicted of a serious crime from appointment to a chartered accountant's post did not distinguish between persons convicted as a result of their religious beliefs and persons convicted on other grounds. The applicant invoked Article 14 of the Convention taken in conjunction with Article 9, which provide: Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article 9 “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” A. Arguments before the Court 34. The applicant submitted that his non-appointment to a post of chartered accountant was directly linked to the manifestation of his religious beliefs and fell within the ambit of Article 9 of the Convention. He pointed out in this connection that he had not been appointed because he had refused to serve in the armed forces; by refusing to do so, he had manifested his religious beliefs as a Jehovah's Witness. The applicant further argued that it could not serve any useful purpose to exclude someone from the profession of chartered accountants for having refused to serve in the armed forces on religious grounds. In the applicant's view, the law should not have excluded every person convicted of a serious crime. The legitimacy of the exclusion depended on the nature of the post and of the offence, including the motives of the offender, the time elapsed since the offence and the offender's conduct during that time. Seen in this light, the authorities' failure to appoint the applicant was not necessary. The class of persons to which the applicant belonged, namely male Jehovah's Witnesses whose religion involved compelling reasons for refusing to serve in the armed forces, was different from the class of most other criminal offenders. The Government's failure to take account of this difference amounted to discrimination not tolerated by Article 14 of the Convention taken in conjunction with Article 9. 35. The Government argued that Article 14 of the Convention did not apply because the facts of the case did not fall within the ambit of Article 9. The authorities that refused to appoint the applicant a chartered accountant had no option but to apply a rule that excluded all persons convicted of a serious crime from such a post. The authorities could not inquire into the reasons that had led to a person's conviction. Because of its generality, the law in question was neutral. Moreover, it served the public interest. A person convicted of a serious offence could not be appointed to the civil service and, by extension, to a post of chartered accountant. This prohibition had to be absolute and no distinction could be made on a case-by-case basis. States had a wide margin of appreciation in the characterisation of criminal offences as serious crimes or otherwise. The applicant had committed a serious offence by refusing to perform unarmed military service at a time of general mobilisation because he had tried to avoid a very important obligation towards society and the State, linked with the defence, safety and independence of the country. As a result, the sanction was not disproportionate. 36. The Government also stressed that the Court had no competence to examine the applicant's initial conviction. In any event, this had nothing to do with his religious beliefs. The obligation to do military service applied to all Greek males without any exceptions on grounds of religion or conscience. Moreover, the applicant had been convicted of insubordination. Discipline in the army could not be made to depend on whether a soldier agreed with the orders given to him. 37. In the light of all the above, the Government argued that, even if Article 14 applied, there would exist an objective and reasonable justification for the failure to distinguish between the applicant and other persons convicted of a serious crime. There was no need to point out that Greek Orthodox or Catholic Christians would also be excluded from the profession of chartered accountants if they had committed a serious crime. 38. The Commission considered that Article 14 applied because it was sufficient that the facts of the case fell within the ambit of Article 9, and, in its opinion, there had been an interference with the rights protected by that Article in the present case. The Commission further considered that the right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention was violated not only when States treated differently persons in analogous situations without providing an objective and reasonable justification, but also when States, without an objective and reasonable justification, failed to treat differently persons whose situations were different. In the circumstances of the case, there was no objective and reasonable justification for the failure of the drafters of the rules governing access to the profession of chartered accountants to treat differently persons convicted for refusing to serve in the armed forces on religious grounds from persons convicted of other serious crimes. B. The Court's assessment 39. The Court considers that the applicant's complaint falls to be examined under Article 14 of the Convention taken in conjunction with Article 9 for the following reasons. 40. The Court recalls that Article 14 of the Convention has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols. However, the application of Article 14 does not presuppose a breach of one or more of such provisions and to this extent it is autonomous. For Article 14 to become applicable it suffices that the facts of a case fall within the ambit of another substantive provision of the Convention or its Protocols (see the Inze v. Austria judgment of 28 October 1987, Series A no. 126, p. 17, § 36). 41. The Court notes that the applicant was not appointed a chartered accountant as a result of his past conviction for insubordination consisting in his refusal to wear the military uniform. He was thus treated differently from the other persons who had applied for that post on the ground of his status as a convicted person. The Court considers that such difference of treatment does not generally come within the scope of Article 14 in so far as it relates to access to a particular profession, the right to freedom of profession not being guaranteed by the Convention. 42. However, the applicant does not complain of the distinction that the rules governing access to the profession make between convicted persons and others. His complaint rather concerns the fact that in the application of the relevant law no distinction is made between persons convicted of offences committed exclusively because of their religious beliefs and persons convicted of other offences. In this context the Court notes that the applicant is a member of the Jehovah's Witnesses, a religious group committed to pacifism, and that there is nothing in the file to disprove the applicant's claim that he refused to wear the military uniform only because he considered that his religion prevented him from doing so. In essence, the applicant's argument amounts to saying that he is discriminated against in the exercise of his freedom of religion, as guaranteed by Article 9 of the Convention, in that he was treated like any other person convicted of a serious crime although his own conviction resulted from the very exercise of this freedom. Seen in this perspective, the Court accepts that the “set of facts” complained of by the applicant – his being treated as a person convicted of a serious crime for the purposes of an appointment to a chartered accountant's post despite the fact that the offence for which he had been convicted was prompted by his religious beliefs – “falls within the ambit of a Convention provision”, namely Article 9. 43. In order to reach this conclusion, the Court, as opposed to the Commission, does not find it necessary to examine whether the applicant's initial conviction and the authorities' subsequent refusal to appoint him amounted to interference with his rights under Article 9 § 1. In particular, the Court does not have to address, in the present case, the question whether, notwithstanding the wording of Article 4 § 3 (b), the imposition of such sanctions on conscientious objectors to compulsory military service may in itself infringe the right to freedom of thought, conscience and religion guaranteed by Article 9 § 1. 44. The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification (see the Inze judgment cited above, p. 18, § 41). However, the Court considers that this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different. 45. It follows that Article 14 of the Convention is of relevance to the applicant's complaint and applies in the circumstances of this case in conjunction with Article 9 thereof. 46. The next question to be addressed is whether Article 14 of the Convention has been complied with. According to its case-law, the Court will have to examine whether the failure to treat the applicant differently from other persons convicted of a serious crime pursued a legitimate aim. If it did the Court will have to examine whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see the Inze judgment cited above, ibid.). 47. The Court considers that, as a matter of principle, States have a legitimate interest to exclude some offenders from the profession of chartered accountant. However, the Court also considers that, unlike other convictions for serious criminal offences, a conviction for refusing on religious or philosophical grounds to wear the military uniform cannot imply any dishonesty or moral turpitude likely to undermine the offender's ability to exercise this profession. Excluding the applicant on the ground that he was an unfit person was not, therefore, justified. The Court takes note of the Government's argument that persons who refuse to serve their country must be appropriately punished. However, it also notes that the applicant did serve a prison sentence for his refusal to wear the military uniform. In these circumstances, the Court considers that imposing a further sanction on the applicant was disproportionate. It follows that the applicant's exclusion from the profession of chartered accountants did not pursue a legitimate aim. As a result, the Court finds that there existed no objective and reasonable justification for not treating the applicant differently from other persons convicted of a serious crime. 48. It is true that the authorities had no option under the law but to refuse to appoint the applicant a chartered accountant. However, contrary to what the Government's representative appeared to argue at the hearing, this cannot absolve the respondent State from responsibility under the Convention. The Court has never excluded that legislation may be found to be in direct breach of the Convention (see, inter alia, Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, ECHR 1999-III). In the present case the Court considers that it was the State having enacted the relevant legislation which violated the applicant's right not to be discriminated against in the enjoyment of his right under Article 9 of the Convention. That State did so by failing to introduce appropriate exceptions to the rule barring persons convicted of a serious crime from the profession of chartered accountants. 49. The Court concludes, therefore, that there has been a violation of Article 14 of the Convention taken in conjunction with Article 9. IV. ALLEGED VIOLATION oF ARTICLE 9 OF THE CONVENTION 50. The applicant argued that both his initial conviction for insubordination and the authorities' resultant refusal to appoint him as a chartered accountant constituted interference with his right to manifest his religious beliefs under Article 9 of the Convention. The Commission's case ‑ law to the effect that the Convention did not guarantee the right to conscientious objection to military service had to be reviewed in the light of present-day conditions. Virtually all Contracting States now recognised the right to alternative civilian service. Although the Court was admittedly not competent to examine the interference arising out of the applicant's initial conviction, the applicant submitted that the interference arising out of his non-appointment could not be deemed necessary in a democratic society. 51. The Government argued that the authorities' refusal to appoint the applicant did not constitute an interference with his right under Article 9 of the Convention. In any event, it was necessary in a democratic society. At the time when the applicant refused to serve in the armed forces, Greek law only recognised the possibility of unarmed military service because it was considered that giving everybody the right to alternative civilian service could give rise to abuses. As a result, the sanction imposed on him was not disproportionate and the rule excluding persons convicted of a serious crime from certain positions had to be applied without any distinctions. 52. The Commission did not consider it necessary to address the issue. 53. The Court considers that, since it has found a breach of Article 14 of the Convention taken in conjunction with Article 9 and for the reasons set out in paragraph 43 above, it is not necessary also to consider whether there has been a violation of Article 9 taken on its own. V. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 54. The applicant also complained that the length of the proceedings he instituted before the Supreme Administrative Court to challenge his non ‑ appointment gave rise to a violation of Article 6 § 1 of the Convention, the relevant part of which provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 55. The applicant submitted that Article 6 § 1 of the Convention applied to the Supreme Administrative Court proceedings under examination because they did not concern access to the civil service but to a liberal, albeit tightly regulated, profession. Moreover, he argued that the proceedings were not concluded within a reasonable time. The case did not involve complex legal issues. The issues that were referred to the plenary of the Supreme Administrative Court were not raised by the applicant but by the Supreme Administrative Court 's Chamber itself. In any event, they could not justify a delay of more than seven years. 56. The Government submitted that Article 6 § 1 was not applicable because the refusal to appoint the applicant was an administrative act falling within the sphere of public law. In any event, the case raised serious constitutional issues. Moreover, lawyers were on strike during many months in 1991, 1992, 1993 and 1994. In the light of all the above and the Supreme Administrative Court 's case-load, seven years was a reasonable period. 57. The Commission considered that Article 6 applied because, although chartered accountants were appointed by administrative decision, their occupation was an independent profession. It also considered that complex legal issues were involved. However, the applicant was not responsible for any of the delays. Moreover, there were two periods of inactivity of a total duration of almost three years for which the Government did not offer any explanation apart from the Supreme Administrative Court 's case-load. In the view of the Commission, the proceedings were not reasonable in length. 58. The Court recalls that, although regulated by administrative law, the profession of chartered accountants was one of the liberal professions in Greece. As a result, the proceedings instituted by the applicant to challenge the authorities' failure to appoint him to a post of chartered accountant involved a determination of his civil rights within the meaning of Article 6 § 1 of the Convention (see, among others, the König v. Germany judgment of 28 June 1978, Series A no. 27, p. 32, § 94). 59. The Court notes that the proceedings before the Supreme Administrative Court began on 8 May 1989, when the applicant lodged his application for judicial review, and ended on 28 June 1996, when the Third Chamber of the court rejected it. They lasted, therefore, seven years, one month and twenty days. 60. The Court recalls that the reasonableness of the length of the proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the parties, the conduct of the authorities dealing with the case and what was at stake for the applicant (see Laino v. Italy [GC], no. 33158/96, § 18, ECHR 1999-I). Employment disputes, to which disputes concerning access to a liberal profession can be compared, call generally for expeditious decision (see the Vocaturo v. Italy judgment of 24 May 1991, Series A no. 206 ‑ C, pp. 32-33, § 17). 61. The Court notes that the case involved legal issues of some complexity. However, the applicant did not cause any delays. And there were two periods of inactivity of a total duration of almost three years. The first such period started on 8 May 1989, when the applicant instituted the proceedings, and ended on 18 April 1991, when the Third Chamber first heard the case. The second started on 11 November 1994, when the plenary court referred the case back to the Third Chamber, and ended on 26 October 1995, when the Third Chamber issued the final decision. The only explanation offered by the Government for these periods of inactivity is the Supreme Administrative Court 's case-load. 62. The Court cannot accept this explanation. According to its case-law, it is for Contracting States to organise their legal systems in such a way that their courts can guarantee the right of everyone to obtain a final decision on disputes relating to civil rights and obligations within a reasonable time (see the Vocaturo judgment cited above, ibid.). In the light of all the above and given that the proceedings concerned the applicant's professional future, the Court considers that the length of the proceedings failed to meet the “reasonable time” requirement. 63. The Court concludes, therefore, that there has been a violation of Article 6 § 1 of the Convention. vi. APPLICATION OF aRTICLE 41 OF THE CONVENTION 64. Under Article 41 of the Convention, “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damage 65. The applicant claimed 84,140,000 drachmas (GRD) for pecuniary damage, including approximately GRD 17,000,000 in respect of salaries lost between the authorities' refusal to appoint him and the abolition of the monopoly of the Institute of Chartered Accountants. In support of his claim, the applicant invoked “a survey conducted by the Institute of Chartered Accountants and a private chartered accountants' firm”. 66. The Government submitted that freedom of religion had nothing to do with the above damage. In any event, they pointed out that during the entire period under examination the applicant worked in the private sector and that his claims were not supported by any official documents. 67. The Court notes that, the Government's general remarks about the link between freedom of religion and pecuniary damages notwithstanding, it was not disputed that, if the authorities had not refused to appoint the applicant to a chartered accountant's post, he would have received an income related to this professional activity at least until the abolition of the monopoly of the Institute of Chartered Accountants. However, the Court also notes that the applicant was not unemployed during that period of time. Moreover, the applicant has not shown that the income he would have earned as a chartered accountant would have exceeded the income he had actually earned in private practice during the relevant period of time. The Court, therefore, does not award the applicant any compensation for pecuniary damage. B. Non-pecuniary damage 68. The applicant claimed GRD 15,000,000 for non-pecuniary damage. 69. The Government argued that no causal link was established between the violation of the Convention and the above sum. In any event, the claim was excessive. 70. The Court considers that the applicant must have suffered some non-pecuniary damage as a result of the violation of his right under Article 6 § 1 of the Convention to a hearing within a reasonable time and of his right under Article 14 taken in conjunction with Article 9 to be free from discrimination in the exercise of his freedom of religion. The duration of the proceedings must have caused the applicant prolonged insecurity and anxiety about his eligibility to a professional activity to which he aspired. Moreover, the violation of Article 14 of the Convention taken in conjunction with Article 9 occurred in the making of decisions concerning the applicant's access to a profession, which is a central element for the shaping of one's life plans. Making its assessment on an equitable basis, the Court awards the applicant GRD 6,000,000 for non-pecuniary damage. C. Costs and expenses 71. The applicant claimed GRD 6,250,000 in respect of costs and expenses incurred in the domestic and Convention proceedings. This amount included GRD 250,000 in lawyers' fees for the applicant's representation before the administrative authorities, GRD 1,700,000 in lawyers' fees for the proceedings before the Supreme Administrative Court, GRD 500,000 in lawyers' fees for the proceedings before the Commission, GRD 2,000,000 in lawyers' fees for the proceedings before the Court, GRD 1,300,000 for travel and subsistence expenses in connection with the appearance of the applicant and his lawyer at the hearing before the Court and GRD 500,000 for miscellaneous expenses. 72. The Government argued that the claim should be awarded only to the extent that the costs and expenses were actually and necessarily incurred and were reasonable as to quantum. 73. The Court agrees with the Government as to the test to be applied in order for costs and expenses to be included in an award under Article 41 of the Convention (see, among other authorities, Nikolova cited above, § 79). Moreover, it considers that the applicant's claim is excessive. The Court therefore awards the applicant GRD 3,000,000 under this head. D. Default interest 74. According to the information available to the Court, the statutory rate of interest applicable in Greece at the date of adoption of the present judgment is 6% per annum. | The Court held that there had been a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 9 (freedom of thought, conscience and religion) of the Convention. States had a legitimate interest to exclude some offenders from the profession of a chartered accountant. However, unlike other convictions for serious criminal offences, a conviction for refusing on religious or philosophical grounds to wear the military uniform could not imply any dishonesty or moral turpitude likely to undermine the offender’s ability to exercise this profession. Excluding the applicant on the ground that he was an unfit person was not, therefore, justified. The applicant had served a prison sentence for his refusal to wear the military uniform. Imposing a further sanction on him was disproportionate. It followed that his exclusion from the profession of chartered accountants did not pursue a legitimate aim. There existed no objective and reasonable justification for not treating the applicant differently from other persons convicted of a felony. The State, in order to ensure respect for Article 14 taken in conjunction with Article 9, should have introduced appropriate exceptions to the rule barring persons convicted of a felony from the profession of chartered accountants. |
587 | Expulsion or extradition cases | II. RELEVANT DOMESTIC LAW AND PRACTICE A. SIAC’s procedures 67. As stated in A. and Others v. the United Kingdom, cited above, § 91, SIAC was set up in response to this Court’s judgment in Chahal, cited above. 68. Under section 2(1) of the Special Immigration Appeals Commission Act 1997, appeal to SIAC lies in respect of immigration decisions, including decisions to deport, when the Secretary of State’s decision is taken wholly or partly on grounds of national security or wholly or partly in reliance on information which in the Secretary of State’s opinion should not be made public in the interests of national security, the interests of the relationship between the United Kingdom and any other country, or otherwise in the public interest. 69. As was also stated in A. and Others, § 92, SIAC has a special procedure which enables it to consider not only material which can be made public (“open material”) but also other material which cannot (“closed material”). Neither the appellant nor his legal advisor can see the closed material. Accordingly, one or more security-cleared counsel, referred to as “special advocates”, are appointed by the Solicitor General to act on behalf of the appellant. Rule 4 of Special Immigration Appeals Commission (Procedure) Rules 2003 (“the 2003 Rules”) governs the use of closed material and states: “(1) When exercising its functions, the Commission shall secure that information is not disclosed contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest. (2) Where these Rules require information not to be disclosed contrary to the public interest, that requirement is to be interpreted in accordance with paragraph (1). (3) Subject to paragraphs (1) and (2), the Commission must satisfy itself that the material available to it enables it properly to determine proceedings.” Rule 37(3)(c) directs that when serving closed material upon the special advocate, the Secretary of State must also serve a statement of the material in a form which can be served on the appellant, if and to the extent that it is possible to do so without disclosing information contrary to the public interest. 70. Rule 38 provides that a special advocate may challenge the Secretary of State’s objections to disclosure of the closed material. SIAC may uphold or overrule the Secretary of State’s objection. If it overrules the objection, it may direct the Secretary of State to serve on the appellant all or part of the closed material which he has filed with the SIAC but not served on the appellant. In that event, the Secretary of State shall not be required to serve the material if he chooses not to rely upon it in the proceedings. 71. A search is carried out for “exculpatory material”, that is, material that will advance the case of an appellant or detract from the case of the Secretary of State. Exculpatory material is disclosed to the appellant save where this would not be in the public interest. In that event it is disclosed to the special advocate. 72. Section 7 of the 1997 Act confers a right of appeal to the Court of Appeal against a final determination of an appeal made by SIAC in England and Wales “on any question of law material to that determination”. B. SIAC’s case law on assurances 73. In addition to Jordan, the Government have negotiated memoranda of understanding on assurances with Ethiopia, Lebanon and Libya. They have negotiated a framework agreement for obtaining assurances from Algeria. SIAC has heard appeals from seventeen individuals whom the Government sought to deport on the basis of these assurances. SIAC has considered these appeals on a case-by-case basis but the general approach it has taken to assurances was set out in BB. v. the Secretary of State for the Home Department, SIAC determination of 5 December 2006, § 5, where it found that, before assurances could remove a real risk of ill-treatment, four conditions had to be satisfied: (i) the terms of the assurances had be such that, if fulfilled, the person returned would not be subjected to treatment contrary to Article 3; (ii) the assurances had been given in good faith; (iii) there had to be a sound objective basis for believing that the assurances would be fulfilled; and (iv) fulfilment of the assurances had to be capable of being verified. 74. Applying that test, SIAC has found assurances to be sufficient for Algeria (see SIAC’s determinations in G (8 February 2007); Z and W (14 May 2007) Y, BB and U (2 November 2007); PP (23 November 2007); B (30 July 2008); T (22 March 2010); Sihali (no. 2) (26 March 2010)). It also found them to be sufficient in respect of Ethiopia in the case of XX (10 September 2010). SIAC found assurances to be insufficient in respect of Libya, given the changeable nature of the then Gaddafi regime ( DD and AS (27 April 2007)). 75. Jordan’s assurances were also found to be compatible with Article 3 in VV (2 November 2007). SIAC took note of further reports on torture in Jordanian prisons and considered that those reports confirmed its view that, without the MOU, there was a real risk of ill-treatment. However, those reports did not alter its conclusions in the present case that the MOU and Adaleh’s monitoring role provided sufficient protection. V. RELEVANT COMPARATIVE AND INTERNATIONAL LAW ON TORTURE AND THE USE OF EVIDENCE OBTAINED BY TORTURE A. The United Nations Torture Convention 1. Relevant provisions of the Convention 125. One hundred and forty-nine States are parties to the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“UNCAT”), including all Member States of the Council of Europe. Article 1 of the Convention defines torture as: “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” 126. Article 1(2) provides that it is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application. Article 2 requires States to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. Article 4 requires each State Party to ensure that all acts of torture are offences under its criminal law. 127. Article 3 provides: “1. No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.” 128. Article 12 provides that 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. 129. Article 15 requires that each State ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made. 2. Case law and reports relating to Article 15 of UNCAT a. The United Nations Committee Against Torture 130. In P.E. v. France (no. 193/2001), decision of 21 November 2002, the Committee considered the case of a German national who had been extradited from France to Spain. The complainant alleged the Spanish extradition request had been based on statements by a third person obtained by torture. While rejecting the complaint as unsubstantiated, the Committee considered that the provisions of Article 15 applied to the extradition proceedings in France and that France had the obligation to ascertain the veracity of the allegations made. The “broad scope” of Article 15 and its applicability to extradition proceedings was confirmed by the Committee in G.K. v. Switzerland (no. 219/2002), decision of 7 May 2003, which also concerned an extradition to Spain where the basis of the extradition request were statements by a third party allegedly obtained by torture. Criminal proceedings initiated by the third party against his alleged torturers were discontinued by the Spanish authorities and the complaint was therefore dismissed by the Committee as unsubstantiated; consequently, there had been no violation of Article 15 by Switzerland in extraditing the complainant. 131. It its concluding observations on Russia of 6 February 2007 (CAT/C/RUS/CO/4), the Committee was concerned that, while the Russian Code of Criminal Procedure stated that evidence obtained by torture was inadmissible, in practice there appeared to be no instruction to the courts to rule that the evidence was inadmissible, or to order an immediate, impartial and effective investigation. The Committee recommended the adoption of clear legal provisions prescribing the measures to be taken by courts should evidence appear to have been obtained through torture or ill-treatment, in order to ensure in practice the absolute respect for the principle of inadmissibility of evidence obtained through torture. Concerns were also expressed by the Committee in its concluding observations on the United States of America (25 July 2006, CAT/C/USA/CO/2), in relation to the application of Article 15 to military commissions and the bodies which would review the cases of those detained at Guantánamo Bay, Cuba. It recommended that the United State establish an independent mechanism to guarantee the rights of all detainees in its custody. In its Report on Mexico (26 May 2003, CAT/C/75) the Committee considered that Article 20 of the Mexican Constitution (which provided that a confession not made before the Public Prosecutor or a judge or made without the presence of defence counsel had no evidential value) was not sufficient in practice to prevent torture. Detainees were afraid to tell the Public Prosecutor they had been tortured; there was insufficient access to legal advice; there the police and Public Prosecutor’s office worked closely together and detainees were shuttled repeatedly between each service for the purposes of interrogation and then forced confessions; prosecutor’s did not conduct investigations into torture allegations and, if they did, still made use of the confession; medical experts were not sufficiently independent from the prosecutor. It was “extraordinarily difficult’ to have forced confessions excluded: courts had no independent means of ascertaining whether confessions were made voluntarily (paragraphs 155, 196-202, 219 and 220 of the Report). b. France 132. Article 15 was relied on by the cour d’appel de Pau in its decision to refuse an extradition request by Spain in Irastorza Dorronsoro, case no. 238/2003, 16 May 2003. It had been accepted by the Spanish authorities that statements by a third party, Ms Sorzabal Diaz, whilst in detention were the only evidence against Mr Irastorza Dorronsoro. The court found there were serious grounds for believing that Ms Sorzabal Diaz had been physically abused during her detention and further inquiries of the Spanish authorities had failed to dispel those concerns. It could not been excluded, therefore, that her statements had been obtained contrary to Article 15 and, as such, the extradition request was refused. c. Germany 133. Article 15 was also relied on by the Düsseldorf Court of Appeal ( Oberlandesgericht ) in its decision of 27 May 2003 refusing extradition of a terrorist suspect to Turkey. The court recognised that Turkey had ratified UNCAT and incorporated its provisions into domestic law. However, there was a real risk ( konkrete Gefahr ) of those provisions not being respected in the event of the requested person’s extradition. On the evidence before it, the court found reasonable evidence ( begründete Anhaltspunkte ) to presume that statements given to the Istanbul police by 32 co-defendants in autumn 1998 – containing full confessions – were made under the influence of acts of torture by the Turkish security forces. The allegations of torture were supported by medical evidence (albeit records that were unclear in places) and matched information available from general reports on methods of torture commonly applied – not always with physically verifiable effects – in police custody in Turkey. There was, moreover, a risk, substantiated by concrete evidence ( durch konkrete Indizien belegte Gefahr ), that the statements taken from the co-accused might be used in proceedings against the requested person in Turkey. The Court of Appeal accepted that, in their judgments, Turkish courts were required to have regard to the domestic and international legal provisions against the admission of torture evidence, as well as case-law of the Turkish Court of Cassation to the effect that uncorroborated confessions were inadmissible. However, human rights reports had repeatedly noted that inadequate investigation by the Turkish criminal justice system of allegations of torture meant that courts continued to use confessions obtained by police ill-treatment. There were grounds to fear that the Istanbul National Security Court would do so in the instant case, not least that it would be impossible to prove the charges against the requested person without relying on the autumn 1998 statements taken by the police. 134. The Düsseldorf Court of Appeal’s judgment was relied upon by the Cologne Administrative Court ( Verwaltungsgericht ) in its judgment of 28 August 2003 in a related extradition case. The Cologne court found that the Court of Appeal’s conclusions were not altered by further assurances given by the Turkish authorities; those assurances were not specific but rather relied only on the general applicable provisions of Turkish law on torture evidence. 135. In re El Motassadeq, before the Hamburg Court of Appeal Criminal Division ( Oberlandesgericht ), the defendant was charged with conspiracy to cause the attacks of 11 September 2011. The court was provided with summaries of statements of three witnesses who had been held and questioned in US custody. Requests as the nature to the United States authorities’ questioning had been met with no response. The court based its assessment as to whether torture had been used on available, publicly accessible sources. The court found that, on the whole, it had not been proved that the witnesses had been tortured, inter alia because the content of the statements was not one-sided. This meant the court decided not to consider Article 15 of UNCAT, which, it observed, would have justified a prohibition on using the evidence (see the summary of the judgment in A and others (no. 2), §§ 60, 122 and 123, 140 and 141). The defendant’s subsequent application to this Court was declared inadmissible as manifestly ill-founded: El Motassadeq v. Germany (dec.) no. 28599/07, 4 May 2010. C. The United Kingdom 1. A and others (no. 2) 136. In A and others (no. 2) v Secretary of State for the Home Department [2005] UKHL 41 the House of Lords considered whether SIAC could lawfully admit evidence which had or may have been obtained by torture in another State without the complicity of British officials. On the basis of the common law, the case-law of this Court, and public international law, including UNCAT, their Lordships concluded that it could not. 137. Their Lordships were divided as to the appropriate test which SIAC should apply in determining whether evidence should be admitted. All of their Lordships agreed that a conventional approach to the burden of proof was not appropriate given the nature of SIAC procedures. An appellant in a SIAC appeal could not be expected to do more than raise a plausible reason that evidence might have been obtained by torture. Where he did so, it was for SIAC to initiate relevant inquiries. The majority (Lords Hope, Rodger, Carswell and Brown) then went on to find that SIAC should adopt the test of admissibility laid down in Article 15 of UNCAT. They held that SIAC should thus consider whether it was established on the balance of probabilities that the evidence was obtained by torture. If so satisfied, SIAC should not admit the evidence but, if it were doubtful, it should admit the evidence, bearing its doubt in mind when evaluating it. By contrast, Lords Bingham, Nicholls and Hoffmann found that a balance of probabilities test could never be satisfied and would undermine the practical efficacy of UNCAT. They proposed a lower test, namely that where SIAC concluded that there was a real risk that the evidence had been obtained by torture, it should not admit the evidence. 2. R v. Mushtaq 138. In England and Wales, section 76(2) of the Police and Criminal Evidence Act 1984 provides: “If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained— (a) by oppression of the person who made it; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.” This test is primarily for the trial judge to determine, if necessary by holding a voire dire. In R v. Mushtaq [2005] 1 WLR 1513, the House of Lords held that the logic of section 76(2) required that, if a confession is admitted, a jury should be directed that if they considered that the confession was, or may have been, obtained by oppression or any other improper conduct they should disregard it. D. Canada 139. In India v. Singh 108 CCC (3d) 274, the British Columbia Supreme Court considered an extradition request where it was alleged that the prima facie case against the fugitive, Singh, was based on five confessions of co ‑ conspirators, which had been obtained by torture. The court held that, for the purpose of determining whether the extradition could proceed because there was a prima facie case, a statement obtained by torture was inadmissible. However, the burden of proving that the statement was so obtained rested upon the fugitive who made that allegation. It was agreed that this allegation had to be proved on a balance of probabilities. The court found the allegation had not been proved to that standard for four of the statements but that it had for a fifth. 140. The approach taken in A and others (no 2) was followed by the Canadian Federal Court in Mahjoub v. Canada (Minister of Citizenship and Immigration). Mahjoub also concerned the issue of deportation with assurances and is summarised at paragraph 153 below. VI. RELEVANT NATIONAL AND INTERNATIONAL CASE-LAW AND COMMENTARY ON ASSURANCES 141. In addition to the commentary on assurances which was summarised in Ismoilov and Others v. Russia, no. 2947/06, §§ 96-100, 24 April 2008, the parties have provided the following materials. A. Reports and other international commentary 142. In its 2006 concluding observations on the United States of America, the UN Committee against Torture recommended that diplomatic assurances should only be relied upon in regard to States which do not systematically violate UNCAT’s provisions, and after a thorough examination of the merits of each individual case. It recommended clear procedures for obtaining assurances, with adequate judicial mechanisms for review, and effective post-return monitoring arrangements. 143. In a February 2006 address to the Council of Europe Group of Specialists on Human Rights and the Fight against Terrorism (DH-S-TER), Louise Arbour, then United Nations Commissioner for Human Rights stated: “Based on the long experience of international monitoring bodies and experts, it is unlikely that a post-return monitoring mechanism set up explicitly to prevent torture and ill-treatment in a specific case would have the desired effect. These practices often occur in secret, with the perpetrators skilled at keeping such abuses from detection. The victims, fearing reprisal, often are reluctant to speak about their suffering, or are not believed if they do.” 144. In his “viewpoint” of 27 June 2006, the Council of Europe Commissioner for Human Rights, Thomas Hammarberg, stated that diplomatic assurances were pledges which were not credible and had turned out to be ineffective in well-documented cases. His view was that the principle of non-refoulement should not be undermined by convenient, non ‑ binding promises. 145. Concerns as to the United Kingdom’s Government’s policy of seeking assurances have also been expressed by the United Kingdom Parliament’s Joint Committee on Human Rights (in its report of 18 May 2006) and the House of Commons Select Committee on Foreign Affairs (in its report of 20 July 2008). 146. Human Rights Watch has strongly criticised the use of assurances. In an essay in its 2008 World Report entitled “Mind the Gap Diplomatic Assurances and the Erosion of the Global Ban on Torture”, it argued that the problem with assurances lay in the nature of torture itself, which was practised in secret using techniques that often defied detection. The essay also considered the arrangements between in the United Kingdom and Jordan. It characterised Adaleh as a small NGO and questioned whether, with little experience, questionable independence and virtually no power to hold the Government to account, it was able to ensure the safety of a person returned under the MOU. B. Complaints relating to Article 3 of UNCAT 147. As stated paragraph 127 above, Article 3 of UNCAT prevents refoulement where there are substantial grounds for believing that someone will be subjected to torture. In Agiza v. Sweden (communication no. 233/2003, decision of 20 May 2005), the complainant had been convicted in absentia by an Egyptian court in 1998 of terrorist activity. In 2000 he claimed asylum in Sweden. His claim was rejected and he was deported to Egypt in December 2001 where he alleged he was tortured. It appears from the decision of the Committee that, while the claim was being considered, Swedish Government officials met representatives of the Egyptian Government in Cairo and obtained guarantees from a senior official that the complainant would be treated in accordance with international law on return. 148. In examining his complaint under Article 3 of UNCAT, the Committee considered that the Swedish authorities knew, or ought to have known, of consistent and widespread use of torture of detainees in Egypt, particularly those detained for political or security reasons. Sweden was also aware that the complainant fell into this category and of the interest of foreign intelligence services in him. Swedish police officers had also acquiesced in ill-treatment by agents of an unspecified foreign State immediately before the complainant’s expulsion. These factors meant Sweden’s expulsion was in breach of Article 3. In the Committee’s view: “the procurement of diplomatic assurances, which, moreover, provided no mechanism for their enforcement, did not suffice to protect against this manifest risk.” 149. The Committee also found that Sweden was in breach of its procedural obligations under the same Article to provide an effective, independent and impartial review of the expulsion decision since it had been taken by the Swedish Government without recourse to the normal appeals process for asylum decisions. Sweden, by immediately removing the applicant after that decision, had also breached its obligations under Article 22 of the Convention to respect the effective right of individual communication with the Committee. 150. In Pelit v Azerbaijan, communication no. 281/2005 decision of 29 May 2007, the complainant was extradited from Azerbaijan to Turkey, despite the Committee’s interim measure indicating that it refrain from doing so until it had considered the case. It appears that, before surrender, Azerbaijan had obtained assurances against ill-treatment from Turkey and made some provisions for monitoring after surrender. The Committee found a breach of Article 3 as Azerbaijan had not supplied the assurances to the Committee in order for the Committee to perform its own independent assessment of their satisfactoriness or otherwise, nor had it detailed with sufficient specificity the monitoring undertaken and the steps taken to ensure that it was objective, impartial and sufficiently trustworthy. C. Alzery v. Sweden 151. In Mohammed Alzery v. Sweden, CCPR/C/88/D/1416/2005, 10 November 2006, the United Nations Human Rights Committee considered the removal of an Egyptian national to Egypt by Sweden, pursuant to diplomatic assurances that had been obtained from the Egyptian government. On the merits of the case, the Committee found : “11.3 .... The existence of diplomatic assurances, their content and the existence and implementation of enforcement mechanisms are all factual elements relevant to the overall determination of whether, in fact, a real risk of proscribed ill-treatment exists. ... 11.5 The Committee notes that the assurances procured contained no mechanism for monitoring of their enforcement. Nor were any arrangements made outside the text of the assurances themselves which would have provided for effective implementation. The visits by the State party’s ambassador and staff commenced five weeks after the return, neglecting altogether a period of maximum exposure to risk of harm. The mechanics of the visits that did take place, moreover, failed to conform to key aspects of international good practice by not insisting on private access to the detainee and inclusion of appropriate medical and forensic expertise, even after substantial allegations of ill-treatment emerged. In light of these factors, the State party has not shown that the diplomatic assurances procured were in fact sufficient in the present case to eliminate the risk of ill-treatment to a level consistent with the requirements of article 7 of the Covenant. The author’s expulsion thus amounted to a violation of article 7 of the Covenant.” D. Canadian case law 1. Suresh 152. In Suresh v. Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3, the Supreme Court of Canada unanimously found that Canadian and international law did not permit deportation where on the evidence there was a substantial risk of torture. It did not find that in all cases deportation would be unconstitutional (and a refugee’s rights could be balanced against the threat he or she posed) but the balance would usually come down against expelling the refugee. The court also made the following comment on reliance on assurances against torture (paragraphs 124 and 125): “A distinction may be drawn between assurances given by a state that it will not apply the death penalty (through a legal process) and assurances by a state that it will not resort to torture (an illegal process). We would signal the difficulty in relying too heavily on assurances by a state that it will refrain from torture in the future when it has engaged in illegal torture or allowed others to do so on its territory in the past. This difficulty becomes acute in cases where torture is inflicted not only with the collusion but through the impotence of the state in controlling the behaviour of its officials. Hence the need to distinguish between assurances regarding the death penalty and assurances regarding torture. The former are easier to monitor and generally more reliable than the latter. In evaluating assurances by a foreign government, the Minister may also wish to take into account the human rights record of the government giving the assurances, the government’s record in complying with its assurances, and the capacity of the government to fulfill the assurances, particularly where there is doubt about the government’s ability to control its security forces.” 2. Mahjoub 153. In Mahjoub v. Canada (Minister of Citizenship and Immigration) 2006 FC 1503, which concerned removal to Egypt, the Federal Court of Canada addressed two issues: whether the Minister should rely on evidence obtained by torture in assessing an individual’s risk to national security and whether it was appropriate to rely on assurances from a country where torture was systematically practiced. For the first issue, the court, having reviewed the relevant Canadian authorities and A and others (no. 2) (see paragraph 136 and 137 above), found that it was wrong in law to rely on evidence likely to have been obtained by torture; however, there had to be a credible evidentiary basis linking torture to the specific evidence at issue in order to justify its exclusion. The balance of probabilities test used in Singh (see paragraphs 139-140 above) was not appropriate in a national security case where the applicant did not see the evidence against him. Instead, where an issue was raised by an applicant offering a plausible explanation why evidence was likely to have been obtained by torture, the decision-maker should then consider this issue in light of the public and classified information. Where the decision-maker found there were reasonable grounds to suspect that evidence was likely obtained by torture, it should not be relied upon in making a determination. For the second, the court found that it was patently unreasonable for the executive decision-maker to have relied on Egypt’s assurances against ill ‑ treatment where she concluded that there was no substantial risk of torture of Mahjoub. It stated: “[The factors set out by the Supreme Court in Suresh ] provide a ‘cautious framework’ for any analysis of the trustworthiness of assurances given by a foreign government. For instance, a government with a poor human rights record would normally require closer scrutiny of its record of compliance with assurances. A poor record of compliance may in turn require the imposition of additional conditions, such as monitoring mechanisms or other safeguards which may be strongly recommended by international human rights bodies. Conversely, a country with a good human rights record would often likely have a correspondingly good record of compliance, and therefore additional conditions may be unnecessary to enhance the reliability of assurances.” In relying on the assurances, the executive had failed to take into account the human rights record of the Egyptian Government as well as its record of compliance with assurances. This was particularly troubling in light of the extensive human rights reports on the poor human rights record of Egypt. The two diplomatic notes which contained the assurances made no mention of monitoring mechanisms, and contained no specific commitments not to abuse Mahjoub. There was nothing to suggest Canada had sought such a monitoring mechanism from Egypt. 3. Lai Cheong Sing 154. In Lai Cheong Sing v. Canada (Minister of Citizenship and Immigration) 2007 FC 361, the applicants’ return to China was sought so they could stand trial for smuggling and bribery. A diplomatic note was provided in which China gave assurances they would not be sentenced to death or tortured. The Federal Court found that the executive decision-maker had been entitled to rely on the assurance against the imposition of the death penalty as the Supreme People’s Court would ensure this would be respected. For the risk for torture, the decision-maker had recognised that assurances were in themselves an acknowledgement that there was a risk of torture in the receiving country but she had found these considerations were offset by the applicants’ notoriety, which would protect them. The court found that she had erred in doing so. First, she had failed to address the applicants’ argument that assurances should not be sought when torture was sufficiently systematic or widespread and, in particular, had failed to assess whether it was appropriate to rely on assurances at all from China. Second, the court found an assurance should at the very least fulfil some essential requirements to ensure that it was effective and meaningful. Unlike the death penalty, torture was practised behind closed doors and was denied by the States where it occurred. Even monitoring mechanisms had proved problematic since, for example, people who have suffered torture or other ill-treatment were often too fearful of retaliation to speak out. The decision-maker therefore erred by failing to determine whether the assurances met the essential requirements to make them meaningful and reliable and by simply relying on the fact that the applicants’ notoriety would protect them. This conclusion was patently unreasonable. For torture to become known, some compliance and verification mechanisms would have to be in place (i.e. effective monitoring systems by independent organisations). Therefore, notoriety would be of no avail to the applicants if torture was practised without anybody every knowing of it. The court rejected the applicants’ submission that an unfair trial in China would amount to cruel and unusual treatment where the consequence was prolonged imprisonment. The court found that the decision-maker had been entitled to conclude that the trial would be fair when, inter alia, there was no evidence that the case against the applicants had been obtained by torture of witnesses. VII. INTERNATIONAL LAW ON REVIEW OF DETENTION AND THE RIGHT TO A FAIR TRIAL A. Review of detention 155. Article 9(3) of the International Covenant on Civil and Political Rights provides inter alia that anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorised by law to exercise judicial power. The Human Rights Committee, in its General Comment No. 8 (1982) on Article 9 indicated that delays pending production before a judge should not exceed a few days. It has found violations of Article 9(3) in respect of periods of detention of four days, seven days and eight days (in, respectively, Freemantle v. Jamaica, Communication No. 625/1995; Grant v. Jamaica, Communication No. 597/1994; and Stephens v. Jamaica, Communication No. 373/1989). In his General Recommendations, the United Nations Special Rapporteur on Torture has stated that the maximum period of detention without judicial warrant should be forty-eight hours (E/CN.4/2003/68, paragraph 26(g)). In Kulomin v. Hungary, Communication No. 521/1992, the Human Rights Committee found that the relevant authority for reviewing detention could not be the public prosecutor who was responsible for the investigation of the suspect’s case as that prosecutor did not have the necessary institutional objectivity and impartiality. B. Access to a lawyer 156. In addition to the materials set out in Salduz v. Turkey [GC], no. 36391/02, §§ 37-44, 27 November 2008, the applicant has provided the following materials. Article 14 § 3 (b) of the International Covenant on Civil and Political Rights (ICCPR) provides that everyone charged with a criminal offence is to be entitled “[t]o have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing”. The Human Rights Committee, in its General Comment 20 (1992) on Article 14, has stated that the protection of the detainee requires that prompt and regular access be given to lawyers. Failure to provide access to a lawyer for five days was found to violate Article 14 in Gridin v. Russia, Communication No. 770/1997. In addition to its General Comment No. 2 (cited in Salduz at paragraph 43) the Committee Against Torture has stressed the right of arrested persons to notify someone of their detention, to have prompt access to a lawyer and to be examined by an independent doctor as fundamental safeguards against torture, particular in the first hours and days of detention when the risk of torture is greatest (see conclusions and recommendations in respect of Albania of 21 June 2005 at paragraph 8(i) and France of 3 April 2006 at paragraph 16). The Special Rapporteur on Torture has said access to a lawyer should be provided within 24 hours (Report of 3 July 2001, A/56/156 at paragraph 39 (f)). C. Military Courts 157. The applicant has provided the following international law materials, which have been produced since Ergin v. Turkey (no. 6), cited above. 158. In General Comment No. 32 of August 2007 on Article 14 of the ICCPR (the right to a fair trial), the Human Rights Committee stated : “While the Covenant does not prohibit the trial of civilians in military or special courts, it requires that such trials are in full conformity with the requirements of article 14 and that its guarantees cannot be limited or modified because of the military or special character of the court concerned. The Committee also notes that the trial of civilians in military or special courts may raise serious problems as far as the equitable, impartial and independent administration of justice is concerned. Therefore, it is important to take all necessary measures to ensure that such trials take place under conditions which genuinely afford the full guarantees stipulated in article 14. Trials of civilians by military or special courts should be exceptional, i.e. limited to cases where the State party can show that resorting to such trials is necessary and justified by objective and serious reasons, and where with regard to the specific class of individuals and offences at issue the regular civilian courts are unable to undertake the trials. (footnotes omitted).” 159. In Madani v. Algeria, Communication No. 1172/2003, 21 June 2007, the Committee concluded that the trial and conviction of the complainant by a military tribunal was in violation of Article 14. This was not avoided by the fact that the military judges had an independent career structure, were subject to supervision by the Supreme Judicial Council or that the court’s judgments were subject to appeal to the Supreme Court. The Committee found that Algeria had failed to show why recourse to a military court was required in Madani’s case: the gravity or character of the offences was not sufficient. This conclusion meant that the Committee did not need to examine whether the military court, as a matter of fact, afforded the full guarantees of Article 14. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 160. Relying on Article 3 of the Convention, the applicant complained that he would be at real risk of being subjected to torture or ill-treatment if deported to Jordan. Article 3 provides as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties’ submissions 1. Government 161. The Government submitted that the materials on diplomatic assurances, which the applicant and third parties had provided (see paragraphs 141–146 above), all spoke of what the practice of courts should be, rather than the established requirements of the Convention. This Court’s approach had been to find that assurances were not in themselves sufficient to prevent ill-treatment; however, the Court would also examine whether such assurances provided in their practical application a sufficient guarantee against ill-treatment (see Babar Ahmad and Others v. the United Kingdom (dec.) nos. 24027/07, 11949/08 and 36742/08, § 106, 6 July 2010). Furthermore, contrary to the applicant’s submission (see paragraph 168 below), there was no principle in the Court’s case-law that, where there was a real risk of ill-treatment owing to systemic torture in the country of destination, assurances were incapable of eliminating that risk. 162. SIAC had followed the Court’s approach to assurances. It had received a wide variety of evidence, both as to the meaning and likely effect of the assurances and the current situation in Jordan. It had examined that evidence with great care in its determination. All the factors it had relied on in reaching its conclusions continued to apply with at least as much force as they did at the time of its determination. Its conclusions could not be altered by the critical reports which had been published since its determination; those reports were of a general nature. If anything, the evidence showed that the human rights situation was improving and had certainly not deteriorated since SAIC’s determination. 163. The Government submitted that SIAC had found that the assurances given by Jordan in the present case would suffice because: (i) Jordan was willing and able to fulfil its undertakings; (ii) the applicant would be protected by his high profile; and (iii) there would be monitoring by the Adaleh Centre. 164. For the first, the Government reiterated that the assurances contained in the MOU had been given in good faith and approved at the highest levels of the Jordanian Government. They were intended to reflect international standards. There was no lack of clarity in them, especially when the MOU was interpreted in its diplomatic and political context. Proper interpretation of the terms of the MOU provided for the applicant to be brought promptly before a judge or other judicial officer (which, in Jordanian law, would include the Public Prosecutor) and for him to have access to independent legal and medical advice. To criticise the MOU because it was not legally binding (as the applicant had) was to betray a lack of an appreciation as to how MOUs worked in practice between states; they were a well-established and much used tool of international relations. There were, as SIAC had found, sound reasons why Jordan would comply with this particular MOU. It was in the interests of both Governments that the assurances be respected; as SIAC had found, Jordan’s position in the Middle East and its relationship with the United States did not change this. SIAC had also found that, notwithstanding the applicant’s submission to the contrary, it was in the interests of both Governments properly to investigate any alleged breaches of the MOU. In the present case, it was also of considerable importance that the GID, which would detain the applicant on return, had “signed up” to the MOU, had been involved in its negotiation, had accepted its monitoring provisions, and had been made aware of the consequences of breaching the assurances. The Government further relied on SIAC’s findings in the appeal of VV (see paragraph 75 above), which updated and confirmed SIAC’s determination in the present applicant’s case. In VV SIAC had accepted Mr Layden’s evidence that the bilateral relationship between the United Kingdom and Jordan, upon which the MOU rested, was a close one. 165. For the second, the Government recalled that SIAC had found the applicant to be a well-known figure in the Arab world and that, regardless of the MOU, his return and subsequent treatment would be a matter of intense local and international media interest and scrutiny. Jordanian civil society, including Jordanian parliamentarians, would follow the applicant’s case with interest. Any ill-treatment would cause considerable outcry and would be destabilising for the Jordanian Government. As SIAC had found, those responsible for his detention would be aware of these factors. 166. For the third, the Government emphasised that, although SIAC had criticised the capacity of the Adaleh Centre, it had by no means discounted the effect of monitoring; indeed, it had found that monitoring would have a positive effect in reducing the risk of ill-treatment. Moreover, since SIAC’s determination, there had been a considerable increase in Adaleh’s expertise. As Mr Layden’s statements indicated, it had received significant European Commission funding; it had started monitoring through its subsidiary, the NTCT; it had obtained practical experience in visiting detainees, included those held by the GID; it had obtained experience working with other NGOs; it had considerably increased its staff, including medical experts; and it had demonstrated its independence from the government, particularly the GID, by publishing a study on torture. Contrary to the applicant’s suggestion, it had retained its not-for-profit status (and its independence) despite the criticism it had received from other NGOs for signing the terms of reference. The Government further submitted that the applicant’s criticisms of Adaleh were, in any event, misplaced because the actual monitoring would be carried out by Adaleh’s subsidiary, the NTCT. The Government also submitted that, whatever the general problems with human rights monitoring in Jordan, the MOU and the terms of reference provided Adaleh with a clear and detailed mandate and it was clear to all parties how monitoring visits were to proceed. If Adaleh encountered any problems, it could alert the United Kingdom Embassy in Amman. The Government also underlined that, in accordance with the Note Verbale annexed to Mr Layden’s second statement (see paragraph 90 above), monitoring would continue for as long as the applicant was detained. 167. For these reasons, the Government submitted there were considerable distinctions between the assurances previously considered by the Court and those provided by Jordan. Those assurances, when taken with the monitoring provisions, were sufficient to ensure that there would be no violation if the applicant were deported to Jordan. 2. The applicant 168. The applicant submitted that, as a matter of law, proper regard had to be given to the international community’s criticism of assurances. The international consensus was that assurances undermined the established international legal machinery for the prohibition on torture and, if a country was unwilling to abide by its international law obligations, then it was unlikely to abide by bilateral assurances. International experience also showed that proof of compliance was notoriously difficult. The applicant also submitted that, following the approach taken by the Supreme Court of Canada in Suresh (see paragraph 152 above), it was also appropriate to distinguish between an assurance that a State would not do something legal (such as carry out the death penalty) and an assurance that it will not do something illegal (such as commit torture). Moreover, this Court’s case law, particularly Shamayev and Ismoilov, cited above, demonstrated that, once a particular risk was shown to apply to an individual, assurances would not be sufficient, especially when torture was also shown to be systemic in the country of destination. He submitted, therefore, assurances would only suffice where (i) a previous systemic problem of torture had been brought under control; and (ii) although isolated, non-systemic acts continued, there was independent monitoring by a body with a track-record of effectiveness, and criminal sanctions against transgressors. These criteria had not been met in his case. 169. The applicant relied on the evidence set out at paragraphs 106–124 above, which, he submitted, demonstrated that Jordanian prisons were beyond the rule of law. Torture was endemic, particularly for GID prisons and Islamist prisoners, who were frequently beaten. There was a systemic failure to carry out prompt and effective investigations of allegations of torture. This evidence was even more compelling than at the time of SIAC’s determination. Moreover, the culture of impunity that prevailed in the GID rendered it incapable of abiding by the assurances, even if its leadership wanted to. Jordan could not be relied upon to meet its international human rights obligations. It had refused to submit to any form of enforcement of those obligations; for instance, it had refused to ratify either Article 22 to UNCAT (the right of individual petition to the Committee against Torture) or the Optional Protocol to UNCAT (which established the Sub-Committee on the Prevention of Torture and gave it, inter alia, the right to visit places of detention). 170. The Jordanian Government’s assurances in his case also had to be seen in their proper political context. Although strategically important, Jordan was unstable, reliant on American patronage, prone to unrest and vulnerable to Islamism. Thus, while he did not contest that external relations between Jordan and the United Kingdom were close, the applicant considered these countervailing factors meant the bilateral relationship between the two countries was insufficient to guarantee adherence to the MOU. 171. Against this background, his high profile would not protect him but would in fact place him at greater risk; in fact, it was his profile that necessitated the MOU in the first place. He had previously been tortured because he had publically criticised Jordan’s foreign policy. Jordan’s extradition request had been withdrawn because his presence was not considered to be desirable. That assessment could only have been confirmed by SIAC’s conclusions as to the national security threat he posed to the United Kingdom. Moreover, Jamil el Banna, Bishar al Rawi and Binyam Mohamed, who had been detained by the United States authorities at Guantánamo Bay and elsewhere, had stated that they had been interrogated at length as to their links with him. If deported, he would be regarded as a significant threat to the country and the Middle East. In such an unstable environment, the Jordanian Government’s calculations as to whether to abide by the MOU could well change. These factors, when taken with the culture of impunity in the GID, meant his high profile would operate, not as a source of protection, but as a magnet for abuse. Moreover, it was irrational for SIAC to have found that Jordan would abide by the assurances because an allegation of ill-treatment – whether true or not – could be just as destabilising as proof that the allegation was correct. On this finding, there would be no reason for the Jordanian authorities not to ill-treat the applicant, as it would always be open to him to make a false allegation. 172. There were also a number of deficiencies in the MOU. It was not clear what was meant by “judge” in respect of the guarantee that he would be “brought promptly before a judge”; it could simply mean that he will brought before a prosecutor acting as an administrative judge. It was not also clear whether he would have access to a lawyer during the interrogation period of his detention. It was also not clear whether MOU prohibited rendition, which was made more likely by the interest the United States had in him and the evidence of Jordan’s participation in previous renditions. Finally, it was not clear whether, as a matter of Jordanian law, the assurances in the MOU were legal and enforceable when they had not been approved by the Jordanian Parliament. He submitted a statement to that effect from the head of another Jordanian NGO, the Arab Organisation for Human Rights, which had declined to take on the role of monitoring body for that reason. 173. In respect of monitoring of the assurances, he adopted the views of the third party interveners that there was no independent monitoring in Jordan, a factor which, he submitted, had to weigh in the balance in considering Adaleh’s capabilities. For Adaleh itself, the striking feature of the evidence before the Court was that, even in the intervening time since SIAC’s determination, it was still without any practical experience of human rights monitoring and was instead mostly concerned with training and advocacy work. Moreover, although Adaleh had produced one report on combating torture in 2008, it was significant that the report made no direct criticism of the GID. 174. Notwithstanding Adaleh’s own limitations, the nature of the monitoring provided for by the terms of reference was also limited. Consistently with those terms of reference, Jordan could limit access to one visit every two weeks. In addition, no provision was made for independent medical examinations; Adaleh would not enjoy unfettered access to the entire place of the applicant’s detention, as it would merely be entitled to a private visit with him; there was no mechanism for Adaleh to investigate a complaint of ill-treatment; neither the applicant nor his lawyers would have access to Adaleh’s reports to the Jordanian and United Kingdom Governments; and it appeared that monitoring would be limited to three years. All of these factors meant that Adaleh’s monitoring fell short of international standards, such as those set out in the Optional Protocol to UNCAT. Moreover, even assuming that Adaleh was able to seek entry to the applicant’s place of detention, in order to escape monitoring, the authorities would simply have to tell them that the applicant did not wish to see them. 3. Third party interveners 175. The third party interveners (see paragraph 5 above) submitted that the use of diplomatic assurances was a cause for grave concern. Such bilateral, legally unenforceable diplomatic agreements undermined the ius cogens nature of the absolute prohibition on torture and the non-refoulement obligation. They also undermined the binding, multilateral, international legal system which held states to these obligations. Assurances had been widely condemned as wrong in principle and ineffective in practice by international experts such as the UN High Commissioner for Human Rights, the Council of Europe Committee for the Prevention of Torture, as well as the United Kingdom Joint Committee on Human Rights (see paragraphs 141- 145 above). 176. More practically, there were four significant weaknesses in assurances. First, they were unable to detect abuse. Torture was practised in secret and sophisticated torture techniques were difficult to detect, particularly given the reluctance of victims to speak frankly to monitors for fear of reprisals. 177. Second, the monitoring regimes provided for by assurances were unsatisfactory. For example, they contrasted unfavourably with the International Committee of the Red Cross’ practice of never visiting single detainees so as to avoid involuntary identification of those who complain of abuse. The third parties also noted that the UN Special Rapporteur had also rejected the proposition that visits to a single detainee could be an effective safeguard. It was also noteworthy that the Committee for the Prevention of Torture had declined to monitor compliance with assurances. 178. Third, frequently, local monitors lacked the necessary independence. They did not possess the authority to gain access to places of detention, to lodge complaints or to exert pressure on the authorities to halt any abuses. They were themselves subject to harassment and intimidation. 179. Fourth, assurances also suffered from a lack of incentives to reveal breaches as neither Government concerned would wish to admit to breaching its international obligations and, in the case of the sending Government, to jeopardise future deportations on grounds of national security. As unenforceable promises from one State to another, assurances could be breached without serious consequences. 180. The third parties also submitted that their own reports (summarised at paragraphs 112–118 above) had documented Jordan’s longstanding record of torture and ill-treatment of terrorist and national security suspects. In their submission, those reports showed that the GID had continually frustrated efforts to carry out monitoring. For example, in 2003 the International Committee of the Red Cross had been forced to suspend visits owing to breaches in visitation procedures by the GID; the UN Special Rapporteur had been prevented from carrying out private interviews. The GID continued to deny all allegations of ill-treatment. Internal redress for allegations was non-existent and criminal sanctions were inadequate. The few officers who had been convicted of torture had been given excessively lenient sentences. 181. The view of the third parties, which was based on interviews between Human Rights Watch and the head of Adaleh, was that the centre was a for-profit company which had not carried out any inspections. Nor had the centre privately or publicly expressed any concerns of ill-treatment in Jordanian detention facilities. B. Admissibility 182. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. C. Merits 1. General principles 183. First, the Court wishes to emphasise that, throughout its history, it has been acutely conscious of the difficulties faced by States in protecting their populations from terrorist violence, which constitutes, in itself, a grave threat to human rights (see, inter alia, Lawless v. Ireland (no. 3), 1 July 1961, §§ 28–30, Series A no. 3; Ireland v. the United Kingdom, 18 January 1978, Series A no. 25, Öcalan v. Turkey [GC], no. 46221/99, § 179, ECHR 2005 ‑ IV; Chahal, cited above, § 79; A and Others v. the United Kingdom, cited above, § 126; A. v. the Netherlands, no. 4900/06, § 143, 20 July 2010). Faced with such a threat, the Court considers it legitimate for Contracting States to take a firm stand against those who contribute to terrorist acts, which it cannot condone in any circumstances ( Boutagni v. France, no. 42360/08, § 45, 18 November 2010; Daoudi v. France, no. 19576/08, § 65, 3 December 2009). 184. Second, as part of the fight against terrorism, States must be allowed to deport non-nationals whom they consider to be threats to national security. It is no part of this Court’s function to review whether an individual is in fact such a threat; its only task is to consider whether that individual’s deportation would be compatible with his of her rights under the Convention (see also Ismoilov and Others, cited above, §126). 185. Third, it is well-established that expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country. Article 3 is absolute and it is not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion ( Saadi v. Italy [GC], no. 37201/06, §§ 125 and 138, ECHR 2008-...). 186. Fourth, the Court accepts that, as the materials provided by the applicant and the third party interveners show, there is widespread concern within the international community as to the practice of seeking assurances to allow for the deportation of those considered to be a threat to national security (see paragraphs 141- 145 above and Ismoilov and Others, cited above, §§ 96-100). However, it not for this Court to rule upon the propriety of seeking assurances, or to assess the long term consequences of doing so; its only task is to examine whether the assurances obtained in a particular case are sufficient to remove any real risk of ill-treatment. Before turning to the facts of the applicant’s case, it is therefore convenient to set out the approach the Court has taken to assurances in Article 3 expulsion cases. 187. In any examination of whether an applicant faces a real risk of ill ‑ treatment in the country to which he is to be removed, the Court will consider both the general human rights situation in that country and the particular characteristics of the applicant. In a case where assurances have been provided by the receiving State, those assurances constitute a further relevant factor which the Court will consider. However, assurances are not in themselves sufficient to ensure adequate protection against the risk of ill ‑ treatment. There is an obligation to examine whether assurances provide, in their practical application, a sufficient guarantee that the applicant will be protected against the risk of ill-treatment. The weight to be given to assurances from the receiving State depends, in each case, on the circumstances prevailing at the material time (see Saadi, cited above, § 148). 188. In assessing the practical application of assurances and determining what weight is to be given to them, the preliminary question is whether the general human rights situation in the receiving State excludes accepting any assurances whatsoever. However, it will only be in rare cases that the general situation in a country will mean that no weight at all can be given to assurances (see, for instance, Gaforov v. Russia, no. 25404/09, § 138, 21 October 2010; Sultanov v. Russia, no. 15303/09, § 73, 4 November 2010; Yuldashev v. Russia, no. 1248/09, § 85, 8 July 2010; Ismoilov and Others, cited above, §127). 189. More usually, the Court will assess first, the quality of assurances given and, second, whether, in light of the receiving State’s practices they can be relied upon. In doing so, the Court will have regard, inter alia, to the following factors: (i) whether the terms of the assurances have been disclosed to the Court ( Ryabikin v. Russia, no. 8320/04, § 119, 19 June 2008; Muminov v. Russia, no. 42502/06, § 97, 11 December 2008; see also Pelit v. Azerbaijan, cited above); (ii) whether the assurances are specific or are general and vague ( Saadi ¸ cited above; Klein v. Russia, no. 24268/08, § 55, 1 April 2010; Khaydarov v. Russia, no. 21055/09, § 111, 20 May 2010); (iii) who has given the assurances and whether that person can bind the receiving State ( Shamayev and Others v. Georgia and Russia, no. 36378/02, § 344, ECHR 2005 ‑ III; Kordian v. Turkey (dec.), no. 6575/06, 4 July 2006; Abu Salem v. Portugal (dec.), no 26844/04, 9 May 2006; cf. Ben Khemais v. Italy, no. 246/07, § 59, ECHR 2009 ‑ ... (extracts); Garayev v. Azerbaijan, no. 53688/08, § 74, 10 June 2010; Baysakov and Others v. Ukraine, no. 54131/08, § 51, 18 February 2010; Soldatenko v. Ukraine, no. 2440/07, § 73, 23 October 2008); (iv) if the assurances have been issued by the central government of the receiving State, whether local authorities can be expected to abide by them ( Chahal, cited above, §§ 105-107); (v) whether the assurances concerns treatment which is legal or illegal in the receiving State ( Cipriani v. Italy (dec.), no. 221142/07, 30 March 2010; Youb Saoudi v. Spain (dec.), no. 22871/06, 18 September 2006; Ismaili v. Germany, no. 58128/00, 15 March 2001; Nivette v. France (dec.), no 44190/98, ECHR 2001 VII; Einhorn v. France (dec.), no 71555/01, ECHR 2001-XI; see also Suresh and Lai Sing, both cited above) (vi) whether they have been given by a Contracting State ( Chentiev and Ibragimov v. Slovakia (dec.), nos. 21022/08 and 51946/08, 14 September 2010; Gasayev v. Spain (dec.), no. 48514/06, 17 February 2009); (vii)the length and strength of bilateral relations between the sending and receiving States, including the receiving State’s record in abiding by similar assurances ( Babar Ahmad and Others, cited above, §§ 107 and 108; Al ‑ Moayad v. Germany (dec.), no. 35865/03, § 68, 20 February 2007); (viii) whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant’s lawyers ( Chentiev and Ibragimov and Gasayev, both cited above; cf. Ben Khemais, § 61 and Ryabikin, § 119, both cited above; Kolesnik v. Russia, no. 26876/08, § 73, 17 June 2010; see also Agiza, Alzery and Pelit, cited above); (ix) whether there is an effective system of protection against torture in the receiving State, including whether it is willing to cooperate with international monitoring mechanisms (including international human rights NGOs), and whether it is willing to investigate allegations of torture and to punish those responsible ( Ben Khemais, §§ 59 and 60; Soldatenko, § 73, both cited above; Koktysh v. Ukraine, no. 43707/07, § 63, 10 December 2009); (x) whether the applicant has previously been ill-treated in the receiving State ( Koktysh, § 64, cited above); and (xi) whether the reliability of the assurances has been examined by the domestic courts of the sending/Contracting State ( Gasayev; Babar Ahmad and Others ¸ § 106; Al-Moayad, §§ 66-69). 2. The applicant’s case 190. In applying these factors to the present case, the Court wishes to state that it has only considered the open evidence led before SIAC, the additional evidence which has been submitted to the Court (summarised at paragraphs 83–92 above), and publicly available reports on the human rights situation in Jordan (summarised at paragraphs 106–124 above). The Court has not received the additional closed evidence that was before SIAC, nor has it been asked to consider that evidence. Similarly, since it has not considered SIAC’s closed judgment, it is of no relevance to the Court’s own, ex nunc assessment of whether there would be a violation of Article 3 that SIAC, in forming its own conclusion on Article 3, considered additional, closed evidence that was not recorded in its open determination. 191. Turning therefore to the evidence before it, the Court first notes that the picture painted by the reports of United Nations bodies and NGOs of torture in Jordanian prisons is as consistent as it is disturbing. Whatever progress Jordan may have made, torture remains, in the words of the United Nations Committee Against Torture, “widespread and routine” (see paragraph 107 above). The Committee’s conclusions are confirmed by the other reports summarised at paragraphs 106–124 above, which demonstrate beyond any reasonable doubt that torture is perpetrated systematically by the General Intelligence Directorate, particularly against Islamist detainees. Torture is also practiced by the GID with impunity. This culture of impunity is, in the Court’s view, unsurprising: the evidence shows that the Jordanian criminal justice system lacks many of the standard, internationally recognised safeguards to prevent torture and punish its perpetrators. As the Human Rights Committee observed in its concluding observations, there is an absence of a genuinely independent complaints mechanism, a low number of prosecutions, and the denial of prompt access to lawyers and independent medical examinations (see paragraph 108 above). The conclusions of the Committee Against Torture (which are corroborated by the reports of Amnesty International, Human Rights Watch and the Jordanian National Centre for Human Rights) show that these problems are made worse by the GID’s wide powers of detention and that, in state security cases, the proximity of the Public Prosecutor to the GID means the former provides no meaningful control over the latter (see paragraphs 107, 112–113, 116 and 119–122 above). Finally, as the Special Rapporteur, Amnesty International and the NCHR confirm, there is an absence of co ‑ operation by the GID with eminent national and international monitors (see paragraphs 109 and 121 above). 192. As a result of this evidence it is unremarkable that the parties accept that, without assurances from the Jordanian Government, there would be a real risk of ill-treatment of the present applicant if he were returned to Jordan. The Court agrees. It is clear that, as a high profile Islamist, the applicant is part of a category of prisoners who are frequently ill-treated in Jordan. It is also of some relevance that he claims to have previously been tortured in Jordan (see his asylum claim, summarised at paragraph 7 above). However, consistent with the general approach the Court has set out at paragraphs 187–189 above, the Court must also consider whether the assurances contained in the MOU, accompanied by monitoring by Adaleh, remove any real risk of ill-treatment of the applicant. 193. In considering that issue, the Court observes that the applicant has advanced a number of general and specific concerns as to whether the assurances given by Jordan are sufficient to remove any real risk of ill-treatment of him. At the general level, he submits that, if Jordan cannot be relied on to abide by its legally binding, multilateral international obligations not to torture, it cannot be relied on to comply with non-binding bilateral assurances not to do so. He has also argued that assurances should never be relied on where there is a systematic problem of torture and ill ‑ treatment and further argues that, even where there is evidence of isolated, non-systemic acts of torture, reliance should only be placed on assurances where those are supported by the independent monitoring of a body with a demonstrable track-record of effectiveness in practice. The Court does not consider that these general submissions are supported by its case-law on assurances. As the general principles set out at paragraphs 187 ‑ 189 above indicate, the Court has never laid down an absolute rule that a State which does not comply with multilateral obligations cannot be relied on to comply with bilateral assurances; the extent to which a State has failed to comply with its multilateral obligations is, at most, a factor in determining whether its bilateral assurances are sufficient. Equally, there is no prohibition on seeking assurances when there is a systematic problem of torture and ill ‑ treatment in the receiving State; otherwise, as Lord Phillips observed (see paragraph 57 above), it would be paradoxical if the very fact of having to seek assurances meant one could not rely on them. 194. Moreover, the Court does not consider that the general human rights situation in Jordan excludes accepting any assurances whatsoever from the Jordanian Government. Instead, the Court considers the United Kingdom and Jordanian Governments have made genuine efforts to obtain and provide transparent and detailed assurances to ensure that the applicant will not be ill-treated upon return to Jordan. The product of those efforts, the MOU, is superior in both its detail and its formality to any assurances which the Court has previously examined (compare, for example, the assurances provided in Saadi, Klein and Khaydarov, all cited at paragraph 189(ii) above). The MOU would also appear to be superior to any assurances examined by the United Nations Committee Against Torture and the United Nations Human Rights Committee (see Agiza, Alzery and Pelit, summarised at paragraphs 147–151 above). The MOU is specific and comprehensive. It addresses directly the protection of the applicant’s Convention rights in Jordan (see paragraphs 1–8 of the MOU, set out at paragraphs 77 and 78 above). The MOU is also unique in that it has withstood the extensive examination that has been carried out by an independent tribunal, SIAC, which had the benefit of receiving evidence adduced by both parties, including expert witnesses who were subject to extensive cross-examination (see paragraphs 28 and 189(xi) above). 195. The Court also agrees with SIAC’s general assessment that the assurances must be viewed in the context in which they have been given. Although the Court considers that, in his statements to the Court (summarised at paragraphs 83–90 above), Mr Layden has a tendency to play down the gravity of Jordan’s record on torture, by virtue of his position he is able to speak with some authority as to the strength of the United Kingdom ‑ Jordanian bilateral relationship as well as the importance of the MOU to that relationship. From Mr Layden’s statements, and the further evidence before SIAC, the Court considers that there is sufficient evidence for it to conclude that the assurances were given in good faith by a Government whose bilateral relations with the United Kingdom have, historically, been very strong (see Babar Ahmad and Others and Al ‑ Moayad, both cited at paragraph 189(vii) above). Moreover, they have been approved at the highest levels of the Jordanian Government, having the express approval and support of the King himself. Thus, it is clear that, whatever the status of the MOU in Jordanian law, the assurances have been given by officials who are capable of binding the Jordanian State (cf. Ben Khemais, Garayev, Baysakov and others, and Soldatenko, all cited at paragraph 189(iii) above). Just as importantly, the assurances have the approval and support of senior officials of the GID (cf. Chahal, cited at paragraph 189(iv) above). In the Court’s view, all of these factors make strict compliance with both the letter and spirit of the MOU more likely. 196. Similarly, although the applicant has argued that his high profile would place him at greater risk, the Court is unable to accept this argument, given the wider political context in which the MOU has been negotiated. It considers it more likely that the applicant’s high profile will make the Jordanian authorities careful to ensure he is properly treated; the Jordanian Government is no doubt aware that not only would ill-treatment have serious consequences for its bilateral relationship with the United Kingdom, it would also cause international outrage. Admittedly, as it was put by the Federal Court of Canada in Lai Sing (see paragraph 154 above), notoriety is of no avail if torture is practised without anybody ever knowing it. However, that argument carries less weight in the present case not least because of the monitoring mechanisms which exist in the present case and which were wholly absent in Lai Sing. 197. In addition to general concerns about the MOU, the Court notes that the applicant has relied on six specific areas of concern as to the meaning and operation of the assurances. He submits that the MOU is not clear as to: (i) what was meant by “judge” in respect of the guarantee that he would be “brought promptly before a judge”; (ii) whether he would have access to a lawyer during the interrogation period of his detention; (iii) whether rendition is prohibited; (iv) whether, as a matter of Jordanian law, the assurances in the MOU were legal and enforceable; (v) Adaleh’s terms of access to him; and (vi) its capacity to monitor the assurances. The Court will consider each concern in turn. 198. For the first, the Court considers that the MOU would have been considerably strengthened if it had contained a requirement that the applicant be brought within a short, defined period after his arrest before a civilian judge, as opposed to a military prosecutor. This is all the more so when experience has shown that the risk of ill-treatment of a detainee is greatest during the first hours or days of his or her detention (see the views of the United Nations Committee Against Torture at paragraph 156 above; the Committee for the Prevention of Torture 9 th General Report, quoted in Panovits v. Cyprus, no. 4268/04, § 46, 11 December 2008). However, the Court notes that, although it is unusual for lawyers to accompany detainees to appearances before the Public Prosecutor, as a matter of Jordanian law, the applicant would be entitled as of right to have a lawyer present (see Mr Al-Khalila and Mr Najdawi’s report at paragraph 97 above). Given that the applicant’s appearance before the Public Prosecutor within twenty-four hours of his return would be the first public opportunity for the Jordanian authorities to demonstrate their intention to comply with the assurances, the Court considers that it would be unlikely for the Public Prosecutor to refuse to allow a lawyer to be present. Moreover, the applicant’s first appearance before the Public Prosecutor must be seen in the context of the other arrangements which are in place for his return. For instance, it is likely that the monitors who would travel with the applicant from the United Kingdom to Jordan would remain with him for at least part of the first day of detention in Jordan. This compares favourably with the delay of five weeks in obtaining access which the UN Human Rights Committee found to be deficient in Alzery (see paragraph 151 above) and significantly diminishes any risk of ill-treatment that may have arisen from a lack of clarity in the MOU. 199. For the second concern, the absence of a lawyer during interrogation, SIAC found that it was unlikely that the applicant would have a lawyer present during questioning by the GID, that it was likely that he would have a lawyer present for any questioning by the Public Prosecutor and very likely that he would have such representation for any appearance before a judge. Denial of access to a lawyer to a detainee, particularly during interrogation is a matter of serious concern: the right of a detainee to have access to legal advice is a fundamental safeguard against ill-treatment ( Salduz, cited above, § 54). However, in the present case, that risk is substantially reduced by the other safeguards contained in the MOU and the monitoring arrangements. 200. Third, the Court would discount the risk that the applicant would be ill-treated if questioned by the CIA, that he would be placed in a secret GID or CIA “ghost” detention facility in Jordan, or that he would be subject to rendition to a place outside Jordan. In Babar Ahmad and Others, cited above, §§ 78-82 and 113-116, the Court observed that extraordinary rendition, by its deliberate circumvention of due process, was anathema to the rule of law and the values protected by the Convention. However, in that case, it found the applicants’ complaints that they would be subjected to extraordinary rendition to be manifestly ill-founded. Although the United States, which had requested their extradition, had not given any express assurances against rendition, it had given assurances that they would be tried before federal courts; the Court found rendition would hardly be compatible with those assurances. Similar considerations apply in the present case. Although rendition is not specifically addressed in the MOU, the MOU clearly contemplates that the applicant will be deported to Jordan, detained and retried for the offences for which he was convicted in absentia in 1998 and 1999. If he is convicted, he will be imprisoned in a GID detention facility. It would wholly incompatible with the MOU for Jordan to receive the applicant and, instead of retrying him, to hold him at an undisclosed site in Jordan or to render him to a third state. By the same token, even if he were to be interrogated by the United States authorities while in GID detention, the Court finds no evidence to cast doubt on SIAC’s conclusion that the Jordanian authorities would be careful to ensure that the United States did not “overstep the mark” by acting in a way which violated the spirit if not the letter of the MOU. 201. Fourth, it may well be that as matter of Jordanian law the MOU is not legally binding. Certainly, as an assurance against illegal behaviour, it should be treated with more scepticism than in a case where the State undertakes not to do what is permitted under domestic law (see paragraph 189(v) above). Nevertheless, SIAC appreciated this distinction. It is clear from its determination that SIAC exercised the appropriate caution that should attach to such an assurance (see its general findings on the MOU at paragraphs 29 et seq. above). The Court shares SIAC’s view, not merely that there would be a real and strong incentive in the present case for Jordan to avoid being seen to break its word but that the support for the MOU at the highest levels in Jordan would significantly reduce the risk that senior members of the GID, who had participated in the negotiation of the MOU, would tolerate non-compliance with its terms. 202. Fifth, the applicant has relied on the discrepancy between the Arabic and English versions of the MOU as evidence that Adaleh will only have access to him for three years after his deportation. However, the Court considers that this issue has been resolved by the diplomatic notes which have been exchanged by the Jordanian and United Kingdom Governments (see Mr Layden’s second statement at paragraph 90 above), which make clear that Adaleh will have access to the applicant for as long as he remains in detention. 203. Sixth, it is clear that the Adaleh Centre does not have the same expertise or resources as leading international NGOs such as Amnesty International, Human Rights Watch or the International Committee of the Red Cross. Nor does it have the same reputation or status in Jordan as, for example, the Jordanian NCHR. However, in its determination SIAC recognised this weakness. It recognised the Centre’s “relative inexperience and scale” but concluded that it was the very fact of monitoring visits which was important (see paragraph 31 above). The Court agrees with this conclusion. Moreover, the Court is persuaded that the capability of the Centre has significantly increased since SIAC’s determination, even if it still has no direct experience of monitoring. Mr Layden’s statements show that it has been generously funded by the United Kingdom Government, which in itself provides a measure of independence for the Centre, at least from the Jordanian Government. Given the United Kingdom Government’s broader interest in ensuring that the assurances are respected, it can be expected that this funding will continue. Nothing would appear to turn on any change which may have taken place in the Centre’s legal status, nor on the fact that several other organisations may have been approached as possible monitoring bodies before it. Although credence must be attached to Mr Wilke’s account that the head of the Centre, Mr Rababa, appeared to know little of the applicant’s legal proceedings in the United Kingdom, it must now be clear to Mr Rababa, from the meetings he has had with United Kingdom Government Ministers, what the role of the Centre is in monitoring, as well as the importance of the issue to the United Kingdom Government. Similarly, although Mr Rababa may well have family ties the security services, as alleged by Ms Refahi in her second statement (see paragraph 92 above), there is no evidence that anyone close to him will be responsible for the applicant’s detention. More importantly, the scrutiny the Centre can expect from Jordanian and international civil society as to how it carries out the monitoring must outweigh any remote risk of bias that might arise from Mr Rababa’s family ties. 204. Although the precise nature of the relationship between the Centre and its subsidiary, the National Team to Combat Torture, is unclear, it would appear that the NTCT is fully staffed and has the necessary interdisciplinary expertise to draw on for monitoring (see Mr Layden’s first statement at paragraph 87 above). The Court would expect that, whatever allegations have been made as to the composition of the NTCT, the applicant would be visited by a delegation which included medical and psychiatric personnel who were capable of detecting physical or psychological signs of ill-treatment (see paragraph 4(d) of the terms of reference for the Centre, quoted at paragraph 81 above). There is every reason to expect that the delegation would be given private access to the applicant (paragraph 4(c) of the terms of reference, ibid.). It would clearly be in the applicant’s interest to meet the delegation according to the pre ‑ arranged timetable and thus the Court considers it is implausible that the GID, in order to escape monitoring, would tell the delegation that the applicant did not wish to see them. In the event that the delegation were to receive such a response, the Court considers that this would be precisely the kind of situation that would result in the “rapidly escalating diplomatic and Ministerial contacts and reactions” foreseen by Mr Oakden in his evidence to SIAC (see paragraph 30 above). For these reasons, the Court is satisfied that, despite its limitations, the Adaleh Centre would be capable of verifying that the assurances were respected. 205. For the foregoing reasons the Court concludes that, on the basis of the evidence before it, the applicant’s return to Jordan would not expose him to a real risk of ill-treatment. 206. Finally, in the course of the written proceedings, a question was put to the parties as to whether the applicant was at risk of a sentence of life imprisonment without parole and, if so, whether this would be compatible with Article 3 of the Convention. The parties agreed there was no such risk as life sentences in Jordan ordinarily last twenty years. The applicant also accepted that the length of his sentence could be examined in the context of his Article 6 complaint. The Court agrees with the parties and considers that, in the applicant’s case, no issue would arise under Article 3 in respect of the length of any sentence which may be imposed on him in Jordan. 207. Accordingly, the Court finds that the applicant’s deportation to Jordan would not be in violation of Article 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 13 TAKEN IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION 208. The applicant complained that it was incompatible with Article 3 taken in conjunction with Article 13 of the Convention for SIAC, in order to establish the effectiveness of the assurances given by Jordan, to rely upon material which was not disclosed to him. Article 13 provides as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties’ submissions 1. Government 209. The Government adopted the reasoning of the House of Lords in the present case (see paragraphs 54–56 above). They submitted that the Court’s established case-law made clear that an effective remedy under Article 13 was not required to satisfy all the requirement of Article 6. All that was required by Article 13 was independent and impartial scrutiny of an applicant’s Article 3 claim. This in turn required that an independent appeal body be informed of the reasons for deportation; there had to be a form of adversarial proceedings, if necessary through a special representative with security clearance; and that the body be competent to reject the executive’s assertions where it finds them arbitrary or unreasonable ( Al-Nashif v. Bulgaria, no. 50963/99, §§ 133–137, 20 June 2002; C.G. and Others v. Bulgaria, no. 1365/07, §§ 57 and 62, 24 April 2008). 210. SIAC procedures clearly satisfied these requirements. As the Court had held in A and Others v. the United Kingdom, cited above, § 219, it was a fully independent court, which could examine all the relevant evidence, both closed and open. This is especially so, given the Secretary of State’s obligation to disclose evidence which helps an appellant and the fact that the closed sessions enabled SIAC to see more evidence than would otherwise be the case. Proceedings before SIAC were adversarial, involving the applicant’s own representatives and, in closed sessions, the special advocates. SIAC’s jurisdiction was not limited to reviewing the executive’s decision on grounds of arbitrariness or unreasonableness: it conducted a full merits review and had allowed appeals against deportation, for instance in DD and AS (see paragraph 74 above). In the applicant’s case, SIAC had stated in its open judgment that the closed evidence played a limited and confirmatory role in its decision. 2. The applicant 211. The applicant observed that, after Chahal, cited above, SIAC and the system of special advocates had been designed to allow the Secretary of State to present her case as to why a particular returnee was a risk to national security, not to allow secret evidence on safety on return. A ministerial assurance to that effect had been given to Parliament when it passed the 1997 Act (Hansard, HC Deb 26 November 1997 vol 301, at 1040). 212. The Court had never regarded it as permissible, either in Chahal or subsequently, for the quality of assurances to be tested on the basis of evidence heard in secret. Moreover, the Court had emphasised in Saadi, cited above, § 127) that the examination of the existence of a real risk “must necessarily be a rigorous one”. The applicant submitted that even greater rigour was required in a case involving assurances when the respondent State accepted that, without those assurances, there would be real risk of ill ‑ treatment. For that reason, he submitted that there ought to be an enhanced requirement for transparency and procedural fairness where assurances were being relied upon because, in such a case, the burden fell on the respondent State to dispel any doubts about a serious risk of ill ‑ treatment on return. As a matter of principle, therefore, a respondent State should never be allowed to rely on confidential material on safety of return. Not only was it unfair to do so, it ran the unacceptable risk of not arriving at the correct result. This was not a theoretical issue in his case: it was clear that closed evidence had been critical in his case. For instance, it was clear that evidence had been heard in closed session about the United States and its interest in interviewing him. It was also clear that closed evidence had been relied on to support SIAC’s finding that the GID leadership were committed to respecting the assurances. Finally, he submitted that the special advocate system could not mitigate the difficulties faced in challenging Foreign and Commonwealth Office witnesses as to the negotiation of the MOU. 3. Third party interveners 213. The third parties (see paragraph 5 above) submitted that Lord Phillips had erred in his reasons for holding that there would be no unfairness in SIAC hearing closed evidence on safety on return. It was true a returnee would typically have knowledge of some of the facts relevant to safety on return, but it did not follow that he would not be seriously disadvantaged by not knowing the Government’s case. Procedural fairness required that the applicant be given sufficient detail of the Government’s case to enable him to give effective instructions to his special advocate. It was also a mistake to suppose that the returnee would having nothing to say in reply to information that the receiving Government might have communicated confidentially to the United Kingdom Government; one could never know what difference disclosure to the applicant could make. The safeguard of the special advocate was not sufficient; the Grand Chamber in A and Others v. the United Kingdom, cited above, had recognised the difficulties special advocates had in defending the returnees interests in closed sessions of SIAC. B. Admissibility 214. The Court notes that this complaint is linked to the applicant’s substantive Article 3 complaint and must therefore likewise be declared admissible. C. Merits 215. The requirements of Article 13 in the context of an arguable Article 3 claim were recently set out in A. v. the Netherlands, cited above, §§ 155 ‑ 158, which concerned the proposed expulsion of a terrorist suspect to Libya: “155. The Court reiterates that Article 13 guarantees the availability at the national level of a remedy to enforce – and hence to allege non-compliance with – the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order and bearing in mind that Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision (see Shamayev and Others v. Georgia and Russia, no. 36378/02, § 444, ECHR 2005 III). For Article 13 to be applicable, the complaint under a substantive provision of the Convention must be arguable. In view of the above finding under Article 3, the Court considers that the applicant’s claim under Article 3 was “arguable” and, thus, Article 13 was applicable in the instant case. 156. The Court further reiterates that the remedy required by Article 13 must be effective both in law and in practice, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see Shamayev and Others, cited above, § 447). The Court is not called upon to review in abstracto the compatibility of the relevant law and practice with the Convention, but to determine whether there was a remedy compatible with Article 13 of the Convention available to grant the applicant appropriate relief as regards his substantive complaint (see, among other authorities, G.H.H. and Others v. Turkey, no. 43258/98, § 34, ECHR 2000-VIII). The “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant ( Čonka v. Belgium, no. 51564/99, § 75, ECHR 2002 I; and Onoufriou v. Cyprus, no. 24407/04, §§ 119-121, 7 January 2010). 157. The Court further points out that the scope of the State’s obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Given the irreversible nature of the harm that might occur if the alleged risk of torture or ill-treatment materialised and the importance which the Court attaches to Article 3, the notion of an effective remedy under Article 13 requires (i) independent and rigorous scrutiny of a claim that there exist substantial grounds for believing that there was a real risk of treatment contrary to Article 3 in the event of the applicant’s expulsion to the country of destination, and (ii) the provision of an effective possibility of suspending the enforcement of measures whose effects are potentially irreversible (see Shamayev and Others, cited above, § 460; Olaechea Cahuas v. Spain, no. 24668/03, § 35, ECHR 2006-X; and Salah Sheekh v. the Netherlands, no. 1948/04, § 154, ECHR 2007 I). 158. Judicial review proceedings constitute, in principle, an effective remedy within the meaning of Article 13 of the Convention in relation to complaints in the context of expulsion, provided that the courts can effectively review the legality of executive discretion on substantive and procedural grounds and quash decisions as appropriate (see Slivenko v. Latvia (dec.) [GC], no. 48321/99, § 99, ECHR 2002-II).” 216. Although the Court found there would have been a violation of Article 3 if the applicant were to be expelled to Libya, it found no violation of Article 13. The Netherlands Government Minister’s decisions to reject the applicant’s asylum request and impose an exclusion order had been reviewed by a court on appeal, and the applicant had not been hindered in challenging those decisions. The disclosure of an intelligence report to a judge in the case had not compromised the independence of the domestic courts in the proceedings and it could not be said that the courts had given less rigorous scrutiny to the applicant’s Article 3 claim. The report itself had not concerned the applicant’s fear of being subjected to ill-treatment in Libya but whether he posed a threat to the Netherlands national security (paragraphs 159 and 160 of the judgment). 217. The same approach was taken in C.G. and Others v. Bulgaria, no. 1365/07, § 57, 24 April 2008 and Kaushal and Others v. Bulgaria, no. 1537/08, § 36, 2 September 2010, both of which concerned expulsion on grounds of national security. In each case, the applicant alleged the domestic courts had not subjected the executive’s assertion that he presented a national security risk to meaningful scrutiny. The Court, in finding a violation of Article 13 in each case, found: “If an expulsion has been ordered by reference to national security considerations, certain procedural restrictions may be needed to ensure that no leakage detrimental to national security occurs, and any independent appeals authority may have to afford a wide margin of appreciation to the executive. However, these limitations can by no means justify doing away with remedies altogether whenever the executive has chosen to invoke the term ‘national security’. Even where an allegation of a threat to national security has been made, the guarantee of an effective remedy requires as a minimum that the competent appeals authority be informed of the reasons grounding the expulsion decision, even if such reasons are not publicly available. The authority must be competent to reject the executive’s assertion that there is a threat to national security where it finds it arbitrary or unreasonable. There must be some form of adversarial proceedings, if need be through a special representative following security clearance.” 218. The Court finds that the approach taken in A. v. the Netherlands, C.G. and Others and Kaushal and Others, all cited above, must apply in the present case and, for the following reasons, it considers that there has been no violation of Article 13. 219. First, the Court does not consider there is any support in these cases (or elsewhere in its case-law) for the applicant’s submission that there is an enhanced requirement for transparency and procedural fairness where assurances are being relied upon; as in all Article 3 cases, independent and rigorous scrutiny is what is required. Furthermore, as C.G. and Others and Kaushal and Others make clear, Article 13 of the Convention cannot be interpreted as placing an absolute bar on domestic courts receiving closed evidence, provided the applicant’s interests are protected at all times before those courts. 220. Second, the Court has previously found that SIAC is a fully independent court (see A and Others v. the United Kingdom, cited above, § 219). In the present case, just as in any appeal it hears, SIAC was fully informed of the Secretary of State’s national security case against the applicant. It would have been able to quash the deportation order it had been satisfied that the Secretary of State’s case had not been made out. As it was, SIAC found that case to be “well proved”. The reasons for that conclusion are set out at length in its open determination. 221. Third, while Parliament may not originally have intended for SIAC to consider closed evidence on safety or return, there is no doubt that, as a matter of domestic law, it can do so, provided the closed evidence is disclosed to the special advocates. Moreover, as the Government have observed, SIAC is empowered to conduct a full merits review as to safety of a deportee on return and to quash the deportation order if it considers there is a real risk of ill-treatment. 222. Fourth, the Court notes that both the applicant and the third party interveners have submitted that involvement of special advocates in SIAC appeals is not sufficient for SIAC to meet the requirements of Article 13. The Court is not persuaded that this is the case. In A and Others v. the United Kingdom, cited above, the Grand Chamber considered the operation of the special advocate system in the context of appeals to SIAC against the Secretary of State’s decision to detain individuals whom she suspected of terrorism and whom she believed to be a risk to national security. The Grand Chamber considered that, in such appeals, the special advocate could not perform his or her function in any useful way unless the detainee was provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate (paragraph 220 of the judgment). It was therefore necessary to consider, in each case, whether the nature of the open evidence against each applicant meant he was in a position effectively to challenge the allegations against him (paragraphs 221-224). 223. There is, however, a critical difference between those appeals and the present case. In A and Others v. the United Kingdom, cited above, the applicants were detained on the basis of allegations made against them by the Secretary of State. In the present case, at least insofar as the issue of the risk of ill-treatment in Jordan was concerned, no case was made against the applicant before SIAC. Instead, he was advancing a claim that there would be a real risk of ill-treatment if he were deported to Jordan. In the Court’s view, there is no evidence that, by receiving closed evidence on that issue, SIAC, assisted by the special advocates, failed to give rigorous scrutiny to the applicant’s claim. Nor is the Court persuaded that, by relying on closed evidence, SIAC ran an unacceptable risk of an incorrect result: to the extent that there was such a risk, it was mitigated by the presence of the special advocates. 224. Finally, the Court accepts that one of the difficulties of the non ‑ disclosure of evidence is that one can never know for certain what difference disclosure might have made. However, it considers that such a difficulty did not arise in this case. Even assuming that closed evidence was heard as to the United States’ interest in him, the GID’s commitment to respecting the assurances and the Foreign and Commonwealth Office’s negotiation of the MOU, the Court considers that these issues are of a very general nature. There is no reason to suppose that, had the applicant seen this closed evidence, he would have been able to challenge the evidence in a manner that the special advocates could not. 225. For these reasons, the Court considers that, in respect of the applicant’s Article 13 complaint, SIAC’s procedures satisfied the requirements of Article 13 of the Convention. There has accordingly been no violation of this provision. IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 226. Under Article 5 of the Convention, the applicant complained first, that, if deported, he would be at real risk of a flagrant denial of his right to liberty as guaranteed by that Article due to the possibility under Jordanian law of incommunicado detention for up to 50 days. Second, also under Article 5, he alleged that he would be denied legal assistance during any such detention. Finally, he alleged that, if convicted at his re-trial, any sentence of imprisonment would be a flagrant breach of Article 5 as it would have been imposed as a result of a flagrant breach of Article 6. Article 5, where relevant, provides as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. The parties’ submissions 1. The Government 227. The Government did not accept that Article 5 could be relied in an expulsion case (the Court had doubted that it could be in Tomic v. the United Kingdom (dec.), 17837/03, 14 October 2003). Even if it could, no issue arose in the present case because the applicant would not be detained for a lengthy period before being brought before a court. SIAC had found that it was likely he would be brought before a “judicial authority” within 48 hours, even if this were only a prosecutor with judicial status. The report of Mr Al-Khalili and Mr Najdawi confirmed that the Public Prosecutor was a judicial officer; they had also reported that the 48 hour period in which the police had to notify the legal authorities of any arrest had been reduced to 24 hours (see paragraphs 95 and 96 above). SIAC had also found that extensions of detention up to fifty days were unlikely to be sought (see paragraph 41 above). Both of SIAC’s findings had been upheld by the Court of Appeal and the House of Lords. In the House of Lords, Lord Phillips had also found that 50 days’ detention fell far short of a flagrant breach of Article 5 (see paragraph 58 above) and, although they did not accept that detention for fifty days was likely, the Government relied upon his conclusion. 228. The Government also stated that the assurance in the MOU that the applicant would be brought promptly before a judge applied not only to any detention prior to re-trial for the offences for which he had been convicted in absentia but to any other period of detention in Jordan. Finally, since they did not accept that the applicant’s retrial would be a flagrant denial of justice, the Government considered that no issue arose under Article 5 in respect of any sentence of imprisonment that might imposed upon the applicant. 2. The applicant 229. The applicant submitted that the evidence showed Islamist prisoners were routinely detained incommunicado for up to fifty days, at the order of the Public Prosecutor. Such a period far exceeded the time limits which had been set by the Court ( Brogan and Others v. the United Kingdom, 29 November 1988, §§ 61-62, Series A no. 145 ‑ B; Öcalan, cited above, § 103) and which were acceptable in international law (see paragraph 155 above). It was also contrary to this Court’s case-law and international law for a public prosecutor who had conduct of the investigation to be responsible for determining the legality of continued detention. This was even more so when the Public Prosecutor in Jordanian State Security cases was a military officer. Furthermore, as the MOU did not define what “promptly before a judge” meant, the applicant considered that the only basis for SIAC’s finding that he would be brought before a judicial authority within 48 hours was the evidence of the Foreign and Commonwealth Office witness originally responsible for the MOU, Mr Oakden. However, it was now apparent from the report of Mr Al-Khalili and Mr Najdawi that this evidence was based solely on the understanding that the applicant would be brought before the Public Prosecutor. B. Admissibility 230. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. C. Merits 1. Does Article 5 apply in an expulsion case? 231. The Court accepts that, in Tomic, cited above, it doubted whether Article 5 could be relied on in an expulsion case. However, it also recalls that in Babar Ahmad and Others, §§ 100-116, cited above, the applicants complained that if they were extradited to the United States of America and either designated as enemy combatants or subjected to rendition then there would be a real of risk of violations of Articles 3, 5 and 6 of the Convention. The United States Government had given assurances that the applicants would not be so designated and would be tried before federal courts. Before both the domestic courts and this Court, the applicants’ complaints were examined on the premise that they met the criteria for designation as enemy combatants and that, if such a designation were made, there would be a real risk of a violation of Articles 3, 5 and 6 of the Convention. Ultimately, the complaints were rejected as manifestly ill ‑ founded because the assurances given by the United States were sufficient to remove any real risk of designation or rendition. Equally, the Court recalls that, while examining the applicant’s Article 6 complaint in Al-Moayad, cited above, § 101, it found that: “A flagrant denial of a fair trial, and thereby a denial of justice, undoubtedly occurs where a person is detained because of suspicions that he has been planning or has committed a criminal offence without having any access to an independent and impartial tribunal to have the legality of his or her detention reviewed and, if the suspicions do not prove to be well-founded, to obtain release (references omitted).” Given that this observation was made in the context of the applicant’s complaint that he would be detained without trial at Guantánamo Bay, the Court finds that these observations must apply with even greater force to Article 5 of the Convention. 232. The Court also considers that it would be illogical if an applicant who faced imprisonment in a receiving State after a flagrantly unfair trial could rely on Article 6 to prevent his expulsion to that State but an applicant who faced imprisonment without any trial whatsoever could not rely on Article 5 to prevent his expulsion. Equally, there may well be a situation where an applicant has already been convicted in the receiving State after a flagrantly unfair trial and is to be extradited to that State to serve a sentence of imprisonment. If there were no possibility of those criminal proceedings being reopened on his return, he could not rely on Article 6 because he would not be at risk of a further flagrant denial of justice. It would be unreasonable if that applicant could not then rely on Article 5 to prevent his extradition (see, mutatis mutandis, Stoichkov v. Bulgaria, no. 9808/02, §§ 51-56, 24 March 2005; Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 461-464, ECHR 2004 ‑ VII). 233. The Court therefore considers that, despite the doubts it expressed in Tomic, it is possible for Article 5 to apply in an expulsion case. Hence, the Court considers that a Contracting State would be in violation of Article 5 if it removed an applicant to a State where he or she was at real risk of a flagrant breach of that Article. However, as with Article 6, a high threshold must apply. A flagrant breach of Article 5 would occur only if, for example, the receiving State arbitrarily detained an applicant for many years without any intention of bringing him or her to trial. A flagrant breach of Article 5 might also occur if an applicant would be at risk of being imprisoned for a substantial period in the receiving State, having previously been convicted after a flagrantly unfair trial. 2. Would there be a flagrant breach of Article 5 in this case? 234. The Court finds that the applicant’s second and third complaints under this Article (lack of legal assistance and possible detention after a flagrantly unfair trial) are more appropriately examined under Article 6. Consequently, it is only necessary for it to examine his first complaint (the possibility of incommunicado detention for up to fifty days) under Article 5. 235. Applying the principles it has set out in paragraph 233 above, the Court finds that there would be no real risk of a flagrant breach of Article 5 in respect of the applicant’s pre-trial detention in Jordan. The Court has serious doubts as to whether a Public Prosecutor, a GID officer who is directly responsible for the prosecution, and whose offices are in the GID’s building, could properly be considered to be “judge or other officer authorised by law to exercise judicial power” (see, for instance, Medvedyev and Others v. France [GC], no. 3394/03, § 124, ECHR 2010 ‑ ...; and Kulomin v. Hungary cited at paragraph 155 above). Accordingly, little weight can be attached to the fact that, pursuant to the amendments to the Jordanian Code of Criminal Procedure, the applicant would be brought before the Public Prosecutor within twenty-four hours (see Mr Al-Khalila and Mr Najdawi’s report at paragraph 96 above). However, Jordan clearly intends to bring the applicant to trial and must do so within fifty days’ of his being detained. The Court agrees with Lord Phillips that fifty days’ detention falls far short of the length of detention required for a flagrant breach of Article 5 and, consequently, there would be no violation of this Article if the applicant were deported to Jordan. V. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 236. Under Article 6 of the Convention, the applicant further complained he would be at real risk of a flagrant denial of justice if retried in Jordan for either of the offences for which he has been convicted in absentia. Article 6, where relevant, provides as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.” A. The parties’ submissions 1. Government 237. The Government submitted that the Court should adopt the House of Lords’ approach and find that Article 6 would only be engaged in the extraterritorial context when an unfair trial in the receiving State would have serious consequences for the applicant. They accepted, however, that in the present case there would be serious consequences for the applicant if convicted and therefore accepted that the “flagrant denial of justice” test applied. 238. The Government further submitted that “flagrant denial” had to be interpreted to mean a breach “so fundamental to amount to a nullification, or destruction of the very essence, of the right guaranteed” (see the dissenting opinion in Mamatkulov and Askarov, cited above). In the Government’s submission, this was a stringent test, which would only be satisfied in very exceptional cases. Moreover, substantial reasons were required for showing that a flagrant denial of justice would occur. 239. The Government adopted the reasoning of SIAC and the House of Lords that the flagrant denial of justice test had not been met in the present case. They accepted that there was a lack of structural independence in the State Security Court but that was remedied by appeal to the Court of Cassation. There was nothing in principle or in the Court’s case-law that a court’s lack of structural independence automatically meant there would a flagrant denial of justice; an assessment was always needed of the extent of any unfairness and that could only be done on a wider basis than looking simply at a lack of structural independence. Accordingly, little weight should be attached to international criticism of the State Security Court or international materials on the trial of civilians by military courts. 240. The same was true for a lack of legal assistance pre-trial: Article 6 conferred no absolute right to have such assistance. It was clear from the findings of SIAC that the Jordanian authorities proceed with caution in the applicant’s case and would be acutely aware that the applicant’s retrial would be closely monitored. For instance, the Jordanian courts were unlikely to rely on anything the applicant had said during GID questioning that was not repeated before the Public Prosecutor; Jordanian law only permitted the absence of a lawyer before the Public Prosecutor for good reason (see the report of Mr Al-Khalila and Mr Najdawi at paragraph 97 above). 241. The Government accepted that the admission of evidence obtained by torture of the defendant would render that defendant’s trial unfair. However, the same proposition did not apply to evidence obtained by ill ‑ treatment that did not amount to torture: even in a “domestic” context a distinction had been drawn by the Court between unfairness as a result of evidence obtained by torture and evidence obtained by other forms of ill ‑ treatment. When ill-treatment did not reach the threshold of torture, there was a discretion as to whether the evidence obtained by that ill-treatment could be used at trial ( Jalloh v. Germany [GC], no. 54810/00, §§ 99, 106 ‑ 107, ECHR 2006 ‑ IX). Moreover, in distinguishing between torture and other forms of ill-treatment, the Court applied the high standard set out in Article 1 of UNCAT (see paragraph 125 above). In the present case, SIAC had not found that the evidence against the applicant had been obtained by torture, but only that there was a real risk that it had been obtained by ill ‑ treatment contrary to Article 3. Accordingly, there was no basis for concluding that the use of that evidence would automatically be a flagrant denial of justice. 242. The Government also submitted that a high standard of proof should apply when, in the extra-territorial context, the applicant alleged that evidence obtained by torture or ill-treatment would be used at a trial in the receiving State. The Government observed that the United Kingdom courts would admit evidence where there is a real risk that it has been obtained by torture, provided that it was not established on the balance of probabilities that it has been so obtained (the House of Lords’ judgment in A and others (no. 2 ) see paragraphs 136 and 137 above). Given, therefore, that the evidence in the present case could be lawfully and fairly admitted in the United Kingdom, it would be illogical that deportation from the United Kingdom could be prevented on those grounds. The Government therefore submitted a real risk that the evidence had been obtained by torture or other ill-treatment did not suffice. Instead, a flagrant denial of justice could not arise unless it was established on a balance of probabilities or beyond reasonable doubt that evidence had been obtained by torture. This standard of proof was consistent with the standard applied by the Court in “domestic” Article 3 and Article 6 cases; with Article 15 of UNCAT; and with re: El Motassadeq, the judgment of the Düsseldorf Court of Appeal, Singh, and Mahjoub (see, respectively, paragraphs 129, 133, 135, 139 and 140, and 153 above) The applicant had not so established in his case: the further evidence he relied on added nothing to the evidence which had been before SIAC and was, in any event, contradicted by Mr Al-Khalila and Mr Najdawi. Furthermore, Mamatkulov and Askarov, cited above, showed that general reports that torture evidence was routinely admitted in a receiving State was not sufficient to establish that a particular applicant would suffer a flagrant denial of justice. More direct evidence was required. 243. The Government considered that the applicant’s argument that there was a duty to investigate allegations of torture was not relevant: Jordan was not a Convention Contracting State so there was no positive obligation on Jordan to investigate breaches of Article 3 of the Convention. Similarly, although it was difficult for a Jordanian defendant to show that a confession made to the Public Prosecutor was not voluntary (because the burden of proof was on him and not the Prosecutor), SIAC had found it was acceptable for Jordanian law to proceed this way. It had also found that a Jordanian court’s decision which applied that burden of proof would not be manifestly unreasonable or arbitrary and thus no flagrant denial of justice would arise. 244. Finally, the Government submitted that no special test should apply to evidence obtained by torture or other ill-treatment of third parties than to any other factor which may render a trial unfair. Even if it did, when there was nothing more than a real risk that evidence had been obtained by ill ‑ treatment, the admission of that evidence at trial would not amount to a complete nullification of the right to a fair trial. 245. The Government therefore submitted that these three factors (lack of independence, lack of legal assistance and risk of admission of torture evidence), even taken cumulatively, would not amount to a flagrant denial of justice. 2. The applicant 246. Unlike the Government, the applicant did not regard the imposition of a long term of imprisonment as a prerequisite for a finding of a flagrant denial of justice, rather the risk of a long term of imprisonment was an aggravating feature of unfairness. 247. The applicant submitted that the flagrant denial of justice test is qualitative not quantitative. “Flagrant” meant “nullifies the very essence of the right” but did not require the right to be completely nullified. It also meant the unfairness had to be manifest and predictable. 248. The applicant submitted that a flagrant denial of justice would occur at his re-trial if the following factors were considered cumulatively: (i) that the State Security Court was a military court, aided by a military prosecutor; (ii) that he was a notorious civilian terrorist suspect; (iii) that the case against him was based decisively on confessions when there was a very real risk that those confessions had been obtained by torture or other ill ‑ treatment by military agents; and (iv) that the State Security Court would not investigate properly whether the confessions had been obtained by torture or ill-treatment. 249. In respect of the military composition of the State Security Court, the applicant relied first, on the Human Rights Committee’s condemnation of the practice of trying civilians before military courts (see paragraphs 157–159 above). Second, he relied on specific international criticism of Jordan’s State Security Court. This criticism centred on: the possibility of extended periods of incommunicado detention without judicial review (at the instance of the Public Prosecutor, a military officer); the State Security Court’s failure to investigate properly allegations of torture; and the court’s lack of independence and impartiality. The applicant also relied on the unfairness of Jordanian rules of evidence relating to confessions. Even on the evidence of Mr Al-Khalila and Mr Najdawi, it appeared that the Court of Cassation had taken the approach that, once a confession was repeated before the Public Prosecutor, it was for the defendant to prove that the Prosecutor was complicit in obtaining it involuntarily. If the defendant did not so prove, the confession was admissible regardless of any prior misconduct by the GID. 250. In this context, he submitted that the State Security Court in Jordan was even more open to question than the Turkish State Security Court considered in Ergin (no. 6), cited above. Both Al-Moayad, cited above and Drozd and Janousek v. France and Spain, 26 June 1992, Series A no. 240 suggested that trial by a military court would, in itself, amount to a flagrant breach of Article 6. 251. In respect of his complaint regarding the possible admission of evidence obtained by torture, the applicant relied on the further evidence he had obtained (summarised at paragraphs 102–105 above), which showed that: (i) the confessions of Al-Hamasher and Abu Hawsher were the predominant basis for his convictions at the original trials; and (ii) these men and some of the other defendants at each trial had been held incommunicado, without legal assistance and tortured. The applicant maintained that Ms Refahi’s evidence was correct: the use of a fingerprint on a statement was a clear sign of a false confession (see paragraph 104 above). A fingerprint was not simply, as Mr Al-Khalili and Mr Najdawi suggested, a sign that the maker of a statement was illiterate, least of all when, in Abu Hawsher’s case, the case against him was that he had been reading the applicant’s books. 252. The applicant also submitted that any possible distinction between torture and ill-treatment (either in international law or in the Convention) was immaterial for two reasons. First, his allegation was that Al-Hamasher and Abu Hamsher’s ill-treatment was so severe as to amount to torture. Second, there was a breach of Article 6 whenever ill-treatment was inflicted in order to secure a confession and it was clear that Al-Hamasher and Abu Hamsher had been ill-treated for that reason. 253. The use of torture evidence was a flagrant denial of justice. The prohibition on the use of torture evidence was, in the applicant’s submission, part of the established international machinery through which the ius cogens prohibition on torture was expressed. This prohibition was enshrined in Article 15 of UNCAT and the case-law of this Court. The exclusionary rule in Article 15 had to be read in conjunction with Article 12 of the UNCAT, which imposed a duty to investigate wherever there was reasonable ground to believe that an act of torture has been committed. It was clear from the reports of United Nations bodies and NGOs (summarised at paragraphs 106–124 above) that the Jordanian Public Prosecutor failed properly to investigate torture allegations and, indeed, had not done so when those allegations were made at the applicant’s in absentia trials. Therefore, while he accepted he had not demonstrated on the balance of probabilities that evidence was obtained in his case by torture, he had demonstrated beyond a reasonable doubt that Jordan would not investigate the allegations which had been made in his case. 254. It was incorrect for the Government to suggest that Jordanian law was consistent with English law as to the standard of proof to be applied; the English law will not admit evidence in criminal proceedings until the prosecution can prove that the evidence was not obtained by torture (see Mushtaq at paragraph 138 above). Moreover, the view of the majority of House of Lords in A and others (no. 2) (see paragraph 136 and 137 above) was premised on the assumption that, in the United Kingdom, an independent court, SIAC, would conscientiously investigate any allegations that evidence had been obtained by torture. This assumption did not hold true for the Jordanian State Security Court. Before the State Security Court, the burden of proof fell on the defendant to prove a confession had been obtained by torture. This was unfair because it was not accompanied by some of the most basic protections against ill-treatment such as recording of questioning, limited periods of detention and access to lawyers or doctors. 255. Consequently, for these reasons, it was unfair to expect him to prove either beyond a reasonable doubt or on the balance of probabilities that the key witnesses in his case had been tortured. 256. In respect of the conclusions of the domestic courts, the applicant submitted that the Court of Appeal had taken the correct approach by looking at the applicant’s case in the round and had correctly compared the real risk that the confessions had been obtained by torture against the “litany of lack of basic protections” in Jordanian criminal procedure. By contrast, the House of Lords had erred by focusing only on the risk that the evidence had been obtained by torture and had not done justice to the combination of procedural defects that the applicant relied upon. The House of Lords was not correct to rely on Mamatkulov and Askarov, cited above. The Grand Chamber’s assessment in that case was coloured by the Article 34 issue in the case, the material before it was not as specific and detailed as in his case, and there was not the same accumulation of factors as in his case. B. Admissibility 257. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. C. Merits 1. General principles a. The “flagrant denial of justice” test 258. It is established in the Court’s case-law that an issue might exceptionally be raised under Article 6 by an expulsion or extradition decision in circumstances where the fugitive had suffered or risked suffering a flagrant denial of justice in the requesting country. That principle was first set out in Soering v. the United Kingdom, 7 July 1989, § 113, Series A no. 161 and has been subsequently confirmed by the Court in a number of cases (see, inter alia, Mamatkulov and Askarov, cited above, §§ 90 and 91; Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 149, ECHR 2010 ‑ ...). 259. In the Court’s case-law, the term “flagrant denial of justice” has been synonymous with a trial which is manifestly contrary to the provisions of Article 6 or the principles embodied therein ( Sejdovic v. Italy [GC], no. 56581/00, § 84, ECHR 2006 ‑ II; Stoichkov, cited above, § 56, Drozd and Janousek cited above, § 110). Although it has not yet been required to define the term in more precise terms, the Court has nonetheless indicated that certain forms of unfairness could amount to a flagrant denial of justice. These have included: - conviction in absentia with no possibility subsequently to obtain a fresh determination of the merits of the charge ( Einhorn, cited above, § 33; Sejdovic, cited above, § 84; Stoichkov, cited above, § 56); - a trial which is summary in nature and conducted with a total disregard for the rights of the defence ( Bader and Kanbor, cited above, § 47); - detention without any access to an independent and impartial tribunal to have the legality the detention reviewed ( Al-Moayad, cited above, § 101); - deliberate and systematic refusal of access to a lawyer, especially for an individual detained in a foreign country (ibid.). 260. It is noteworthy that, in the twenty-two years since the Soering judgment, the Court has never found that an expulsion would be in violation of Article 6. This fact, when taken with the examples given in the preceding paragraph, serves to underline the Court’s view that “flagrant denial of justice” is a stringent test of unfairness. A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the Contracting State itself. What is required is a breach of the principles of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article. 261. In assessing whether this test has been met, the Court considers that the same standard and burden of proof should apply as in Article 3 expulsion cases. Therefore, it is for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if he is removed from a Contracting State, he would be exposed to a real risk of being subjected to a flagrant denial of justice. Where such evidence is adduced, it is for the Government to dispel any doubts about it (see, mutatis mutandis, Saadi v. Italy, cited above § 129). 262. Finally, given the facts of the present case, the Court does not consider it necessary to determine whether a flagrant denial of justice only arises when the trial in question would have serious consequences for the applicant. It is common ground in the present case that the sentences which have already been passed on the applicant in absentia, and to which he would be exposed on any retrial, are substantial terms of imprisonment. b. Does the admission of evidence obtained by torture amount to a flagrant denial of justice? 263. The Court agrees with the Court of Appeal that the central issue in the present case is the real risk that evidence obtained by torture of third persons will be admitted at the applicant’s retrial. Accordingly, it is appropriate to consider at the outset whether the use at trial of evidence obtained by torture would amount to a flagrant denial of justice. In common with the Court of Appeal (see paragraph 51 above), the Court considers that it would. 264. International law, like the common law before it, has declared its unequivocal opposition to the admission of torture evidence. There are powerful legal and moral reasons why it has done so. It is true, as Lord Phillips observed in the House of Lords’ judgment in the present case, that one of the reasons for the prohibition is that States must stand firm against torture by excluding the evidence it produces. Indeed, as the Court found in Jalloh, cited above, § 105, admitting evidence obtained by torture would only serve to legitimate indirectly the sort of morally reprehensible conduct which the authors of Article 3 of the Convention sought to proscribe. There are, however, further and equally compelling reasons for the exclusion of torture evidence. As Lord Bingham observed in A and others no. 2, § 52, torture evidence is excluded because it is “unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice.” The Court agrees with these reasons: it has already found that statements obtained in violation of Article 3 are intrinsically unreliable ( Söylemez v. Turkey, no. 46661/99, § 122, 21 September 2006). Indeed, experience has all too often shown that the victim of torture will say anything – true or not – as the shortest method of freeing himself from the torment of torture. More fundamentally, no legal system based upon the rule of law can countenance the admission of evidence – however reliable – which has been obtained by such a barbaric practice as torture. The trial process is a cornerstone of the rule of law. Torture evidence damages irreparably that process; it substitutes force for the rule of law and taints the reputation of any court that admits it. Torture evidence is excluded to protect the integrity of the trial process and, ultimately, the rule of law itself. 265. These reasons underscore the primacy given to the prohibition on torture evidence in the Convention system and international law. For the Convention system, in its recent judgment in Gäfgen v. Germany [GC], no. 22978/05, §§ 165-167, ECHR 2010 ‑ ..., the Court reiterated that particular considerations apply in respect of the use in criminal proceedings of evidence obtained in breach of Article 3. It observed: “The use of such evidence, secured as a result of a violation of one of the core and absolute rights guaranteed by the Convention, always raises serious issues as to the fairness of the proceedings, even if the admission of such evidence was not decisive in securing a conviction. Accordingly, the Court has found in respect of confessions, as such, that the admission of statements obtained as a result of torture or of other ill-treatment in breach of Article 3 as evidence to establish the relevant facts in criminal proceedings rendered the proceedings as a whole unfair. This finding applied irrespective of the probative value of the statements and irrespective of whether their use was decisive in securing the defendant’s conviction. As to the use at the trial of real evidence obtained as a direct result of ill-treatment in breach of Article 3, the Court has considered that incriminating real evidence obtained as a result of acts of violence, at least if those acts had to be characterised as torture, should never be relied on as proof of the victim’s guilt, irrespective of its probative value (references omitted)”. Gäfgen reflects the clear, constant and unequivocal position of this Court in respect of torture evidence. It confirms what the Court of Appeal in the present case had already appreciated: in the Convention system, the prohibition against the use of evidence obtained by torture is fundamental. Gäfgen also confirms the Court of Appeal’s view that there is a crucial difference between a breach of Article 6 because of the admission of torture evidence and breaches of Article 6 that are based simply on defects in the trial process or in the composition of the trial court (see paragraph 45–49 of the Court of Appeal’s judgment, quoted at paragraph 51 above). 266. Strong support for that view is found in international law. Few international norms relating to the right to a trial are more fundamental than the exclusion of evidence obtained by torture. There are few international treaties which command as widespread support as UNCAT. One hundred and forty-nine States are party to its provisions, including all Member States of the Council of Europe (see paragraph 125 above). UNCAT reflects the clear will of the international community to further entrench the ius cogens prohibition on torture by taking a series of measures to eradicate torture and remove all incentive for its practice. Foremost among UNCAT’s provisions is Article 15, which prohibits, in near absolute terms, the admission of torture evidence. It imposes a clear obligation on States. As the United Nations Committee Against Torture has made clear, Article 15 is broad in scope. It has been interpreted as applying to any proceedings, including, for instance, extradition proceedings ( P.E. v. France; G.K. v. Switzerland; and Irastorza Dorronsoro : see paragraphs 130 and 132 above). P.E. and G.K. also show that Article 15 applies to “any statement” which is established to have been made as a result of torture, not only those made by the accused (see also, in this respect Harutyunyan v. Armenia, no. 36549/03, § 59, ECHR 2007 ‑ VIII and Mthembu v. The State, case no. 379/2007, [2008] ZASCA 51, quoted in Gäfgen, cited above, § 74). Indeed, the only exception to the prohibition that Article 15 allows is in proceedings against a person accused of torture. 267. For the foregoing reasons, the Court considers that the admission of torture evidence is manifestly contrary, not just to the provisions of Article 6, but to the most basic international standards of a fair trial. It would make the whole trial not only immoral and illegal, but also entirely unreliable in its outcome. It would, therefore, be a flagrant denial of justice if such evidence were admitted in a criminal trial. The Court does not exclude that similar considerations may apply in respect of evidence obtained by other forms of ill-treatment which fall short of torture. However, on the facts of the present case (see paragraphs 269–271 below), it is not necessary to decide this question. 2. The applicant’s case 268. The applicant has alleged that his retrial would amount to a flagrant denial of justice because of a number of factors, including the absence of a lawyer during interrogation, his notoriety and the composition of the State Security Court (see paragraph 248 above). However, as the Court has observed, the central issue in the case is the admission of torture evidence. Accordingly, it will first examine this complaint. a. Evidence obtained by torture 269. The incriminating statements against the applicant were made by Al-Hamasher in the Reform and Challenge Trial and Abu Hawsher in the millennium conspiracy trial (see paragraphs 9 –20 above). SIAC found that there was at least a very real risk that these incriminating statements were obtained as a result of treatment by the GID which breached Article 3; it may or may not have amounted to torture (see paragraph 420 of its determination, quoted at paragraph 45 above). 270. It is unclear from its determination why SIAC felt unable to reach a clear conclusion as to whether the ill-treatment amounted to torture. The precise allegation made by Abu Hawsher is that he was beaten on the soles of his feet to the stage where the skin fell off every time he bathed (see paragraph 103 above). The scarring on Al-Hamasher is consistent with the same form of ill-treatment (see paragraph 102 above). The purposes of that ill-treatment, if it occurred, could only have been to obtain information or confessions from them. Moreover, beating on the soles of the feet, more commonly known as bastinado, falanga or falaka, is a practice which has been considered by the Court. Its infliction causes severe pain and suffering to the victim and, when its purpose has been to punish or to obtain a confession, the Court has had no hesitation in characterising it as torture (see, among many authorities, Salman v. Turkey [GC], no. 21986/93, §§ 114 and 115, ECHR 2000 ‑ VII; Valeriu and Nicolae Roşca v. Moldova, no. 41704/02, § 64, 20 October 2009 and further references therein; Diri v. Turkey, no. 68351/01, §§ 42–46, 31 July 2007; Mammadov v. Azerbaijan, no. 34445/04, §§ 68 and 69, 11 January 2007). Consequently, there is every reason to conclude that, if Abu Hawsher and Al-Hamasher were ill-treated in the way they allege, their ill-treatment amounted to torture. 271. This conclusion means the remaining two issues which the Court must consider are: (i) whether a real risk of the admission of torture evidence is sufficient; and (ii) if so, whether a flagrant denial of justice would arise in this case. i. Does a real risk of the admission of torture evidence suffice? 272. In determining this question, the Court would begin by noting that the evidence before it that Abu Hawsher and Al-Hamasher were tortured is even more compelling than at the time of SIAC’s determination. The report of Mr Al-Khalili and Mr Najdawi is, for the most part, balanced and objective. It frankly assesses the strengths and weaknesses of the Jordanian State Security Court system and recognises the GID’s attempts to extract confessions from suspects. However, the main weakness in the report is that its authors do not examine for themselves the allegations of torture which were made by the applicant’s co-defendants; the report merely records the conclusions of the State Security Court at each trial that the co-defendants were not tortured. Ms Refahi, on the other hand, travelled twice to Jordan to interview the lawyers and defendants at the original trials. Her two statements give detailed accounts of her interviews and record, in clear and specific terms, the allegations of torture made by the defendants. There is every reason to prefer her evidence on this point to the more generalised conclusions of Mr Al-Khalili and Mr Najdawi. Furthermore, in the millennium conspiracy trial, some corroboration for Abu Hawsher’s allegations must be found in Amnesty International’s report of 2006 which sets out its findings that four of the defendants, including Abu Hawsher were tortured. The allegations of ill-treatment of one co-defendant, Ra ‑ ed Hijazi are particularly convincing, not least because several witnesses were reported to have seen him propped up by two guards at the crime scene reconstruction and, as recorded in Ms Peirce’s statement, his treatment appears to have been the subject of a diplomatic protest by the United States (see paragraphs 103 and 114 above). Finally, some reliance must be placed on the fact that torture is widespread and routine in Jordan. If anything, it was worse when the applicant’s co-defendants were detained and interrogated. The systemic nature of torture by the GID (both then and now) can only provide further corroboration for the specific and detailed allegations which were made by Abu Hawsher and Al-Hamasher. 273. However, even accepting that there is still only a real risk that the evidence against the applicant was obtained by torture, for the following reasons, the Court considers it would be unfair to impose any higher burden of proof on him. 274. First, the Court does not consider that the balance of probabilities test, as applied by the majority of the House of Lords in A. and Others (no. 2), is appropriate in this context. That case concerned proceedings before SIAC to determine whether the Secretary of State’s suspicions that an individual was involved in terrorism were correct. Those proceedings were very different from criminal proceedings where, as in the present case, a defendant might face a very long sentence of imprisonment if convicted. In any event, the majority of the House of Lords in A and others (no. 2) found that the balance of probabilities test was for SIAC itself to apply: an appellant before SIAC had only to raise a plausible reason that evidence might have been obtained by torture. Therefore, the Court does not regard A and others (no. 2) as authority for the general proposition that, subject to a balance of probabilities test, evidence alleged to have been obtained by torture would be admissible in legal proceedings in the United Kingdom, least of all in criminal proceedings (see, section 76(2) of the Police and Criminal Evidence Act 1984 and R. v Mushtaq, paragraph 138 above). 275. Second, the Court does not consider that the Canadian and German case-law, which has been submitted by the Government (see paragraphs 133, 135, 139 and 140, and 153 above), provides any support for their position. In Singh, the parties agreed that the allegations had to be proved on a balance of probabilities; the standard of proof was not the subject of argument in that case. Mahjoub, a national security case involving material not disclosed to the appellant, followed the approach taken by the House of Lords in A and others (no. 2), an approach which the Court has found to be inappropriate in the present case. In re El Motassadeq, the Hamburg Court of Appeal was only able to consider reports of a general nature alleging the United States authorities had tortured terrorist suspects and, in any event, drew “neither incriminating nor exonerating conclusions” from evidence in question (see El Motassadeq v. Germany, cited above). In addition, it does not appear that the issue of the standard of proof which was applied by the Hamburg Court of Appeal was pursued on appeal to the Federal Court of Justice or Constitutional Court and it did not form part of El Motassadeq’s complaints to this Court. Finally, it is clear from the Düsseldorf Court of Appeal’s reasoning that it did not apply a balance of probabilities test to the requested person’s allegations. Instead, it sufficed that there was a real risk ( konkrete Gefahr ) that Turkey would not respect Article 15 of UNCAT; that there was reasonable evidence ( begründete Anhaltspunkte ) that the statements made by the co-defendants had been obtained by torture; and that there was a risk, substantiated by concrete evidence ( durch konkrete Indizien belegte Gefahr ), that the statements taken from the co-accused might be used in proceedings against the requested person in Turkey. 276. Third, and most importantly, due regard must be had to the special difficulties in proving allegations of torture. Torture is uniquely evil both for its barbarity and its corrupting effect on the criminal process. It is practiced in secret, often by experienced interrogators who are skilled at ensuring that it leaves no visible signs on the victim. All too frequently, those who are charged with ensuring that torture does not occur – courts, prosecutors and medical personnel – are complicit in its concealment. In a criminal justice system where the courts are independent of the executive, where cases are prosecuted impartially, and where allegations of torture are conscientiously investigated, one might conceivably require a defendant to prove to a high standard that the evidence against him had been obtained by torture. However, in a criminal justice system which is complicit in the very practices which it exists to prevent, such a standard of proof is wholly inappropriate. 277. The Jordanian State Security Court system is a case in point. Not only is torture widespread in Jordan, so too is the use of torture evidence by its courts. In its conclusions on Article 15 of UNCAT, the Committee Against Torture expressed its concern at reports that the use of forced confessions in courts was widespread (see paragraph 107 above). The Special Rapporteur has described a system where the “presumption of innocence is illusory” and “primacy is placed on obtaining confessions” (see paragraph 110 above). The reports of Amnesty International and Human Rights Watch support this view. Amnesty International has considered the State Security Court to be “largely supine” in the face of torture allegations, despite, in the ten years prior to 2005, one hundred defendants alleging before the State Security Court that they had been tortured into making confessions and similar allegations being made in fourteen such cases in 2005 alone (see paragraph 113 above). Human Rights Watch’s 2006 Report depicts a system in which detainees are shuttled back and forth between GID officials and the Public Prosecutor until confessions are obtained in an acceptable form (see paragraph 116 above). Finally, the NCHR has, in successive reports, expressed its own concerns about the manner in which statements obtained by coercion become evidence in Jordanian courts (see paragraphs 121 and 122 above). 278. The Court recognises that Jordanian law provides a number of guarantees to defendants in State Security Court cases. The use of evidence obtained by torture is prohibited. The burden is on the prosecution to establish that confessions made to the GID have not been procured by the use of torture and it is only in relation to confessions made before the Public Prosecutor that the burden of proof of torture is imposed on the defendant. However, in the light of the evidence summarised in the preceding paragraph, the Court is unconvinced that these legal guarantees have any real practical value. For instance, if a defendant fails to prove that the prosecution was implicated in obtaining an involuntary confession, that confession is admissible under Jordanian law regardless of any prior acts of ill-treatment or other misconduct by the GID. This is a troubling distinction for Jordanian law to make, given the closeness of the Public Prosecutor and the GID. Furthermore, while the State Security Court may have the power to exclude evidence obtained by torture, it has shown little readiness to use that power. Instead, the thoroughness of investigations by the State Security Court into the allegations of torture is at best questionable. The lack of independence of the State Security Court assumes considerable importance in this respect. As SIAC observed (at paragraph 447 of its determination, quoted at paragraph 46 above) the background to the judges of the State Security Court: “[M]ay well make them sceptical about allegations of abuse by the GID affecting statements made to the Prosecutor. They may instinctively share the view that allegations of ill-treatment are a routine part of a defence case to excuse the incrimination of others. The legal framework is poorly geared to detecting and acting upon allegations of abuse. The way in which it approaches the admission of evidence, on the material we have, shows no careful scrutiny of potentially tainted evidence.” 279. Thus, while, on any retrial of the applicant, it would undoubtedly be open to him to challenge the admissibility of Abu Hawsher and Al ‑ Hamasher’s statements and to call evidence to support this, the difficulties confronting him in trying to do so many years after the event and before the same court which has already rejected such a claim (and routinely rejects all such claims) are very substantial indeed. 280. Therefore, the Court considers that, given the absence of clear evidence of a proper and effective examination of Abu Hawsher and Al ‑ Hamasher’s allegations by the State Security Court, the applicant has discharged the burden that could be fairly imposed on him of establishing the evidence against him was obtained by torture. ii. Would there be a flagrant denial of justice in this case? 281. SIAC found that there was a high probability that Abu Hawsher and Al-Hamasher’s evidence incriminating the applicant would be admitted at the retrial and that this evidence would be of considerable, perhaps decisive, importance against him (see paragraph 45 above). The Court agrees with these conclusions. 282. The Court has found that a flagrant denial of justice will arise when evidence obtained by torture is admitted in criminal proceedings. The applicant has demonstrated that there is a real risk that Abu Hawsher and Al-Hamasher were tortured into providing evidence against him and the Court has found that no higher burden of proof can fairly be imposed upon him. Having regard to these conclusions, the Court, in agreement with the Court of Appeal, finds that there is a real risk that the applicant’s retrial would amount to a flagrant denial of justice. 283. The Court would add that it is conscious that the Grand Chamber did not find that the test had been met in Mamatkulov and Askarov, a factor which was of some importance to the House of Lords’ conclusion that there would be no flagrant breach in the present case. 284. However, as the applicant has submitted, the focus of the Grand Chamber’s judgment in the Mamatkulov and Askarov case was on the binding effect of Rule 39 indications rather than on the substantive issues raised in that case under Article 6. Second, the complaint made by the applicants in that case of a violation of Article 6 was of a general and unspecific nature, the applicants alleging that at the time of their extradition they had no prospect of receiving a fair trial in Uzbekistan. Third, the Court found that, though in the light of the information available at the time of the applicants’ extradition, there may have been reasons for doubting that they would receive a fair trial in Uzbekistan, there was not sufficient evidence to show that any irregularities in the trial were liable to constitute a flagrant denial of justice; the fact that Court had been prevented from obtaining additional information to assist it in its assessment of whether there was such a real risk by Turkey ‘s failure to comply with Rule 39 was seen by the Court as a matter to be examined with respect to the complaint under Article 34 of the Convention. 285. In the present case, the situation is different. Extensive evidence was presented by the parties in respect of the applicant’s re-trial in Jordan and thoroughly examined by the domestic courts. Moreover, in the course of the proceedings before this Court, the applicant has presented further concrete and compelling evidence that his co-defendants were tortured into providing the case against him. He has also shown that the Jordanian State Security Court has proved itself to be incapable of properly investigating allegations of torture and excluding torture evidence, as Article 15 of UNCAT requires it to do. His is not the general and unspecific complaint that was made in Mamatkulov and Askarov; instead, it is a sustained and well-founded attack on a State Security Court system that will try him in breach of one of the most fundamental norms of international criminal justice, the prohibition on the use of evidence obtained by torture. In those circumstances, and contrary to the applicants in Mamatkulov and Askarov, the present applicant has met the burden of proof required to demonstrate a real risk of a flagrant denial of justice if he were deported to Jordan. b. The applicant’s remaining Article 6 complaints 286. The Court considers that the foregoing conclusion makes it unnecessary (save as above) to examine the applicant’s complaints relating to the absence of a lawyer in interrogation, the prejudicial consequences of his notoriety, the composition of the State Security Court, and the aggravating nature of the length of sentence he would face if convicted. c. Overall conclusion on Article 6 287. The Court finds that the applicant’s deportation to Jordan would be in violation of Article 6 of the Convention. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 288. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 289. The applicant did not submit a claim for just satisfaction. VII. RULE 39 OF THE RULES OF COURT 290. The Court recalls that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if referral of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention. 291. It considers that the indications made to the Government under Rule 39 of the Rules of Court (see paragraph 4 above) must continue in force until the present judgment becomes final or until the Panel of the Grand Chamber of the Court accepts any request by one or both of the parties to refer the case to the Grand Chamber under Article 43 of the Convention. | The Court indicated to the Government of the United Kingdom, under Rule 39 of its Rules of Court, an interim measure to prevent the applicant’s expulsion until it had examined his application. In its judgment on the merits, the Court for the first time reached the conclusion that an expulsion would entail a violation of Article 6 of the Convention. That finding reflected the international consensus that the admission of evidence obtained by torture was incompatible with the right to a fair trial. |
741 | Noise pollution | II. RELEVANT DOMESTIC LAW 41. Under domestic law inactivity on the part of authorities is open to challenge. Firstly, a party to administrative proceedings can make a complaint to a hierarchically higher authority under Article 37 § 1 of the Code of Administrative Procedure in order to urge the relevant authority to issue a decision within the time ‑ limits fixed in that Code. 42. If unsatisfied with the outcome of the proceedings initiated by a complaint under Article 37 of the Code of Administrative Procedure, up to 1 January 2004 a party could have lodged a complaint about inactivity on the part of the administrative authorities with the Supreme Administrative Court under Article 17 of the Act of 1995 on the Supreme Administrative Court. This provision was repealed with effect from 1 January 200 4. 43. On 1 January 2004 the 1995 Act was replaced by the Act on Proceedings before Administrative Courts of 30 August 2002, which provides for similar remedies. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 44. The applicant complained that the State had failed to protect her home from nuisance arising from the operation of the workshop run by her neighbour. She relied on Article 8 of the Convention which, in so far as relevant, provides as follows: “1. Everyone has the right to respect for his ... home ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 45. The Government argued that the applicant had failed to exhaust the available domestic remedies. She should have lodged a claim with a civil court, referring to Article 144 in conjunction with Article 222 § 2 of the Civil Code of 1964. They were of the view that if there had been any disturbances affecting the applicant ’ s right to respect for her home, such as noise pollution, she should have addressed herself to a civil court in order to seek protection for her rights. They referred to the case-law of the Supreme Court which had held that the protection under Article 144 of the Code encompassed not only the owner ’ s obligation to abstain from direct interferences with the neighbouring property, but also from acts which could negatively affect persons living on it (III CZP 89/74). She should also have had recourse to the provisions of the Civil Code governing liability in tort. The administrative authorities had not been under any obligation to act in the applicant ’ s case. 46. The applicant disagreed. She submitted that the authorities had been obliged to take positive measures to protect her against interferences with her right to respect for home and referred to the Court ’ s findings in López Ostra v. Spain, judgment of 9 December 1994, Series A no. 303 ‑ C and McMichael v. the United Kingdom, judgment of 24 February 1995, Series A no. 307 ‑ B. In the circumstances of the case it was the task of the public administration to act as an arbiter and find, by way of taking necessary active steps provided for by law, the proper balance between the applicant ’ s interests and those of her neighbour, taking also into consideration the interests of the community. The authorities had failed to do so. In these circumstances, the applicant should not be obliged to have recourse to the available instruments of civil law. 47. The Court finds that it is not required to decide whether or not the applicant has exhausted domestic remedies, as the complaint is in any event inadmissible for the following reasons. 48. The Court has recognised in its case-law that the individual has a right to respect for his home, meaning not just the right to the actual physical area, but also to the quiet enjoyment of that area. Breaches of the right to respect for the home are not confined to concrete or physical breaches, such as unauthorised entry into a person ’ s home, but also include those that are not concrete or physical, such as noise, emissions, smells or other forms of interference. A serious breach may result in the breach of a person ’ s right to respect for his home if it prevents him from enjoying the amenities of his home (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 96, ECHR 2003-VIII). 49. Thus in Powell and Rayner v. the United Kingdom (judgment of 21 February 1990, Series A no. 172, p. 18, § 40) the Court declared Article 8 applicable because “[i]n each case, albeit to greatly differing degrees, the quality of the applicant ’ s private life and the scope for enjoying the amenities of his home ha[d] been adversely affected by the noise generated by aircraft using Heathrow Airport”. In López Ostra (cited above, pp. 54-55, § 51), which concerned pollution caused by the noise and odours generated by a waste-treatment plant, the Court stated that “severe environmental pollution may affect individuals ’ well ‑ being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health”. In Surugiu v. Romania (no. 48995/99, 20 April 2004), which concerned various acts of harassment by third parties who entered the applicant ’ s yard and dumped several cartloads of manure in front of the door and under the windows of the house, the Court found that the acts constituted repeated interference with the applicant ’ s right to respect for his home and that Article 8 of the Convention was applicable. 50. Article 8 may apply in environmental cases, whether the pollution is directly caused by the State or whether State responsibility arises from failure to regulate private-sector activities properly. Whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicant ’ s rights under paragraph 1 of Article 8 or in terms of an interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole (see Powell and Rayner, p. 18, § 41, and López Ostra, pp. 54-55, § 51, both cited above). 51. However, as demonstrated by the above-mentioned cases, in order to raise an issue under Article 8, the interference must directly affect the applicant ’ s home, family or private life and the adverse effects of the environmental pollution must attain a certain minimum level of severity. The assessment of that minimum is relative and depends on all the circumstances of the case, such as the intensity and duration of the nuisance, and its physical or mental effects (see Fadeyeva v. Russia, no. 55723/00, §§ 68-69, ECHR 2005 ‑ IV and Fägerskiöld v. Sweden (dec.), no. 37664/04). 52. Turning to the present case, the Court accepts that the applicant and her family might have been affected by the operation of the workshop in her neighbour ’ s house. However, the Court must also establish whether it has been shown that this nuisance reached the minimum level of severity set by its case-law. 53. In this connection, the Court observes that in the course of the proceedings noise evaluation tests were carried out at an unspecified date before February 2003 and again in 2003. The Court is aware that the applicant criticised the procedure by which these tests had been carried out before the domestic authorities and that the administrative court accepted her arguments (see paragraphs 28, 31 and 32 above). In these circumstances it is not wholly implausible that the results of those tests were not fully reliable. However, the Court notes that the applicant has not submitted the results of those tests to the Court. Nor has she submitted, either in the domestic proceedings or in the proceedings before the Court, any alternative noise tests which would have allowed the noise levels in her house to be ascertained, and for it to be determined whether they exceeded the norms set either by domestic law or by applicable international environmental standards, or exceeded the environmental hazards inherent in life in every modern town (see, in this connection, Fadeyeva v. Russia, cited above, § 69 ). 54. The Court further observes that the applicant has not submitted, either to the national authorities or to the Court itself, any documents to show that her health or that of her family had been negatively affected by the noise emitted by the workshop. 55. In the absence of such findings it cannot be established that the State failed to take reasonable measures to secure the applicant ’ s rights under Article 8 of the Convention (compare and contrast the Court ’ s findings in noise pollution cases such as Moreno Gómez v. Spain, no. 4143/02, § § 59- 62, ECHR 2004 ‑ X; Ashworth and Others v. the United Kingdom, 20 January 2004 (dec.), no. 39561/98,). 56. Having regard to the above considerations and its case-law, the Court finds that it has not been established that the noise levels complained of in the present case were so serious as to reach the high threshold established in cases dealing with environmental issues. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 57. The applicant complained of a violation of her right to a hearing within a reasonable time. She relied on Article 6 § 1 of the Convention which, in so far as relevant, reads: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 58. The period to be taken into consideration began in September 1993 when the applicant requested that the lawfulness of the workshop ’ s operation be determined, and has not yet ended. It has thus lasted over fourteen years for three levels of jurisdiction. A. Admissibility 59. The Government submitted that the applicant had not exhausted remedies available under Polish law in respect of excessive length of administrative proceedings. They argued that the applicant had had the opportunity to lodge with the Polish civil courts a claim for compensation for damage caused by the excessive length of the administrative proceedings under Article 417 of the Civil Code. 60. The applicant argued that she should not be required to avail herself of the compensatory remedy relied on by the Government. 61. The Court has already found that the complaint under section 17 of the Supreme Administrative Court Act was a sufficient and effective remedy in cases in which an applicant complains about the excessive length of administrative proceedings (see Zynger v. Poland (dec.), no. 66096/01, 7 May 2002 and Bukowski v. Poland (dec.), no. 38665/97, 11 June 2002). The same applies to the analogous remedy introduced by sections 3 and 149 of the Law on Procedure before Administrative Courts. Having regard to the fact that the applicant has availed herself of these remedies by lodging relevant complaints with the administrative courts, the Court sees no ground on which to depart from its established case-law and to find that the applicant should also have availed herself of the compensatory remedy relied on by the Government (see Olszewska v. Poland, no. 13024/05, §§ 32 ‑ 37, 8 December 2007). 62. The Court concludes that, having availed herself of the remedy provided by administrative law, the applicant was not required to embark on another attempt to obtain redress by bringing a civil action for compensation. Accordingly, for the purposes of Article 35 § 1 of the Convention, the applicant has exhausted domestic remedies. The Government ’ s plea of inadmissibility on the ground of non ‑ exhaustion of domestic remedies must therefore be dismissed. 63. The Court concludes therefore that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. B. Merits 64. The Government refrained from making submissions on the merits of this complaint. 65. The applicant reiterated that the proceedings had lasted too long. She stressed that their excessive length and various unjustified delays had been repeatedly acknowledged by various domestic authorities, in particular by the administrative courts. 66. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 67. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above). 68. Having examined all the material submitted to it and in particular the findings of the domestic authorities that the proceedings were not conducted expeditiously, the Court has not found any grounds on which it could reach a different conclusion in the present case. 69. Having regard to its case ‑ law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 70. There has accordingly been a breach of Article 6 § 1. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 71. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 72. The applicant claimed 125, 00 0 Polish zlotys (PLN) in respect of pecuniary and non-pecuniary damage. The Government contested this claim. 73. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant 10, 0 00 euros (EUR) in respect of non ‑ pecuniary damage. B. Costs and expenses 74. The applicant also claimed PLN 3,800 for legal costs borne in the proceedings before the Court. She did not submit any documents in support of her claim. 75. The Government submitted that the applicant should obtain reimbursement of costs and expenses only in so far as it had been shown that these have been actually and necessarily incurred and are reasonable as to quantum. 76. According to the Court ’ s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court observes that the applicant failed to produce any documents in support of his claim. In those circumstances, the Court makes no award under this head (see Adamiak v. Poland, no. 20758/03, § 49, 19 December 2006). C. Default interest 77. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court declared inadmissible (manifestly ill-founded) the applicants’ complaint under Article 8 of the Convention, finding that it had not been established that the noise levels complained of were serious enough to reach the high threshold established in cases dealing with environmental issues. In particular, the applicant never submitted to the Court the results of noise tests which would have allowed the noise levels in her house to be ascertained and for it to be determined whether they exceeded the norms set either by domestic law or by applicable international environmental standards. She had, furthermore, failed to submit any documents to show that her health or that of her family had been negatively affected by the noise. In the absence of such findings it could not be established that the Polish authorities had failed to take reasonable measures to secure her rights under Article 8 of the Convention. In this case the Court further found a violation of the applicant’s right to a hearing within a reasonable time under Article 6 § 1 (right to a fair trial within a reasonable time) of the Convention. |
705 | Dissolution or prohibition of political parties or associations | II. RELEVANT DOMESTIC LAW A. The Constitution 45. The relevant provisions of the Constitution read as follows: Article 2 “The Republic of Turkey is a democratic, secular and social State based on the rule of law, respectful of human rights in a spirit of social peace, national solidarity and justice, adhering to the nationalism of Atatürk and resting on the fundamental principles set out in the Preamble.” Article 4 “No amendment may be made or proposed to the provisions of Article 1 of the Constitution providing that the State shall be a republic, the provisions of Article 2 concerning the characteristics of the Republic or the provisions of Article 3.” Article 6 “Sovereignty resides unconditionally and unreservedly in the nation. ... Sovereign power shall not under any circumstances be delegated to an individual, a group or a social class. ...” Article 10 § 1 “All individuals shall be equal before the law without any distinction based on language, race, colour, sex, political opinion, philosophical beliefs, religion, membership of a religious sect or other similar grounds.” Article 14 § 1 “None of the rights and freedoms referred to in the Constitution shall be exercised with a view to undermining the territorial integrity of the State and the unity of the nation, jeopardising the existence of the Turkish State or Republic, abolishing fundamental rights and freedoms, placing the control of the State in the hands of a single individual or group, ensuring the domination of one social class over other social classes, introducing discrimination on the grounds of language, race, religion or membership of a religious organisation, or establishing by any other means a State political system based on such concepts and opinions.” Article 24 § 4 “No one may exploit or abuse religion, religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social, economic, political or legal order of the State to be based on religious precepts, even if only in part, or for the purpose of securing political or personal interest or influence thereby.” Article 68 § 4 “The constitutions, rule books and activities of political parties shall not be incompatible with the independence of the State, the integrity of State territory and of the nation, human rights, the principles of equality and the rule of law, national sovereignty or the principles of a democratic, secular republic. No political party may be founded with the aim of advocating and establishing the domination of one social class or group, or a dictatorship in any form whatsoever. ...” Article 69 § 4 “... The Constitutional Court shall give a final ruling on the dissolution of political parties on an application by Principal State Counsel at the Court of Cassation.” Article 69 § 6 “... A political party may not be dissolved on account of activities contrary to the provisions of Article 68 § 4 unless the Constitutional Court has held that the political party concerned constitutes a centre of such activities.” This provision of the Constitution was added on 23 July 1995. Article 69 § 8 “... Members and leaders whose declarations and activities lead to the dissolution of a political party may not be founder members, leaders or auditors of another political party for a period of five years from the date on which the reasoned decision to dissolve the party is published in the Official Gazette ...” Article 84 “Forfeiture of the status of member Where the Council of the Presidency of the Grand National Assembly has validated the resignation of members of Parliament, the loss of their status as members shall be decided by the Grand National Assembly in plenary session. A convicted member of Parliament shall not forfeit the status of member until the court which convicted him has notified the plenary Assembly of the final judgment. A member of Parliament who continues to hold an office or carry on an activity incompatible with the status of member, within the meaning of Article 82, shall forfeit that status after a secret ballot of the plenary Assembly held in the light of the relevant committee’s report showing that the member concerned holds or carries on the office or activity in question. Where the Council of the Presidency of the Grand National Assembly notes that a member of Parliament, without valid authorisation or excuse, has failed, for a total of five days in one month, to take part in the work of the Assembly, that member shall forfeit the status of member where by majority vote the plenary Assembly so decides. The term of office of a member of Parliament whose words and deeds have, according to the Constitutional Court’s judgment, led to the dissolution of his party, shall end on the date when that judgment is published in the Official Gazette. The Presidency of the Grand National Assembly shall enforce that part of the judgment and inform the plenary Assembly accordingly.” B. Law no. 2820 on the regulation of political parties 46. The relevant provisions of Law no. 2820 read as follows: Section 78 “Political parties ... shall not aim or strive to or incite third parties to ... – jeopardise the existence of the Turkish State and Republic, abolish fundamental rights and freedoms, introduce discrimination on grounds of language, race, colour, religion or membership of a religious sect, or establish, by any means, a system of government based on any such notion or concept. ...” Section 90(1) “The constitution, programme and activities of political parties shall not contravene the Constitution or this Law.” Section 101 “The Constitutional Court shall dissolve a political party ... (b) where its general meeting, central office or executive committee ... takes a decision, issues a circular or makes a statement ... contrary to the provisions of Chapter 4 of this Law [This chapter (from section 78 to section 97), which concerns restrictions on the activities of political parties, provides, inter alia, that such activities may not be conducted to the detriment of the democratic constitutional order (including the sovereignty of the people and free elections), the nature of the nation State (including national independence, national unity and the principle of equality), and the secular nature of the State (including observance of the reforms carried out by Atatürk, the prohibition on exploiting religious feelings and the prohibition on religious demonstrations organised by political parties)], or where the chairman, vice-chairman or general secretary makes any written or oral statement contrary to those provisions. ... (d) Where acts contrary to the provisions of Chapter 4 of this Law have been committed by organs, authorities or councils other than those mentioned in sub-paragraph (b), State Counsel shall, within two years of the act concerned, require the party in writing to disband those organs and/or authorities and/or councils. State Counsel shall order the permanent exclusion from the party of those members who have been convicted for committing acts or making statements which contravene the provisions of Part 4. State counsel shall institute proceedings for the dissolution of any political party which fails to comply with the instructions in his letter within thirty days of its service. If, within thirty days of service of State Counsel’s application, the organs, authorities or councils concerned have been disbanded by the party, and the member or members in question have been permanently excluded, the dissolution proceedings shall lapse. If not, the Constitutional Court shall consider the case on the basis of the file and shall adjudicate after hearing, if necessary, the oral submissions of State Counsel, the representatives of the political party and all those capable of providing information about the case ...” Section 103 “Where it is found that a political party has become a centre of activities contrary to the provisions of sections 78 to 88 ... of the present Law, the party shall be dissolved by the Constitutional Court.” Section 107(1) “All the assets of political parties dissolved by order of the Constitutional Court shall be transferred to the Treasury.” 47. Paragraph 2 of section 103, which the Constitutional Court declared unconstitutional on 9 January 1998, prescribed the use of the procedure laid down in section 101(d) for determination of the question whether a political party had become a centre of anti-constitutional activities. C. Article 163 of the Criminal Code, repealed on 12 April 1991 48. This provision was worded as follows: “It shall be an offence, punishable by eight to fifteen years’ imprisonment, to establish, found, organise, regulate, direct or administer associations with the intention of adapting the fundamental legal, social, economic or political bases of the State, even in part, to religious beliefs. It shall be an offence, punishable by five to twelve years’ imprisonment, to be a member of an association of that type or to incite another to become a member. It shall be an offence, punishable by five to ten years’ imprisonment, to spread propaganda in any form or to attempt to acquire influence by exploiting religion, religious feelings or objects regarded as sacred by religion in a manner contrary to the principle of secularism and with the intention of adapting the fundamental legal, social, economic or political bases of the State, even in part, to religious beliefs or of serving political interests. It shall be an offence, punishable by two to five years’ imprisonment, to spread propaganda in any form or to attempt to acquire influence, with the aim of serving one’s personal interests or obtaining advantages, by exploiting religion, religious feelings, objects regarded as sacred by religion or religious books. Where the acts mentioned above are committed on the premises of the public administrative authorities, municipal councils, publicly owned undertakings whose capital, or part of whose capital, belongs to the State, trade unions, workers’ organisations, schools, or institutions of higher education, or by civil servants, technicians, doorkeepers or members of such establishments, the penalty shall be increased by a third. Where the acts mentioned in the third and fourth paragraphs above are committed by means of publications, the penalty shall be increased by a half.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 49. The applicants alleged that the dissolution of Refah Partisi (the Welfare Party) and the temporary prohibition barring its leaders – including Mr Necmettin Erbakan, Mr Şevket Kazan and Mr Ahmet Tekdal – from holding similar office in any other political party had infringed their right to freedom of association, guaranteed by Article 11 of the Convention, the relevant parts of which provide: “1. Everyone has the right to freedom of peaceful assembly and to freedom of association ... 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. ...” A. Whether there was an interference 50. The parties accepted that Refah’s dissolution and the measures which accompanied it amounted to an interference with the applicants’ exercise of their right to freedom of association. The Court takes the same view. B. Whether the interference was justified 51. Such an interference will constitute a breach of Article 11 unless it was “prescribed by law”, pursued one or more of the legitimate aims set out in paragraph 2 of that provision and was “necessary in a democratic society” for the achievement of those aims. 1. “Prescribed by law” (a) Arguments of the parties (i) The applicants 52. The applicants submitted that the criteria applied by the Constitutional Court in establishing that Refah had become a centre of anti-constitutional activities were broader than those laid down by Law no. 2820 on the regulation of political parties. The provisions of Law no. 2820, which laid down stricter criteria in the matter, namely those concerning refusal to expel members who had been convicted of criminal offences, had been declared void by a decision of the Constitutional Court one week before its decision to dissolve Refah. Moreover, the former decision had been published in the Official Gazette after Refah’s dissolution. 53. The applicants argued that all of the above had made it impossible to foresee what criteria the Constitutional Court would apply in deciding that Refah had become a centre of anti-constitutional activities. The new version of Law no. 2820 had not been accessible to the applicants before Refah’s dissolution. They could not have been expected to organise their political activities in accordance with criteria that did not exist before the party’s dissolution. The applicants submitted that the former version of Law no. 2820 should have been applied in their case and that, after Refah’s exclusion of its members whose speeches had been cited by Principal State Counsel in his submissions, the Constitutional Court should have discontinued the dissolution proceedings. (ii) The Government 54. The Government asked the Court to reject the applicants’ arguments. They observed that the interference in question was clearly prescribed by Articles 68 and 69 of the Constitution, which required political parties constituting centres of anti-constitutional activities, contrary to the principles of equality and of a secular, democratic republic in particular, to be dissolved by the Constitutional Court. They emphasised that one of the conditions for the dissolution of a political party, namely failure on its part to expel those of its members who had been convicted of criminal offences – a condition which had been added by the Law on the regulation of political parties to the definition of a “centre of anti-constitutional activities” – was no longer applicable in the case on account of changes to the Criminal Code. In other words, following the repeal of Article 163 of the Turkish Criminal Code, which concerned the dissemination of anti-secular ideas and the creation of associations for that purpose, the procedure laid down in section 103(2) of the Law on the regulation of political parties had become devoid of purpose. The Government submitted that for that reason section 103(2) was manifestly unconstitutional in that its application would have made it impossible to give full effect to the Constitution, and in particular Article 69 § 6 thereof, which gave the Constitutional Court sole power to rule that a political party constituted a centre of anti-constitutional activities. 55. The Government further submitted that a judgment concerning a review of the constitutionality of the specific rule to be applied in a particular dispute did not need to be published in the Official Gazette before the commencement of that dispute in order to be operative. In such a situation the Constitutional Court adjourned the proceedings until it had settled the question of the constitutionality of a legislative provision it had to apply. That procedure was a well-established practice of the Turkish Constitutional Court and of the higher courts in a number of other European countries. (b) The Court’s assessment 56. The Court must first consider whether the applicants are estopped from submitting this argument, since they accepted in their additional observations to the Chamber and at the hearing before the Chamber that the measures complained of were in accordance with domestic law, and in particular with the Constitution. In its judgment the Chamber noted that the parties agreed “that the interference concerned was ‘prescribed by law’, the measures imposed by the Constitutional Court being based on Articles 68, 69 and 84 of the Constitution and sections 101 and 107 of Law no. 2820 on the regulation of political parties”. However, the Court points out that the “case” referred to the Grand Chamber embraces in principle all aspects of the application previously examined by the Chamber in its judgment, the scope of its jurisdiction in the “case” being limited only by the Chamber’s decision on admissibility. It does not exclude the possibility of estoppel where one of the parties breaks good faith through a radical change of position. However, that has not occurred in the instant case, as the applicants presented in their initial applications the main lines of their argument on this point. They are therefore not estopped from raising the issue now (see, mutatis mutandis, K. and T. v. Finland [GC], no. 25702/94, §§ 139-41, ECHR 2001-VII; Kingsley v. the United Kingdom [GC], no. 35605/97, § 34, ECHR 2002-IV; and Göç v. Turkey [GC], no. 36590/97, §§ 35-37, ECHR 2002-V). 57. As regards the accessibility of the provisions in issue and the foreseeability of their effects, the Court reiterates that the expression “prescribed by law” requires firstly that the impugned measure should have a basis in domestic law. It also refers to the quality of the law in question, requiring that it be accessible to the persons concerned and formulated with sufficient precision to enable them – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Experience shows, however, that it is impossible to attain absolute precision in the framing of laws, particularly in fields in which the situation changes according to the evolving views of society. A law which confers a discretion is not in itself inconsistent with this requirement, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim in question, to give the individual adequate protection against arbitrary interference (see Müller and Others v. Switzerland, judgment of 24 May 1988, Series A no. 133, p. 20, § 29; Ezelin v. France, judgment of 26 April 1991, Series A no. 202, pp. 21-22, § 45; and Margareta and Roger Andersson v. Sweden, judgment of 25 February 1992, Series A no. 226-A, p. 25, § 75). The Court also accepts that the level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the status of those to whom it is addressed. It is, moreover, primarily for the national authorities to interpret and apply domestic law (see Vogt v. Germany, 26 September 1995, Series A no. 323, p. 24, § 48). 58. In the instant case the Court observes that the dispute under domestic law concerned the constitutionality of the activities of a political party and fell within the jurisdiction of the Constitutional Court. The written law most relevant to the question whether the interference was “prescribed by law” is the Turkish Constitution. 59. The parties did not dispute that activities contrary to the principles of equality and respect for a democratic, secular republic were undoubtedly unconstitutional under Article 68 of the Constitution. Nor did they deny that the Constitutional Court had sole jurisdiction, on an application by Principal State Counsel, to dissolve a political party which had become a centre of activities contrary to Article 68 of the Constitution. Moreover, Article 69 of the Constitution (amended in 1995) explicitly confirms that the Constitutional Court alone is empowered to determine whether a political party constitutes a centre of anti-constitutional activities. The Court notes that Refah’s MPs took part in the work of the parliamentary committee concerned and the debate in the Grand National Assembly on the 1995 amendments to the Constitution (see paragraph 11 above). 60. Furthermore, the fact that on 12 April 1991 anti-secular activities ceased to be punishable under the criminal law is not disputed by either party. The Court notes that, as the Turkish Constitutional Court explained in its judgment of 9 January 1998, there thus resulted a divergence between the Law on the regulation of political parties and the Constitution, in that the requirement in section 103(2) of the Law on the regulation of political parties that in order for the political party concerned to constitute a “centre of anti-constitutional activities” it had to have refused to expel those of its members who had been convicted of criminal offences, taken together with the amendments to the Criminal Code of 12 April 1991, had rendered meaningless the Constitutional Court’s power to dissolve political parties which constituted centres of anti-secular activities, even though that power was clearly conferred by Articles 68 § 4 and 69 §§ 4 and 6 of the Constitution. 61. It remains to be determined whether the applicants must have been aware of the possibility of a direct application of the Constitution in their case and could thus have foreseen the risks they ran through their party’s anti-secular activities or through their refusal to distance themselves from that type of activity, without the procedure laid down by section 103(2) of the Law on the regulation of political parties being followed. In order to be able to answer that question, the Court must first consider the relevant particularities of the legal background against which the facts of the case took place, as set out in the judgment of the Turkish Constitutional Court and not contested by the parties. The Turkish Constitution cannot be amended by ordinary legislation and takes precedence over statute law; a conflict between the Constitution’s provisions and those of ordinary legislation is resolved in the Constitution’s favour. In addition, the Constitutional Court has the power and the duty to review the constitutionality of legislation. Where in a particular case there is a discrepancy between the provisions of the applicable statute law and those of the Constitution, as happened in the instant case, the Constitutional Court is clearly required to give precedence to the provisions of the Constitution, disregarding the unconstitutional provisions of the relevant legislation. 62. The Court next takes into account the applicants’ status as the persons to whom the relevant legal instruments were addressed. Refah was a large political party which had legal advisers conversant with constitutional law and the rules governing political parties. Mr Necmettin Erbakan, Mr Şevket Kazan and Mr Ahmet Tekdal were also experienced politicians. As members of the Turkish parliament they had taken part in parliamentary discussions and procedures concerning the amendments to the Constitution, during which the Constitutional Court’s power to rule that a party had become a centre of anti-constitutional activities and the discrepancy between the new text of the Constitution and Law no. 2820 were mentioned. In addition, Mr Şevket Kazan and Mr Ahmet Tekdal were lawyers by profession (see paragraphs 10-11 above). 63. That being so, the Court considers that the applicants were reasonably able to foresee that they ran the risk of proceedings to dissolve Refah if the party’s leaders and members engaged in anti-secular activities, and that the fact that the steps laid down in section 103(2) of Law no. 2820 were not taken, having become inapplicable as a result of the 1991 changes to the Criminal Code’s provisions on anti-secular activities, could not prevent implementation of the dissolution procedure required by the Turkish Constitution. 64. Consequently, the interference was “prescribed by law”. 2. Legitimate aim 65. The Government submitted that the interference complained of pursued several legitimate aims, namely protection of public safety, national security and the rights and freedoms of others and the prevention of crime. 66. The applicants accepted in principle that protection of public safety and the rights and freedoms of others and the prevention of crime might depend on safeguarding the principle of secularism. However, they submitted that in pleading those aims the Government sought to conceal the underlying reasons which had led to Refah’s dissolution. In reality, they argued, this had been the aim of major business concerns and the military, whose interests were threatened by Refah’s economic policy, involving a reduction of the national debt to zero. 67. The Court considers that the applicants have not adduced sufficient evidence to establish that Refah was dissolved for reasons other than those cited by the Constitutional Court. Taking into account the importance of the principle of secularism for the democratic system in Turkey, it considers that Refah’s dissolution pursued several of the legitimate aims listed in Article 11, namely protection of national security and public safety, prevention of disorder or crime and protection of the rights and freedoms of others. 3. “Necessary in a democratic society” (a) Arguments of the parties (i) The applicants 68. The applicants submitted in the first place that the criticisms that had been levelled at Refah on the basis of speeches made several years before were not nearly sufficient to prove that the party constituted a threat to secularism and democracy in Turkey at the time when the dissolution proceedings were instituted against it. 69. They further observed that Refah had found itself in power thirteen years after its foundation. With its millions of members it had had a long political existence and had taken on many responsibilities in local and central government. In order to determine whether the party’s dissolution was necessary, the Court should assess all the factors that had led to the decision and all of the party’s activities since it had come into existence. 70. The applicants further emphasised the fact that Refah had been in power for a year, from June 1996 to July 1997, during which time it could have tabled draft legislation to introduce a regime based on Islamic law. But it had done nothing of the sort. The applicants submitted that “rigorous” European supervision on the Court’s part would have shown that Refah complied with democratic principles. 71. As regards the imputability to Refah of the statements and acts cited in the dissolution judgment, the applicants maintained that where these acts and speeches were attributable to members who had been expelled from the party for that very reason they could not engage Refah’s responsibility. The remarks of Refah’s chairman, Mr Necmettin Erbakan, had to be interpreted in context, in the light of the full text of the speeches from which they had been extracted. No apologia for violence could be discerned in those speeches. 72. With regard to the theory of a plurality of legal systems, the applicants pointed out that Mr Necmettin Erbakan’s speeches on that point were isolated and had been made in 1993. It was not the policy of Refah, as a political party, to introduce a plurality of legal systems, but at all events what Mr Necmettin Erbakan had proposed was only the introduction of a “civil-law” system, based on the freedom to enter into contracts, which would not have affected the general sphere of public law. Frustrating such a policy in the name of the special role of secularism in Turkey amounted to discrimination against Muslims who wished to conduct their private lives in accordance with the precepts of their religion. 73. On the question whether Refah sought to introduce a regime based on sharia, the applicants observed in the first place that there was no reference in Refah’s constitution or its programme to either sharia or Islam. Secondly, they submitted that analysis of the speeches made by Refah’s leaders did not establish that it was the party’s policy to introduce sharia in Turkey. The desire to see sharia introduced in Turkey, as expressed by certain MPs who had subsequently been expelled from Refah, could not be attributed to the party as a whole. In any case, the proposal to introduce sharia and the plan to establish a plurality of legal systems were incompatible, and the Constitutional Court had been mistaken in accusing Refah of supporting both proposals simultaneously. 74. Moreover, in the applicants’ submission, the concept of a “just order”, which had been mentioned in certain speeches by party members, was not a reference to divine order, contrary to what had been stated in the Chamber’s judgment. Many theoreticians had used the same term in order to describe their ideal society without giving it any religious connotation. 75. The applicants further disputed the statement in paragraph 72 of the Chamber’s judgment that “It is difficult to declare one’s respect for democracy and human rights while at the same time supporting a regime based on sharia ...”. They submitted that such a statement could lead to a distinction between “Christian democrats” and “Muslim democrats” and constitute discrimination against the 150 million Muslims in a total European population of 800 million. In any event, they considered that the question did not fall within the Court’s jurisdiction. 76. As regards recourse to force, the applicants maintained that even though some Refah members had mentioned such a possibility in their speeches, no member of Refah had ever attempted to use force. The inescapable conclusion was that the acts and speeches criticised on this account did not at the time of the party’s dissolution represent a real danger for secularism in Turkey. Certain members who had made such speeches had been expelled from Refah. One of them had been convicted just before the dissolution, so that Refah had not had time to expel him before being dissolved. The other speeches for which Refah’s leaders had been criticised had been made before the party came to power. 77. Lastly, the applicants submitted that the interference in issue was not proportionate to the aims pursued. They laid particular emphasis on the harshness of dissolving any political party on account of speeches made by some of its members, the scale of the political disabilities imposed on the three applicants, Mr Necmettin Erbakan, Mr Şevket Kazan and Mr Ahmet Tekdal, and the heavy financial losses suffered by Refah following its dissolution. (ii) The Government 78. On the question whether Refah presented a danger at the time of its dissolution, the Government observed that the party had never exercised power alone and had therefore never had an opportunity to put its plan of setting up a theocratic State into practice. They submitted that if Refah had been the sole party in power it would have been quite capable of implementing its policy and thus putting an end to democracy. 79. The Government further submitted that the speeches criticised by the Constitutional Court were imputable to Refah. They pointed out that Article 4 of the party’s constitution provided for the exclusion of members responsible for acts contrary to the decisions of its executive organs; under Article 5 of the constitution members who committed acts contrary to the party’s constitution and programme were liable to the same penalty. The Government asserted that these provisions had never been applied to the Refah members guilty of the offending acts and statements. 80. Moreover, the plan to introduce a plurality of legal systems, which had never been abandoned by Refah, was clearly incompatible with the principle of non-discrimination, which was enshrined in the Convention and was one of the fundamental principles of democracy. 81. With regard to the question whether Refah supported the introduction of sharia in Turkey, the Government observed that it was not the party’s official programme which caused a problem but the fact that certain aspects of the activities and speeches of Refah’s leaders unambiguously indicated that the party would seek to introduce sharia if it held power alone. They pointed out that the concept of a “just order”, mentioned by Refah, had formed the basis for its campaign in the 1995 general election. In explaining the concept of a “just order” in the context of that propaganda, Refah’s leaders had clearly been referring to an order based on sharia. 82. The Government endorsed the opinion expressed by the Constitutional Court and in paragraph 72 of the Chamber’s judgment that sharia is hard to reconcile with democracy and the Convention system. A theocratic State could not be a democratic State, as could be seen from Turkish history during the Ottoman period, among other examples. The Government mentioned a number of instances of incompatibility between the main rules of sharia and the rights and freedoms guaranteed by the Convention. 83. The Government did not believe that Refah was content to interpret the principle of secularism differently. In their submission, the party wished to do away with that principle altogether. This was evidenced by the submissions made on Refah’s behalf during the latest debates on amendment of the Constitution, since Refah had quite simply proposed deleting the reference in the Constitution to the principle of secularism. 84. As to the possibility of using force as a method of political struggle, the Government cited the statements of Refah members who advocated the use of violence in order to resist certain government policies or to gain power and retain it. They submitted that a number of acts and speeches by Refah members constituted incitement to a popular uprising and the generalised violence characterising any “holy war”. 85. The Government further observed that at the material time radical Islamist groups such as Hizbullah were carrying out numerous acts of terrorism in Turkey. It was also at that time that Refah members were advocating Islamic fundamentalism in their speeches, one example being a visit made by one of the applicants, Mr Şevket Kazan, the Minister of Justice at the time, to a mayor who had been arrested for organising a “Jerusalem evening” in a room decorated with posters showing the leaders of the terrorist organisations Hamas and Hizbullah. (b) The Court’s assessment (i) General principles (α) Democracy and political parties in the Convention system 86. On the question of the relationship between democracy and the Convention, the Court has already ruled, in United Communist Party of Turkey and Others v. Turkey (judgment of 30 January 1998, Reports of Judgments and Decisions 1998-I, pp. 21-22, § 45), as follows: “Democracy is without doubt a fundamental feature of the European public order ... That is apparent, firstly, from the Preamble to the Convention, which establishes a very clear connection between the Convention and democracy by stating that the maintenance and further realisation of human rights and fundamental freedoms are best ensured on the one hand by an effective political democracy and on the other by a common understanding and observance of human rights ... The Preamble goes on to affirm that European countries have a common heritage of political tradition, ideals, freedom and the rule of law. The Court has observed that in that common heritage are to be found the underlying values of the Convention ...; it has pointed out several times that the Convention was designed to maintain and promote the ideals and values of a democratic society ... In addition, Articles 8, 9, 10 and 11 of the Convention require that interference with the exercise of the rights they enshrine must be assessed by the yardstick of what is ‘necessary in a democratic society’. The only type of necessity capable of justifying an interference with any of those rights is, therefore, one which may claim to spring from ‘democratic society’. Democracy thus appears to be the only political model contemplated by the Convention and, accordingly, the only one compatible with it.” 87. The Court has also confirmed on a number of occasions the primordial role played in a democratic regime by political parties enjoying the freedoms and rights enshrined in Article 11 and also in Article 10 of the Convention. In United Communist Party of Turkey and Others, cited above, it stated that it found even more persuasive than the wording of Article 11 the fact that political parties were a form of association essential to the proper functioning of democracy (p. 17, § 25). In view of the role played by political parties, any measure taken against them affected both freedom of association and, consequently, democracy in the State concerned (p. 18, § 31). It is in the nature of the role they play that political parties, the only bodies which can come to power, also have the capacity to influence the whole of the regime in their countries. By the proposals for an overall societal model which they put before the electorate and by their capacity to implement those proposals once they come to power, political parties differ from other organisations which intervene in the political arena. 88. Moreover, the Court has previously noted that protection of opinions and the freedom to express them within the meaning of Article 10 of the Convention is one of the objectives of the freedoms of assembly and association enshrined in Article 11. That applies all the more in relation to political parties in view of their essential role in ensuring pluralism and the proper functioning of democracy (ibid., pp. 20-21, §§ 42-43). 89. The Court considers that there can be no democracy without pluralism. It is for that reason that freedom of expression as enshrined in Article 10 is applicable, subject to paragraph 2, not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb (see, among many other authorities, Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 23, § 49, and Jersild v. Denmark, judgment of 23 September 1994, Series A no. 298, p. 26, § 37). Inasmuch as their activities form part of a collective exercise of the freedom of expression, political parties are also entitled to seek the protection of Article 10 of the Convention (see United Communist Party of Turkey and Others, cited above, pp. 20-21, § 43). (β) Democracy and religion in the Convention system 90. For the purposes of the present case, the Court also refers to its case-law concerning the place of religion in a democratic society and a democratic State. It reiterates that, as protected by Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion (see Kokkinakis v. Greece, judgment of 25 May 1993, Series A no. 260-A, p. 17, § 31, and Buscarini and Others v. San Marino [GC], no. 24645/94, § 34, ECHR 1999-I). 91. Moreover, in democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on this freedom in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected (see Kokkinakis, cited above, p. 18, § 33). The Court has frequently emphasised the State’s role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs, and stated that this role is conducive to public order, religious harmony and tolerance in a democratic society. It also considers that the State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs (see, mutatis mutandis, Cha’are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 84, ECHR 2000-VII) and that it requires the State to ensure mutual tolerance between opposing groups (see, mutatis mutandis, Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, § 123, ECHR 2001-XII). 92. The Court’s established case-law confirms this function of the State. It has held that in a democratic society the State may limit the freedom to manifest a religion, for example by wearing an Islamic headscarf, if the exercise of that freedom clashes with the aim of protecting the rights and freedoms of others, public order and public safety (see Dahlab v. Switzerland (dec.), no. 42393/98, ECHR 2001-V). While freedom of religion is in the first place a matter of individual conscience, it also implies freedom to manifest one’s religion alone and in private or in community with others, in public and within the circle of those whose faith one shares. Article 9 lists a number of forms which manifestation of a religion or belief may take, namely worship, teaching, practice and observance. Nevertheless, it does not protect every act motivated or influenced by a religion or belief (see Kalaç v. Turkey, judgment of 1 July 1997, Reports 1997-IV, p. 1209, § 27). The obligation for a teacher to observe normal working hours which, he asserts, clash with his attendance at prayers, may be compatible with the freedom of religion (see X v. the United Kingdom, no. 8160/78, Commission decision of 12 March 1981, Decisions and Reports (DR) 22, p. 27), as may the obligation requiring a motorcyclist to wear a crash helmet, which in his view is incompatible with his religious duties (see X v. the United Kingdom, no. 7992/77, Commission decision of 12 July 1978, DR 14, p. 234). 93. In applying the above principles to Turkey the Convention institutions have expressed the view that the principle of secularism is certainly one of the fundamental principles of the State which are in harmony with the rule of law and respect for human rights and democracy. An attitude which fails to respect that principle will not necessarily be accepted as being covered by the freedom to manifest one’s religion and will not enjoy the protection of Article 9 of the Convention (see the opinion of the Commission, expressed in its report of 27 February 1996, in Kalaç, cited above, p. 1215, § 44, and, mutatis mutandis, p. 1209, §§ 27-31). 94. In order to perform its role as the neutral and impartial organiser of the exercise of religious beliefs, the State may decide to impose on its serving or future civil servants, who will be required to wield a portion of its sovereign power, the duty to refrain from taking part in the Islamic fundamentalist movement, whose goal and plan of action is to bring about the pre-eminence of religious rules (see, mutatis mutandis, Yanasik v. Turkey, no. 14524/89, Commission decision of 6 January 1993, DR 74, p. 14, and Kalaç, cited above, p. 1209, § 28). 95. In a country like Turkey, where the great majority of the population belong to a particular religion, measures taken in universities to prevent certain fundamentalist religious movements from exerting pressure on students who do not practise that religion or on those who belong to another religion may be justified under Article 9 § 2 of the Convention. In that context, secular universities may regulate manifestation of the rites and symbols of the said religion by imposing restrictions as to the place and manner of such manifestation with the aim of ensuring peaceful co ‑ existence between students of various faiths and thus protecting public order and the beliefs of others (see Karaduman v. Turkey, no. 16278/90, Commission decision of 3 May 1993, DR 74, p. 93). (γ) The possibility of imposing restrictions, and rigorous European supervision 96. The freedoms guaranteed by Article 11, and by Articles 9 and 10 of the Convention, cannot deprive the authorities of a State in which an association, through its activities, jeopardises that State’s institutions, of the right to protect those institutions. In this connection, the Court points out that it has previously held that some compromise between the requirements of defending democratic society and individual rights is inherent in the Convention system. For there to be a compromise of that sort any intervention by the authorities must be in accordance with paragraph 2 of Article 11 – a matter which the Court considers below. Only when that review is complete will the Court be in a position to decide, in the light of all the circumstances of the case, whether Article 17 of the Convention should be applied (see United Communist Party of Turkey and Others, cited above, p. 18, § 32). 97. The Court has also defined as follows the limits within which political organisations can continue to enjoy the protection of the Convention while conducting their activities (ibid., p. 27, § 57): “... one of the principal characteristics of democracy [is] the possibility it offers of resolving a country’s problems through dialogue, without recourse to violence, even when they are irksome. Democracy thrives on freedom of expression. From that point of view, there can be no justification for hindering a political group solely because it seeks to debate in public the situation of part of the State’s population and to take part in the nation’s political life in order to find, according to democratic rules, solutions capable of satisfying everyone concerned.” 98. On that point, the Court considers that a political party may promote a change in the law or the legal and constitutional structures of the State on two conditions: firstly, the means used to that end must be legal and democratic; secondly, the change proposed must itself be compatible with fundamental democratic principles. It necessarily follows that a political party whose leaders incite to violence or put forward a policy which fails to respect democracy or which is aimed at the destruction of democracy and the flouting of the rights and freedoms recognised in a democracy cannot lay claim to the Convention’s protection against penalties imposed on those grounds (see Yazar and Others v. Turkey, nos. 22723/93, 22724/93 and 22725/93, § 49, ECHR 2002-II, and, mutatis mutandis, the following judgments: Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, § 97, ECHR 2001-IX, and Socialist Party and Others v. Turkey, judgment of 25 May 1998, Reports 1998-III, pp. 1256-57, §§ 46-47). 99. The possibility cannot be excluded that a political party, in pleading the rights enshrined in Article 11 and also in Articles 9 and 10 of the Convention, might attempt to derive therefrom the right to conduct what amounts in practice to activities intended to destroy the rights or freedoms set forth in the Convention and thus bring about the destruction of democracy (see Communist Party (KPD) v. Germany, no. 250/57, Commission decision of 20 July 1957, Yearbook 1, p. 222). In view of the very clear link between the Convention and democracy (see paragraphs 86-89 above), no one must be authorised to rely on the Convention’s provisions in order to weaken or destroy the ideals and values of a democratic society. Pluralism and democracy are based on a compromise that requires various concessions by individuals or groups of individuals, who must sometimes agree to limit some of the freedoms they enjoy in order to guarantee greater stability of the country as a whole (see, mutatis mutandis, Petersen v. Germany (dec.), no. 39793/98, ECHR 2001-XII). In that context, the Court considers that it is not at all improbable that totalitarian movements, organised in the form of political parties, might do away with democracy, after prospering under the democratic regime, there being examples of this in modern European history. 100. The Court reiterates, however, that the exceptions set out in Article 11 are, where political parties are concerned, to be construed strictly; only convincing and compelling reasons can justify restrictions on such parties’ freedom of association. In determining whether a necessity within the meaning of Article 11 § 2 exists, the Contracting States have only a limited margin of appreciation. Although it is not for the Court to take the place of the national authorities, which are better placed than an international court to decide, for example, the appropriate timing for interference, it must exercise rigorous supervision embracing both the law and the decisions applying it, including those given by independent courts. Drastic measures, such as the dissolution of an entire political party and a disability barring its leaders from carrying on any similar activity for a specified period, may be taken only in the most serious cases (see the following judgments: United Communist Party of Turkey and Others, cited above, p. 22, § 46; Socialist Party and Others, cited above, p. 1258, § 50; and Freedom and Democracy Party (ÖZDEP) v. Turkey [GC], no. 23885/94, § 45, ECHR 1999-VIII). Provided that it satisfies the conditions set out in paragraph 98 above, a political party animated by the moral values imposed by a religion cannot be regarded as intrinsically inimical to the fundamental principles of democracy, as set forth in the Convention. (δ) Imputability to a political party of the acts and speeches of its members 101. The Court further considers that the constitution and programme of a political party cannot be taken into account as the sole criterion for determining its objectives and intentions. The political experience of the Contracting States has shown that in the past political parties with aims contrary to the fundamental principles of democracy have not revealed such aims in their official publications until after taking power. That is why the Court has always pointed out that a party’s political programme may conceal objectives and intentions different from the ones it proclaims. To verify that it does not, the content of the programme must be compared with the actions of the party’s leaders and the positions they defend. Taken together, these acts and stances may be relevant in proceedings for the dissolution of a political party, provided that as a whole they disclose its aims and intentions (see United Communist Party of Turkey and Others, cited above, p. 27, § 58, and Socialist Party and Others, cited above, pp. 1257-58, § 48). (ε) The appropriate timing for dissolution 102. In addition, the Court considers that a State cannot be required to wait, before intervening, until a political party has seized power and begun to take concrete steps to implement a policy incompatible with the standards of the Convention and democracy, even though the danger of that policy for democracy is sufficiently established and imminent. The Court accepts that where the presence of such a danger has been established by the national courts, after detailed scrutiny subjected to rigorous European supervision, a State may “reasonably forestall the execution of such a policy, which is incompatible with the Convention’s provisions, before an attempt is made to implement it through concrete steps that might prejudice civil peace and the country’s democratic regime” (see the Chamber’s judgment, § 81). 103. The Court takes the view that such a power of preventive intervention on the State’s part is also consistent with Contracting Parties’ positive obligations under Article 1 of the Convention to secure the rights and freedoms of persons within their jurisdiction. Those obligations relate not only to any interference that may result from acts or omissions imputable to agents of the State or occurring in public establishments but also to interference imputable to private individuals within non-State entities (see, for example, with regard to the State’s obligation to make private hospitals adopt appropriate measures to protect life, Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002-I). A Contracting State may be justified under its positive obligations in imposing on political parties, which are bodies whose raison d’être is to accede to power and direct the work of a considerable portion of the State apparatus, the duty to respect and safeguard the rights and freedoms guaranteed by the Convention and the obligation not to put forward a political programme in contradiction with the fundamental principles of democracy. (ζ) Overall examination 104. In the light of the above considerations, the Court’s overall examination of the question whether the dissolution of a political party on account of a risk of democratic principles being undermined met a “pressing social need” (see, for example, Socialist Party and Others, cited above, p. 1258, § 49) must concentrate on the following points: (i) whether there was plausible evidence that the risk to democracy, supposing it had been proved to exist, was sufficiently imminent; (ii) whether the acts and speeches of the leaders and members of the political party concerned were imputable to the party as a whole; and (iii) whether the acts and speeches imputable to the political party formed a whole which gave a clear picture of a model of society conceived and advocated by the party which was incompatible with the concept of a “democratic society”. 105. The overall examination of the above points that the Court must conduct also has to take account of the historical context in which the dissolution of the party concerned took place and the general interest in preserving the principle of secularism in that context in the country concerned to ensure the proper functioning of “democratic society” (see, mutatis mutandis, Petersen, cited above). (ii) Application of the above principles to the present case 106. The Court will devote the first part of its examination to the question whether Refah’s dissolution and the secondary penalties imposed on the other applicants met a “pressing social need”. It will then determine, if the case arises, whether those penalties were “proportionate to the legitimate aims pursued”. (α) Pressing social need The appropriate timing for dissolution 107. The Court will first determine whether Refah could have presented a threat to the democratic regime at the time when it was dissolved. It observes in that connection that Refah was founded in 1983, took part in a number of general and local election campaigns and obtained approximately 22% of the votes in the 1995 general election, which gave it 158 seats in the Grand National Assembly (out of a total of 450 at the material time). After sharing power in a coalition government, Refah obtained about 35% of the votes in the local elections of November 1996. According to an opinion poll carried out in January 1997, if a general election had been held at that time Refah would have received 38% of the votes. According to the forecasts of the same opinion poll, Refah could have obtained 67% of the votes in the general election likely to be held about four years’ later (see paragraph 11 above). Notwithstanding the uncertain nature of some opinion polls, those figures bear witness to a considerable rise in Refah’s influence as a political party and its chances of coming to power alone. 108. The Court accordingly considers that at the time of its dissolution Refah had the real potential to seize political power without being restricted by the compromises inherent in a coalition. If Refah had proposed a programme contrary to democratic principles, its monopoly of political power would have enabled it to establish the model of society envisaged in that programme. 109. As regards the applicants’ argument that Refah was punished for speeches by its members made several years before its dissolution, the Court considers that the Turkish courts, when reviewing the constitutionality of Refah’s acts, could legitimately take into consideration the progression over time of the real risk that the party’s activities represented for the principles of democracy. The same applies to the review of Refah’s compliance with the principles set forth in the Convention. Firstly, the programme and policies of a political party may become clear through the accumulation of acts and speeches by its members over a relatively long period. Secondly, the party concerned may, over the years, increase its chances of gaining political power and implementing its policies. 110. While it can be considered, in the present case, that Refah’s policies were dangerous for the rights and freedoms guaranteed by the Convention, the real chances that Refah would implement its programme after gaining power made that danger more tangible and more immediate. That being the case, the Court cannot criticise the national courts for not acting earlier, at the risk of intervening prematurely and before the danger concerned had taken shape and become real. Nor can it criticise them for not waiting, at the risk of putting the political regime and civil peace in jeopardy, for Refah to seize power and swing into action, for example by tabling bills in Parliament, in order to implement its plans. In short, the Court considers that in electing to intervene at the time when they did in the present case the national authorities did not go beyond the margin of appreciation left to them under the Convention. Imputability to Refah of the acts and speeches of its members 111. The parties before the Court agreed that neither in its constitution nor in the coalition programme it had negotiated with another political party, the True Path Party (Doğru Yol Partisi), had Refah proposed altering Turkey’s constitutional settlement in a way that would be contrary to the fundamental principles of democracy. Refah was dissolved on the basis of the statements made and stances adopted by its chairman and some of its members. 112. Those statements and stances were made or adopted, according to the Constitutional Court, by seven of Refah’s leading figures, namely its chairman, Mr Necmettin Erbakan, its two vice-chairmen, Mr Şevket Kazan and Mr Ahmet Tekdal, three Refah members of Turkey’s Grand National Assembly, Mr Şevki Yılmaz, Mr Hasan Hüseyin Ceylan and Mr İbrahim Halil Çelik, and the mayor of the city of Konya, Mr Recai Karatepe, elected on a Refah ticket. 113. The Court considers that the statements and acts of Mr Necmettin Erbakan, in his capacity as chairman of Refah or as the Prime Minister elected on account of his position as the leader of his party, could incontestably be attributed to Refah. The role of a chairman, who is frequently a party’s emblematic figure, is different in that respect from that of a simple member. Remarks on politically sensitive subjects or positions taken up by the chairman of a party are perceived by political institutions and by public opinion as acts reflecting the party’s views, rather than his personal opinions, unless he declares that this is not the case. The Court observes on that point that Mr Erbakan never made it clear that his statements and stances did not reflect Refah’s policy or that he was only expressing his personal opinion. 114. The Court considers that the speeches and stances of Refah’s vice-chairmen could be treated in the same way as those of its chairman. Save where otherwise indicated, remarks by such persons on political questions are imputable to the party they represent. That applies in the present case to the remarks of Mr Şevket Kazan and Mr Ahmet Tekdal. 115. Moreover, the Court considers that, inasmuch as the acts and remarks of the other Refah members who were MPs or held local government posts formed a whole which disclosed the party’s aims and intentions and projected an image, when viewed in the aggregate, of the model of society it wished to set up, these could also be imputed to Refah. These acts or remarks were likely to influence potential voters by arousing their hopes, expectations or fears, not because they were attributable to individuals but because they had been done or made on Refah’s behalf by MPs and a mayor, all of whom had been elected on a Refah platform. Such acts and speeches were potentially more effective than abstract forms of words written in the party’s constitution and programme in achieving any unlawful ends. The Court considers that such acts and speeches are imputable to a party unless it distances itself from them. But a short time later Refah presented those responsible for these acts and speeches as candidates for important posts, such as member of Parliament or mayor of a large city, and distributed one of the offending speeches to its local branches to serve as material for the political training of its members. Before the proceedings to dissolve Refah were instituted no disciplinary action was taken within the party against those who had made the speeches concerned on account of their activities or public statements and Refah never criticised their remarks. The Court accepts the Turkish Constitutional Court’s conclusion on this point to the effect that Refah had decided to expel those responsible for the acts and speeches concerned in the hope of avoiding dissolution and that the decision was not made freely, as the decisions of leaders of associations should be if they are to be recognised under Article 11 (see, mutatis mutandis, Freedom and Democracy Party (ÖZDEP), cited above, § 26). The Court accordingly concludes that the acts and speeches of Refah’s members and leaders cited by the Constitutional Court in its dissolution judgment were imputable to the whole party. The main grounds for dissolution cited by the Constitutional Court 116. The Court considers on this point that among the arguments for dissolution pleaded by Principal State Counsel at the Court of Cassation those cited by the Constitutional Court as grounds for its finding that Refah had become a centre of anti-constitutional activities can be classified into three main groups: (i) the arguments that Refah intended to set up a plurality of legal systems, leading to discrimination based on religious beliefs; (ii) the arguments that Refah intended to apply sharia to the internal or external relations of the Muslim community within the context of this plurality of legal systems; and (iii) the arguments based on the references made by Refah members to the possibility of recourse to force as a political method. The Court must therefore limit its examination to those three groups of arguments cited by the Constitutional Court. (a) The plan to set up a plurality of legal systems 117. The Court notes that the Constitutional Court took account in this connection of two declarations by the applicant Mr Necmettin Erbakan, Refah’s chairman, on 23 March 1993 in Parliament and on 10 October 1993 at a Refah party conference (see paragraph 28 above). In the light of its considerations on the question of the appropriate timing for dissolution of the party (see paragraphs 107-10 above) and on the imputability to Refah of Mr Necmettin Erbakan’s speeches (see paragraph 113 above), it takes the view that these two speeches could be regarded as reflecting one of the policies which formed part of Refah’s programme, even though the party’s constitution said nothing on the subject. 118. With regard to the applicants’ argument that when Refah was in power it had never taken any concrete steps to implement the idea behind this proposal, the Court considers that it would not have been realistic to wait until Refah was in a position to include such objectives in the coalition programme it had negotiated with a political party of the centre-right. It merely notes that a plurality of legal systems was a policy which formed part of Refah’s programme. 119. The Court sees no reason to depart from the Chamber’s conclusion that a plurality of legal systems, as proposed by Refah, cannot be considered to be compatible with the Convention system. In its judgment, the Chamber gave the following reasoning: “70. ... the Court considers that Refah’s proposal that there should be a plurality of legal systems would introduce into all legal relationships a distinction between individuals grounded on religion, would categorise everyone according to his religious beliefs and would allow him rights and freedoms not as an individual but according to his allegiance to a religious movement. The Court takes the view that such a societal model cannot be considered compatible with the Convention system, for two reasons. Firstly, it would do away with the State’s role as the guarantor of individual rights and freedoms and the impartial organiser of the practice of the various beliefs and religions in a democratic society, since it would oblige individuals to obey, not rules laid down by the State in the exercise of its above-mentioned functions, but static rules of law imposed by the religion concerned. But the State has a positive obligation to ensure that everyone within its jurisdiction enjoys in full, and without being able to waive them, the rights and freedoms guaranteed by the Convention (see, mutatis mutandis, Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, p. 14, § 25). Secondly, such a system would undeniably infringe the principle of non-discrimination between individuals as regards their enjoyment of public freedoms, which is one of the fundamental principles of democracy. A difference in treatment between individuals in all fields of public and private law according to their religion or beliefs manifestly cannot be justified under the Convention, and more particularly Article 14 thereof, which prohibits discrimination. Such a difference in treatment cannot maintain a fair balance between, on the one hand, the claims of certain religious groups who wish to be governed by their own rules and on the other the interest of society as a whole, which must be based on peace and on tolerance between the various religions and beliefs (see, mutatis mutandis, the judgment of 23 July 1968 in the “Belgian linguistic” case, Series A no. 6, pp. 33-35, §§ 9 and 10, and Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, pp. 35-36, § 72). (b) Sharia 120. The Court observes in the first place that the intention to set up a regime based on sharia was explicitly portended in the following remarks cited by the Constitutional Court, which had been made by certain members of Refah, all of whom were MPs: – In a television interview broadcast on 24 November 1996 Mr Hasan Hüseyin Ceylan, Refah MP for the province of Ankara, said that sharia was the solution for the country (see paragraph 34 above); – On 8 May 1997 Mr İbrahim Halil Çelik, Refah MP for the province of Şanlıurfa, said: “I will fight to the end to introduce sharia” (see paragraph 37 above); – In April 1994 Mr Şevki Yılmaz, Refah MP for the province of Rize, urged believers to “call to account those who turn their backs on the precepts of the Koran and those who deprive Allah’s Messenger of his jurisdiction in their country” and asserted: “Only 39% [of the rules] in the Koran are applied in this country. Six thousand five hundred verses have been quietly forgotten ...” He went on to say: “The condition to be met before prayer is the Islamisation of power. Allah says that, before mosques, it is the path of power which must be Muslim” and “The question Allah will ask you is this: ‘Why, in the time of the blasphemous regime, did you not work for the construction of an Islamic State?’ Erbakan and his friends want to bring Islam to this country in the form of a political party. The prosecutor understood that clearly. If we could understand that as he did, the problem would be solved” (see paragraph 33 above). 121. The Court further notes the following remarks by Refah’s chairman and vice-chairman, on their desire to set up a “just order” or “order of justice” or “God’s order”, which the Constitutional Court took into consideration: – On 13 April 1994 Mr Necmettin Erbakan said: “Refah will come to power and a just order [ adil dozen ] will be established” (see paragraph 31 above), and in a speech on 7 May 1996 he praised “those who contribute, with conviction, to the supremacy of Allah” (see paragraph 39 above); – While on pilgrimage in 1993 Mr Ahmet Tekdal said: “If the people ... do not work hard enough to bring about the advent of ‘ hak nizami ’ [a just order or God’s order], ... they will be tyrannised by [renegades] and will eventually disappear ... they will not be able to give a satisfactory account of themselves to Allah, as they will not have worked to establish ‘ hak nizami ’ ” (see paragraph 35 above). 122. Even though these last two statements lend themselves to a number of different interpretations, their common denominator is that they both refer to religious or divine rules as the basis for the political regime which the speakers wished to bring into being. They betray ambiguity about those speakers’ attachment to any order not based on religious rules. In the light of the context created by the various views attributed to Refah’s leaders which the Constitutional Court cited in its judgment, for example on the question of the wearing of Islamic headscarves in the public sector or on the organisation of working hours in the civil service to fit in with the appointed times for prayers, the statements concerned could reasonably have been understood as confirming statements made by Refah MPs which revealed the party’s intention of setting up a regime based on sharia. The Court can therefore accept the Constitutional Court’s conclusion that these remarks and stances of Refah’s leaders formed a whole and gave a clear picture of a model conceived and proposed by the party of a State and society organised according to religious rules. 123. The Court concurs in the Chamber’s view that sharia is incompatible with the fundamental principles of democracy, as set forth in the Convention: “72. Like the Constitutional Court, the Court considers that sharia, which faithfully reflects the dogmas and divine rules laid down by religion, is stable and invariable. Principles such as pluralism in the political sphere or the constant evolution of public freedoms have no place in it. The Court notes that, when read together, the offending statements, which contain explicit references to the introduction of sharia, are difficult to reconcile with the fundamental principles of democracy, as conceived in the Convention taken as a whole. It is difficult to declare one’s respect for democracy and human rights while at the same time supporting a regime based on sharia, which clearly diverges from Convention values, particularly with regard to its criminal law and criminal procedure, its rules on the legal status of women and the way it intervenes in all spheres of private and public life in accordance with religious precepts. ... In the Court’s view, a political party whose actions seem to be aimed at introducing sharia in a State party to the Convention can hardly be regarded as an association complying with the democratic ideal that underlies the whole of the Convention.” 124. The Court must not lose sight of the fact that in the past political movements based on religious fundamentalism have been able to seize political power in certain States and have had the opportunity to set up the model of society which they had in mind. It considers that, in accordance with the Convention’s provisions, each Contracting State may oppose such political movements in the light of its historical experience. 125. The Court further observes that there was already an Islamic theocratic regime under Ottoman law. When the former theocratic regime was dismantled and the republican regime was being set up, Turkey opted for a form of secularism which confined Islam and other religions to the sphere of private religious practice. Mindful of the importance for survival of the democratic regime of ensuring respect for the principle of secularism in Turkey, the Court considers that the Constitutional Court was justified in holding that Refah’s policy of establishing sharia was incompatible with democracy (see paragraph 40 above). (c) Sharia and its relationship with the plurality of legal systems proposed by Refah 126. The Court will next examine the applicants’ argument that the Chamber contradicted itself in holding that Refah supported introducing both a plurality of legal systems and sharia simultaneously. It takes note of the Constitutional Court’s considerations concerning the part played by a plurality of legal systems in the application of sharia in the history of Islamic law. These showed that sharia is a system of law applicable to relations between Muslims themselves and between Muslims and the adherents of other faiths. In order to enable the communities owing allegiance to other religions to live in a society dominated by sharia, a plurality of legal systems had also been introduced by the Islamic theocratic regime during the Ottoman Empire, before the Republic was founded. 127. The Court is not required to express an opinion in the abstract on the advantages and disadvantages of a plurality of legal systems. It notes, for the purposes of the present case, that – as the Constitutional Court observed – Refah’s policy was to apply some of sharia’s private-law rules to a large part of the population in Turkey (namely Muslims), within the framework of a plurality of legal systems. Such a policy goes beyond the freedom of individuals to observe the precepts of their religion, for example by organising religious wedding ceremonies before or after a civil marriage (a common practice in Turkey) and according religious marriage the effect of a civil marriage (see, mutatis mutandis, Serif v. Greece, no. 38178/97, § 50, ECHR 1999-IX). This Refah policy falls outside the private sphere to which Turkish law confines religion and suffers from the same contradictions with the Convention system as the introduction of sharia (see paragraph 125 above). 128. Pursuing that line of reasoning, the Court rejects the applicants’ argument that prohibiting a plurality of private-law systems in the name of the special role of secularism in Turkey amounted to establishing discrimination against Muslims who wished to live their private lives in accordance with the precepts of their religion. It reiterates that freedom of religion, including the freedom to manifest one’s religion by worship and observance, is primarily a matter of individual conscience, and stresses that the sphere of individual conscience is quite different from the field of private law, which concerns the organisation and functioning of society as a whole. It has not been disputed before the Court that in Turkey everyone can observe in his private life the requirements of his religion. On the other hand, Turkey, like any other Contracting Party, may legitimately prevent the application within its jurisdiction of private-law rules of religious inspiration prejudicial to public order and the values of democracy for Convention purposes (such as rules permitting discrimination based on the gender of the parties concerned, as in polygamy and privileges for the male sex in matters of divorce and succession). The freedom to enter into contracts cannot encroach upon the State’s role as the neutral and impartial organiser of the exercise of religions, faiths and beliefs (see paragraphs 91 ‑ 92 above). (d) The possibility of recourse to force 129. The Court takes into consideration under this heading the following remarks cited by the Constitutional Court and made by: – Mr Necmettin Erbakan, on 13 April 1994, on the question whether power would be gained by violence or by peaceful means (whether the change would involve bloodshed or not – see paragraph 31 above); – Mr Şevki Yılmaz, in April 1994, concerning his interpretation of jihad and the possibility for Muslims of arming themselves after coming to power (see paragraph 33 above); – Mr Hasan Hüseyin Ceylan, on 14 March 1993, who insulted and threatened the supporters of a regime on the Western model (see paragraph 34 above); – Mr Şükrü Karatepe, who, in his speech on 10 December 1996, advised believers to keep alive the rancour and hatred they felt in their hearts (see paragraph 36 above); and – Mr İbrahim Halil Çelik, on 8 May 1997, who said he wanted blood to flow to prevent the closure of the theological colleges (see paragraph 37 above). The Court also takes into account the visit by Mr Şevket Kazan, who was then the Minister of Justice, to a member of his party charged with incitement to hatred based on religious discrimination (see paragraph 38 above). 130. The Court considers that, whatever meaning is ascribed to the term “jihad” used in most of the speeches mentioned above (whose primary meaning is holy war and the struggle to be waged until the total domination of Islam in society is achieved), there was ambiguity in the terminology used to refer to the method to be employed to gain political power. In all of these speeches the possibility was mentioned of resorting “legitimately” to force in order to overcome various obstacles Refah expected to meet in the political route by which it intended to gain and retain power. 131. Furthermore, the Court endorses the following finding of the Chamber: “74. ... While it is true that [Refah’s] leaders did not, in government documents, call for the use of force and violence as a political weapon, they did not take prompt practical steps to distance themselves from those members of [Refah] who had publicly referred with approval to the possibility of using force against politicians who opposed them. Consequently, Refah’s leaders did not dispel the ambiguity of these statements about the possibility of having recourse to violent methods in order to gain power and retain it (see, mutatis mutandis, Zana v. Turkey, judgment of 25 November 1997, Reports 1997-VII, p. 2549, § 58).” Overall examination of “pressing social need” 132. In making an overall assessment of the points it has just listed above in connection with its examination of the question whether there was a pressing social need for the interference in issue in the present case, the Court finds that the acts and speeches of Refah’s members and leaders cited by the Constitutional Court were imputable to the whole of the party, that those acts and speeches revealed Refah’s long-term policy of setting up a regime based on sharia within the framework of a plurality of legal systems and that Refah did not exclude recourse to force in order to implement its policy and keep the system it envisaged in place. In view of the fact that these plans were incompatible with the concept of a “democratic society” and that the real opportunities Refah had to put them into practice made the danger to democracy more tangible and more immediate, the penalty imposed on the applicants by the Constitutional Court, even in the context of the restricted margin of appreciation left to Contracting States, may reasonably be considered to have met a “pressing social need”. (β) Proportionality of the measure complained of 133. After considering the parties’ arguments, the Court sees no good reason to depart from the following considerations in the Chamber’s judgment: “82. ... The Court has previously held that the dissolution of a political party accompanied by a temporary ban prohibiting its leaders from exercising political responsibilities was a drastic measure and that measures of such severity might be applied only in the most serious cases (see the previously cited Socialist Party and Others v. Turkey judgment, p. 1258, § 51). In the present case it has just found that the interference in question met a ‘pressing social need’. It should also be noted that after [Refah’s] dissolution only five of its MPs (including the applicants) temporarily forfeited their parliamentary office and their role as leaders of a political party. The 152 remaining MPs continued to sit in Parliament and pursued their political careers normally. ... The Court considers in that connection that the nature and severity of the interference are also factors to be taken into account when assessing its proportionality (see, for example, Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 64, ECHR 1999-IV).” 134. The Court also notes that the pecuniary damage alleged by the applicants was made up largely of a loss of earnings and is speculative in nature. In view of the low value of Refah’s assets, their transfer to the Treasury can have no bearing on the proportionality of the interference in issue. Moreover, the Court observes that the prohibition barring three of the applicants, Mr Necmettin Erbakan, Mr Şevket Kazan and Mr Ahmet Tekdal, from engaging in certain types of political activity for a period of five years was temporary, and that, through their speeches and the stances they adopted in their capacity as the chairman and vice-chairmen of the party, they bear the main responsibility for Refah’s dissolution. It follows that the interference in issue in the present case cannot be regarded as disproportionate in relation to the aims pursued. 4. The Court’s conclusion regarding Article 11 of the Convention 135. Consequently, following a rigorous review to verify that there were convincing and compelling reasons justifying Refah’s dissolution and the temporary forfeiture of certain political rights imposed on the other applicants, the Court considers that those interferences met a “pressing social need” and were “proportionate to the aims pursued”. It follows that Refah’s dissolution may be regarded as “necessary in a democratic society” within the meaning of Article 11 § 2. 136. Accordingly, there has been no violation of Article 11 of the Convention. II. ALLEGED VIOLATION OF ARTICLES 9, 10, 14, 17 AND 18 OF THE CONVENTION 137. The applicants further alleged the violation of Articles 9, 10, 14, 17 and 18 of the Convention. As their complaints concern the same facts as those examined under Article 11, the Court considers that it is not necessary to examine them separately. III. ALLEGED VIOLATION OF ARTICLES 1 AND 3 OFPROTOCOL No. 1 138. The applicants further submitted that the consequences of Refah’s dissolution, namely the confiscation of its assets and their transfer to the Treasury, and the ban preventing its leaders from participating in elections, had entailed breaches of Articles 1 and 3 of Protocol No. 1. 139. The Court notes that the measures complained of by the applicants were only secondary effects of Refah’s dissolution, which, as the Court has found, did not breach Article 11. Accordingly, there is no cause to examine separately the complaints in question. | The Court found no violation of Article 11 of the Convention. It considered that the acts and speeches of Refah’s members and leaders cited by the Turkish Constitutional Court had been imputable to the whole of the party, that those acts and speeches had revealed Refah’s long-term policy of setting up a regime based on sharia within the framework of a plurality of legal systems and that Refah had not excluded recourse to force in order to implement its policy. Given that those plans were incompatible with the concept of a “democratic society” and that the real opportunities Refah had had to put them into practice had made the danger to democracy tangible and immediate, the decision of the Constitutional Court, even in the context of the restricted margin of appreciation left to it, might reasonably be considered to have met a “pressing social need”. |
1,008 | Cases concerning the international military operations in Iraq during the Second Gulf War | II. RELEVANT INTERNATIONAL LAW MATERIALS A. International humanitarian law on belligerent occupation 89. The duties of an Occupying Power can be found primarily in Articles 42 to 56 of the Regulations concerning the Laws and Customs of War on Land (The Hague, 18 October 1907 ) ( “the Hague Regulations”) and Articles 27 to 34 and 47 to 78 of the Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War ( of 12 August 1949 ) ( “ the Fourth Geneva Convention”), as well as in certain provisions of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977 ( “Additional Protocol I ”). Articles 42 and 43 of the Hague Regulations provide as follows: Article 42 “ Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised. ” Article 43 “ The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” Article 64 of the Fourth Geneva Convention provides that penal laws may be repealed or suspended by the Occupying Power only where they constitute a threat to the security or an obstacle to the application of the Fourth Geneva Convention. It also details the situations in which the Occupying Power is entitled to introduce legislative measures. These are specifically : “ ... provisions which are essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them.” Agreements concluded between the Occupying Power and the local authorities cannot deprive the population of the occupied territory of the protection afforded by international humanitarian law and protected persons themselves can in no circumstances renounce their rights (Fourth Geneva Convention, Articles 8 and 47 ). Occupation does not create any change in the status of the territory (see Article 4 of Additional Protocol I), which can only be effected by a peace treaty or by annexation followed by recognition. The former sovereign remains sovereign and there is no change in the nationality of the inhabitants. B. Case-law of the International Court of Justice concerning the interrelationship between international humanitarian law and international human rights law and the extraterritorial obligations of States under international human rights law 90. In the proceedings concerning the International Court of Justice ’ s Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (9 July 2004), Israel denied that the human rights instruments to which it was a party, including the International Covenant on Civil and Political Rights, were applicable to the Occupied Palestinian Territory and asserted ( at paragraph 102) that: “humanitarian law is the protection granted in a conflict situation such as the one in the West Bank and Gaza Strip, whereas human rights treaties were intended for the protection of citizens from their own government in times of peace.” In order to determine whether the instruments were applicable in the Occupied Palestinian Territory, the International Court of Justice first addressed the issue of the relationship between international humanitarian law and international human rights law, holding as follows: “106. ... the Court considers that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights. As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law.” The International Court of Justice next considered the question whether the International Covenant on Civil and Political Rights was capable of applying outside the State ’ s national territory and whether it applied in the Occupied Palestinian Territory. It held as follows (references and citations omitted) : “ 108. The scope of application of the International Covenant on Civil and Political Rights is defined by Article 2, paragraph 1, thereof, which provides: ‘ Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. ’ This provision can be interpreted as covering only individuals who are both present within a State ’ s territory and subject to that State ’ s jurisdiction. It can also be construed as covering both individuals present within a State ’ s territory and those outside that territory but subject to that State ’ s jurisdiction. The Court will thus seek to determine the meaning to be given to this text. 109. The Court would observe that, while the jurisdiction of States is primarily territorial, it may sometimes be exercised outside the national territory. Considering the object and purpose of the International Covenant on Civil and Political Rights, it would seem natural that, even when such is the case, States Parties to the Covenant should be bound to comply with its provisions. The constant practice of the Human Rights Committee is consistent with this. Thus, the Committee has found the Covenant applicable where the State exercises its jurisdiction on foreign territory. It has ruled on the legality of acts by Uruguay in cases of arrests carried out by Uruguayan agents in Brazil or Argentina ... It decided to the same effect in the case of the confiscation of a passport by a Uruguayan consulate in Germany ... 110. The Court takes note in this connection of the position taken by Israel, in relation to the applicability of the Covenant, in its communications to the Human Rights Committee, and of the view of the Committee. In 1998, Israel stated that, when preparing its report to the Committee, it had had to face the question ‘ whether individuals resident in the occupied territories were indeed subject to Israel ’ s jurisdiction ’ for purposes of the application of the Covenant ... Israel took the position that ‘ the Covenant and similar instruments did not apply directly to the current situation in the occupied territories ’ ... The Committee, in its concluding observations after examination of the report, expressed concern at Israel ’ s attitude and pointed ‘ to the long-standing presence of Israel in [the occupied] territories, Israel ’ s ambiguous attitude towards their future status, as well as the exercise of effective jurisdiction by Israeli security forces therein ’ ... In 2003 in face of Israel ’ s consistent position, to the effect that ‘ the Covenant does not apply beyond its own territory, notably in the West Bank and Gaza ... ’, the Committee reached the following conclusion: ‘ in the current circumstances, the provisions of the Covenant apply to the benefit of the population of the occupied territories, for all conduct by the State Party ’ s authorities or agents in those territories that affect the enjoyment of rights enshrined in the Covenant and fall within the ambit of State responsibility of Israel under the principles of public international law ’ ... 111. In conclusion, the Court considers that the International Covenant on Civil and Political Rights is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory.” In addition, the International Court of Justice appeared to assume that, even in respect of extraterritorial acts, it would in principle be possible for a State to derogate from its obligations under the International Covenant on Civil and Political Rights, Article 4 § 1 of which provides: “In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.” Thus, in paragraph 136 of its Advisory Opinion, having considered whether the acts in question were justified under international humanitarian law on grounds of military exigency, the International Court of Justice held: “136. The Court would further observe that some human rights conventions, and in particular the International Covenant on Civil and Political Rights, contain provisions which States Parties may invoke in order to derogate, under various conditions, from certain of their conventional obligations. In this respect, the Court would however recall that the communication notified by Israel to the Secretary-General of the United Nations under Article 4 of the International Covenant on Civil and Political Rights concerns only Article 9 of the Covenant, relating to the right to freedom and security of person (see paragraph 127 above); Israel is accordingly bound to respect all the other provisions of that instrument.” 91. In its judgment Armed Activities on the Territory of the Congo (Democratic Republic of the Congo (DRC) v. Uganda ) of 19 December 2005, the International Court of Justice considered whether, during the relevant period, Uganda was an “Occupying Power” of any part of the territory of the Democratic Republic of the Congo, within the meaning of customary international law, as reflected in Article 42 of the Hague Regulations (§§ 172-73 of the judgment ). The International Court of Justice found that Ugandan forces were stationed in the province of Ituri and exercised authority there, in the sense that they had substituted their own authority for that of the Congolese government (§§ 174-76). The International Court of Justice continued: “178. The Court thus concludes that Uganda was the Occupying Power in Ituri at the relevant time. As such it was under an obligation, according to Article 43 of the Hague Regulations of 1907, to take all the measures in its power to restore, and ensure, as far as possible, public order and safety in the occupied area, while respecting, unless absolutely prevented, the laws in force in the DRC. This obligation comprised the duty to secure respect for the applicable rules of international human rights law and international humanitarian law, to protect the inhabitants of the occupied territory against acts of violence, and not to tolerate such violence by any third party. 179. The Court, having concluded that Uganda was an Occupying Power in Ituri at the relevant time, finds that Uganda ’ s responsibility is engaged both for any acts of its military that violated its international obligations and for any lack of vigilance in preventing violations of human rights and international humanitarian law by other actors present in the occupied territory, including rebel groups acting on their own account. 180. The Court notes that Uganda at all times has responsibility for all actions and omissions of its own military forces in the territory of the DRC in breach of its obligations under the rules of international human rights law and international humanitarian law which are relevant and applicable in the specific situation. ” The International Court of Justice established the facts relating to the serious breaches of human rights allegedly attributable to Uganda, in the occupied Ituri region and elsewhere (§§ 205-12). In order to determine whether the conduct in question constituted a breach of Uganda ’ s international obligations, the International Court of Justice recalled its finding in the above -cited Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion that both international humanitarian law and international human rights law would have to be taken into consideration and that international human rights instruments were capable of having an extraterritorial application, “particularly in occupied territories” (§ 216). The International Court of Justice next determined which were “the applicable rules of international human rights law and international humanitarian law”, by listing the international humanitarian and international human rights treaties to which both Uganda and the Democratic Republic of the Congo were party, together with the relevant principles of customary international law (§§ 217 ‑ 19). C. The duty to investigate alleged violations of the right to life in situations of armed conflict and occupation under international humanitarian law and international human rights law 92. Article 121 of the Geneva Convention (III) relative to the Treatment of Prisoners of War (of 12 August 1949) (“the Third Geneva Convention”) provides that an official enquiry must be held by the Detaining Power following the suspected homicide of a prisoner of war. Article 131 of the Fourth Geneva Convention provides: “Every death or serious injury of an internee, caused or suspected to have been caused by a sentry, another internee or any other person, as well as any death the cause of which is unknown, shall be immediately followed by an official enquiry by the Detaining Power. A communication on this subject shall be sent immediately to the Protecting Power. The evidence of any witnesses shall be taken, and a report including such evidence shall be prepared and forwarded to the said Protecting Power. If the enquiry indicates the guilt of one or more persons, the Detaining Power shall take all necessary steps to ensure the prosecution of the person or persons responsible.” The Geneva Conventions also place an obligation on each High Contracting Party to investigate and prosecute alleged grave breaches of the Conventions, including the wilful killing of protected persons (Articles 49 and 50 of the Geneva Convention (I) for the Amelioration of the Condition of the Sick and Wounded in the Field (of 12 August 1949) (“the First Geneva Convention”); Articles 50 and 51 of the Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (of 12 August 1949) (“the Second Geneva Convention”); Articles 129 and 130 of the Third Geneva Convention; and Articles 146 and 147 of the Fourth Geneva Convention). 93. In his report of 8 March 2006 on extrajudicial, summary or arbitrary executions ( E/CN.4/2006/53 ), the United Nations Special Rapporteur, Philip Alston, observed in connection with the right to life under Article 6 of the International Covenant on Civil and Political Rights in situations of armed conflict and occupation (footnotes omitted): “ 36. Armed conflict and occupation do not discharge the State ’ s duty to investigate and prosecute human rights abuses. The right to life is non-derogable regardless of circumstance. This prohibits any practice of not investigating alleged violations during armed conflict or occupation. As the Human Rights Committee has held, ‘ It is inherent in the protection of rights explicitly recognised as non-derogable ... that they must be secured by procedural guarantees ... The provisions of the [ International Covenant on Civil and Political Rights ] relating to procedural safeguards may never be made subject to measures that would circumvent the protection of non-derogable rights ’. It is undeniable that during armed conflicts circumstances will sometimes impede investigation. Such circumstances will never discharge the obligation to investigate – this would eviscerate the non-derogable character of the right to life – but they may affect the modalities or particulars of the investigation. In addition to being fully responsible for the conduct of their agents, in relation to the acts of private actors States are also held to a standard of due diligence in armed conflicts as well as peace. On a case-by-case basis a State might utilise less effective measures of investigation in response to concrete constraints. For example, when hostile forces control the scene of a shooting, conducting an autopsy may prove impossible. Regardless of the circumstances, however, investigations must always be conducted as effectively as possible and never be reduced to mere formality. ... ” 94. In its judgment in the Case of the “ Mapiripán Massacre ” v. Colombia of 15 September 2005, the Inter-American Court of Human Rights held, inter alia, in connection with the respondent State ’ s failure fully to investigate the massacre of civilians carried out by a paramilitary group with the alleged assistance of the State authorities: “ 238. In this regard, the Court recognises the difficult circumstances of Colombia, where its population and its institutions strive to attain peace. However, the country ’ s conditions, no matter how difficult, do not release a State Party to the American Convention of its obligations set forth in this treaty, which specifically continue in cases such as the instant one. The Court has argued that when the State conducts or tolerates actions leading to extra-legal executions, not investigating them adequately and not punishing those responsible, as appropriate, it breaches the duties to respect rights set forth in the Convention and to ensure their free and full exercise, both by the alleged victim and by his or her next of kin, it does not allow society to learn what happened, and it reproduces the conditions of impunity for this type of facts to happen once again.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 95. The applicants contended that their relatives were within the jurisdiction of the United Kingdom under Article 1 of the Convention at the moment of death and that, except in relation to the sixth applicant, the United Kingdom had not complied with its investigative duty under Article 2. 96. The Government accepted that the sixth applicant ’ s son had been within United Kingdom jurisdiction but denied that the United Kingdom had jurisdiction over any of the other deceased. They contended that, since the second and third applicants ’ relatives had been killed after the adoption of United Nations Security Council Resolution 1511 (see paragraph 16 above), the acts which led to their deaths were attributable to the United Nations and not to the United Kingdom. In addition, the Government contended that the fifth applicant ’ s case should be declared inadmissible for non-exhaustion of domestic remedies and that the fifth and sixth applicants no longer had victim status. A. Admissibility 1. Attribution 97. The Government pointed out that the operations that led to the deaths of the second and third applicants ’ relatives occurred after 16 October 2003, when the United Nations Security Council adopted Resolution 1511. Paragraph 13 of that Resolution authorised a Multinational Force to take “all necessary measures to contribute to the maintenance of security and stability in Iraq” (see paragraph 16 above). It followed that, in conducting the relevant operations in which the second and third applicants ’ relatives were shot, United Kingdom troops were not exercising the sovereign authority of the United Kingdom but the international authority of the Multinational Force acting pursuant to the binding decision of the United Nations Security Council. 98. The applicants stressed that the Government had not raised this argument at any stage during the domestic proceedings. Moreover, an identical argument had been advanced by the Government and rejected by the House of Lords in R. (on the application of Al-Jedda) (FC) (Appellant) v. Secretary of State for Defence (Respondent) [2007] UKHL 58. 99. The Court recalls that it is intended to be subsidiary to the national systems safeguarding human rights. It is, therefore, appropriate that the national courts should initially have the opportunity to determine questions of the compatibility of domestic law with the Convention and that, if an application is nonetheless subsequently brought before the Court, it should have the benefit of the views of the national courts, as being in direct and continuous contact with the forces of their countries. It is thus of importance that the arguments put by the Government before the national courts should be on the same lines as those put before this Court. In particular, it is not open to a Government to put to the Court arguments which are inconsistent with the position they adopted before the national courts ( see A. and Others v. the United Kingdom [GC], no. 3455/05, § 154, ECHR 2009 ). 100. The Government did not contend before the national courts that any of the killings of the applicants ’ relatives were not attributable to United Kingdom armed forces. The Court considers, therefore, that the Government are estopped from raising this objection in the present proceedings. 2. Jurisdiction 101. The Government further contended that the acts in question took place in southern Iraq and outside the United Kingdom ’ s jurisdiction under Article 1 of the Convention. The sole exception was the killing of the sixth applicant ’ s son, which occurred in a British military prison over which the United Kingdom did have jurisdiction. 102. The Court considers that the question whether the applicants ’ cases fall within the jurisdiction of the respondent State is closely linked to the merits of their complaints. It therefore joins this preliminary question to the merits. 3. Exhaustion of domestic remedies 103. The Government contended that the fifth applicant ’ s case should be declared inadmissible for non-exhaustion of domestic remedies. They pointed out that although he brought judicial review proceedings alleging breaches of his substantive and procedural rights under Articles 2 and 3, his claim was stayed pending resolution of the six test cases (see paragraph 7 3 above). After those claims had been resolved, it would have been open to the applicant to apply to the Divisional Court to lift the stay, but he did not do so. His case was not a shooting incident, and the domestic courts had not had the opportunity to consider the facts relevant to his claims that his son was within the jurisdiction of the United Kingdom and that there had been a breach of the procedural obligation. 104. The applicants invited the Court to reject this submission. A judicial - review claim had been lodged by the fifth applicant on 5 May 2004. It was, by agreement, stayed pending the outcome of the six test cases (see paragraph 73 above). The fifth applicant would have had no reasonable prospects of success if, after the House of Lords gave judgment in Al-Skeini and Others (Respondents) v. Secretary of State for Defence (Appellant) Al-Skeini and Others (Appellants) v. Secretary of State for Defence (Respondent) (Consolidated Appeals) [2007] UKHL 26, he had sought to revive and pursue his stayed judicial - review claim. The lower courts would have been bound by the House of Lords ’ interpretation of Article 1 and would have applied it so as to find that the applicant ’ s deceased son had not been within United Kingdom jurisdiction. 105. The Court observes that, according to the fifth applicant, his son died when, having been arrested by United Kingdom soldiers on suspicion of looting, he was driven in an army vehicle to the river and forced to jump in. His case is, therefore, distinguishable on its alleged facts from those of the first, second and fourth applicants, whose relatives were shot by British soldiers; the third applicant, whose wife was shot during exchange of fire between British troops and unknown gunmen; and the sixth applicant, whose son was killed while detained in a British military detention facility. It is true that the House of Lords in the Al-Skeini proceedings did not have before it a case similar to the fifth applicant ’ s, where an Iraqi civilian met his death having been taken into British military custody, but without being detained in a military prison. Nonetheless, the Court considers that the applicants are correct in their assessment that the fifth applicant would have had no prospects of success had he subsequently sought to pursue his judicial - review application in the domestic courts. Lord Brown, with whom the majority of the House of Lords agreed, made it clear that he preferred the approach to jurisdiction in the sixth applicant ’ s case taken by the Divisional Court, namely that jurisdiction arose in respect of Baha Mousa only because he died while detained in a British military prison (see paragraph 88 above). In these circumstances, the Court does not consider that the fifth applicant can be criticised for failing to attempt to revive his claim before the Divisional Court. It follows that the Government ’ s preliminary objection based on non-exhaustion of domestic remedies must be rejected. 4. Victim status 106. The Government submitted that the fifth and sixth applicants could no longer claim to be victims of any violations of their rights under Article 2, since the death of each of their sons had been fully investigated by the national authorities and compensation paid to the applicants. 107. The Court considers that this question is also closely linked and should be joined to the merits of the complaint under Article 2. 5. Conclusion on admissibility 108. The Court considers that the application raises serious questions of fact and law which are of such complexity that their determination should depend on an examination on the merits. It cannot, therefore, be considered manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established. It must therefore be declared admissible. B. Merits 1. Jurisdiction ( a ) The parties ’ submissions ( i ) The Government 109. The Government submitted that the leading authority on the concept of “jurisdiction” within the meaning of Article 1 of the Convention was the Court ’ s decision in Banković and Others (cited above). Banković and Others established that the fact that an individual had been affected by an act committed by a Contracting State or its agents was not sufficient to establish that he was within that State ’ s jurisdiction. Jurisdiction under Article 1 was “primarily” or “essentially” territorial and any extension of jurisdiction outside the territory of the Contracting State was “exceptional” and required “special justification in the particular circumstances of each case”. The Court had held in Banković and Others that the Convention rights could not be “divided and tailored”. Within its jurisdiction, a Contracting State was under an obligation to secure all the Convention rights and freedoms. The Court had also held in Banković and Others that the Convention was “ an instrument of European public order” and “ a multilateral treaty operating, subject to Article 56 of the Convention, in an essentially regional context and notably in the legal space ( espace juridique ) of the Contracting States”. The essentially territorial basis of jurisdiction reflected principles of international law and took account of the practical and legal difficulties faced by a State operating on another State ’ s territory, particularly in regions which did not share the values of the Council of Europe member States. 110. In the Government ’ s submission, the Grand Chamber in Banković and Others, having conducted a comprehensive review of the case-law, identified a limited number of exceptions to the territorial principle. The principal exception derived from the case-law on northern Cyprus and applied when a State, as a consequence of military action, exercised effective control of an area outside its national territory. Where the Court had found this exceptional basis of jurisdiction to apply, it had stressed that the State exercising effective control was thereby responsible for securing the entire range of substantive Convention rights in the territory in question (see Loizidou v. Turkey (preliminary objections), 23 March 1995, § 62, Series A no. 310; Cyprus v. Turkey [GC ], no. 25781/94, §§ 75-80, ECHR 2001 ‑ IV; Banković and Others, cited above, §§ 70-71; and Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 314-16, ECHR 2004 ‑ VII). Moreover, despite dicta to the contrary in the subsequent Chamber judgment in Issa and Others (cited above), the Grand Chamber in Banković and Others made it clear that the “effective control of an area” basis of jurisdiction could apply only within the legal space of the Convention. In addition to the control exercised by Turkey in northern Cyprus, the Court had applied this exception in relation to only one other area, Transdniestria, which also fell within the territory of another Contracting State. Any other approach would risk requiring the State to impose culturally alien standards, in breach of the principle of sovereign self ‑ determination. 111. According to the Government, the Court ’ s case-law on Article 56 of the Convention further indicated that a State would not be held to exercise Article 1 jurisdiction over an overseas territory merely by virtue of exercising effective control there ( see Quark Fishing Ltd v. the United Kingdom (dec.), no. 15305/06, ECHR 2006 ‑ XIV ). If the “ effective control of territory ” exception were held to apply outside the territories of the Contracting States, this would lead to the conclusion that a State was free to choose whether or not to extend the Convention and its Protocols to a non ‑ metropolitan territory outside the Convention “ espace juridique ” over which it might in fact have exercised control for decades, but was not free to choose whether to extend the Convention to territories outside that space over which it exercised effective control as a result of military action only temporarily, for example only until peace and security could be restored. 112. The Government submitted that, since Iraq fell outside the legal space of the Convention, the “effective control of an area” exceptional basis of jurisdiction could not apply. In any event, the United Kingdom did not have “effective control” over any part of Iraq during the relevant time. This was the conclusion of the domestic courts, which had all the available evidence before them. The number of Coalition Forces, including United Kingdom forces, was small: in south -east Iraq, an area of 96,000 square kilometres with a population of 4.6 million, there were 14,500 Coalition troops, including 8,150 United Kingdom troops. United Kingdom troops operated in the Al - Basra and Maysan provinces, which had a population of 2.76 million for 8,119 troops. United Kingdom forces in Iraq were faced with real practical difficulties in restoring conditions of security and stability so as to enable the Iraqi people freely to determine their political future. The principal reason for this was that at the start of the occupation there was no competent system of local law enforcement in place, while at the same time there was widespread violent crime, terrorism and tribal fighting involving the use of light and heavy weapons. 113. Governing authority in Iraq during the occupation was exercised by the Coalition Provisional Authority (CPA), which was governed by United States Ambassador Paul Bremer and which was not a subordinate authority of the United Kingdom. In addition, from July 2003 there was a central Iraqi Governing Council and a number of local Iraqi councils. The status of the CPA and Iraqi administration was wholly different from that of the “Turkish Republic of Northern Cyprus” (the “ TRNC ” ) in Cyprus or the “Moldovan Republic of Transdniestria” (the “ MRT ” ) in Transdniestria, which were both characterised by the Court as “self ‑ proclaimed authorities which are not recognised by the international community”. The authority of the CPA and the Iraqi administration was recognised by the international community, through the United Nations Security Council. Moreover, the purpose of the United Kingdom ’ s joint occupation of Iraq was to transfer authority as soon as possible to a representative Iraqi administration. In keeping with this purpose, the occupation lasted for only just over a year. 114. In the Government ’ s submission, the fact that between May 2003 and June 2004 the United Kingdom was an Occupying Power within the meaning of the Hague Regulations (see paragraph 89 above) did not, in itself, give rise to an obligation to secure the Convention rights and freedoms to the inhabitants of south -east Iraq. As an Occupying Power the United Kingdom did not have sovereignty over Iraq and was not entitled to treat the area under its occupation as its own territory or as a colony subject to its complete power and authority. The Hague Regulations did not confer on the United Kingdom the power to amend the laws and Constitution of Iraq so as to conform to the United Kingdom ’ s own domestic law or regional multilateral international obligations such as the Convention. On the contrary, the Hague Regulations set limits on the United Kingdom ’ s powers, notably the obligation to respect the laws in force in Iraq “ unless absolutely prevented”. Moreover, the resolutions passed by the United Nations Security Council recognised that governing authority in Iraq during the occupation was to be exercised by the CPA and that the aim of the occupation was to transfer authority as soon as possible to a representative Iraqi administration. It followed that the international legal framework, far from establishing that the United Kingdom was obliged to secure Convention rights in Iraq, established instead that the United Kingdom would have been acting contrary to its international obligations if it had sought to modify the Constitution of Iraq so as to comply with the Convention. In any event, the Court ’ s case-law demonstrated that it approached the question whether a State exercised jurisdiction extraterritorially as one of fact, informed by the particular nature and history of the Convention. The obligations imposed by the Fourth Geneva Convention and the Hague Regulations were carefully tailored to the circumstances of occupation and could not in themselves have consequences for the very different issue of jurisdiction under the Convention. 115. The Government accepted that it was possible to identify from the case-law a number of other exceptional categories where jurisdiction could be exercised by a State outside its territory and outside the Convention region. In Banković and Others (cited above) the Grand Chamber referred to other cases involving the activities of diplomatic or consular agents abroad and on board craft and vessels registered in or flying the flag of the State. In Banković and Others, the Court also cited as an example Drozd and Janousek v. France and Spain ( 26 June 1992, Series A no. 240 ), which demonstrated that jurisdiction could be exercised by a State if it brought an individual before its own court, sitting outside its territory, to apply its own criminal law. In its judgment in Öcalan (cited above, § 91), the Grand Chamber held that Turkey had exercised jurisdiction over the applicant when he was “arrested by members of the Turkish security forces inside an aircraft registered in Turkey in the international zone of Nairobi Airport” and “physically forced to return to Turkey by Turkish officials and was under their authority and control following his arrest and return to Turkey”. In the Government ’ s submission, none of these exceptions applied in the first, second, third and fourth applicants ’ cases. 116. The Government contended that the applicants ’ submission that, in shooting their relatives, the United Kingdom soldiers exercised “authority and control” over the deceased, so as to bring them within the United Kingdom ’ s jurisdiction, was directly contrary to the decision in Banković and Others (cited above). In Banković and Others, the Grand Chamber considered the applicability of the Convention to extraterritorial military operations generally, having regard, inter alia, to State practice and Article 15 of the Convention, and concluded that the Convention did not apply to the military action of the respondent States which resulted in those applicants ’ relatives ’ deaths. Equally, in the present case, the military action of United Kingdom soldiers in shooting the applicants ’ relatives while carrying out military security operations in Iraq did not constitute an exercise of jurisdiction over them. No distinction could be drawn in this respect between a death resulting from a bombing and one resulting from a shooting in the course of a ground operation. 117. The Government rejected the applicants ’ argument that a jurisdictional link existed because the United Kingdom soldiers were exercising “legal authority” over the deceased, derived from the obligation under the Hague Regulations to ensure “public order and safety” in the occupied territory. The meaning of Article 1 of the Convention was autonomous and could not be determined by reference to wholly distinct provisions of international humanitarian law. Moreover, the duty relied on was owed to every Iraqi citizen within the occupied territory and, if the applicants were correct, the United Kingdom would have been required to secure Convention rights to them all. Nor could it be said that United Kingdom troops at the relevant time were exercising “public powers ” pursuant to treaty arrangements (see Banković and Others, cited above, § 73). In fact, United Kingdom troops were exercising military power in an effort to create a situation in which governmental functions could be exercised and the rule of law could properly operate. No sensible distinction could be drawn between the different types of military operation undertaken by them. There was no basis for concluding that the applicability of the Convention should turn upon the particular activity that a soldier was engaged in at the time of the alleged violation, whether street patrol, ground offensive or aerial bombardment. 118. In conclusion, the Government submitted that the domestic courts were correct that the United Kingdom did not exercise any Article 1 jurisdiction over the relatives of the first to fourth applicants at the time of their deaths. The cases could not be distinguished from that of the deceased in Banković and Others (cited above). Nor were the facts of the fifth applicant ’ s case sufficient to distinguish it in this respect from those of the first to fourth applicants. The fifth applicant ’ s son was not arrested in circumstances similar to those which founded jurisdiction in Öcalan (cited above). As a suspected looter, in the situation of extreme public disorder in the immediate aftermath of the cessation of major combat activities, he was physically required by United Kingdom soldiers to move from the place of looting to another location. The acts of the United Kingdom soldiers involved an assertion of military power over the fifth applicant ’ s son, but no more. The Government accepted that the sixth applicant ’ s son was within United Kingdom jurisdiction when he died, but only on the basis found by the Divisional Court and subsequently by Lord Brown, with whom Lords Rodger and Carswell and Baroness Hale agreed, namely that jurisdiction was established when the deceased was detained in a United Kingdom-run military detention facility located in a United Kingdom base, essentially by analogy with the extraterritorial exception made for embassies. At the hearing before the Court, counsel for the Government confirmed that it was the Government ’ s position that, for example, an individual being taken to a British detention facility on foreign soil in a British military vehicle would not fall within the United Kingdom ’ s jurisdiction until the moment the vehicle and individual passed within the perimeter of the facility. 119. This did not mean that United Kingdom troops were free to act with impunity in Iraq. As Lord Bingham observed in his opinion in the House of Lords, the acts of the United Kingdom forces were subject to and regulated by international humanitarian law. United Kingdom soldiers in Iraq were also subject to United Kingdom domestic criminal law and could be prosecuted in the national courts. The International Criminal Court had jurisdiction to prosecute war crimes where the State was unwilling or unable to prosecute. Civil claims in tort could also be brought in the United Kingdom courts against United Kingdom agents and authorities alleged to have caused injury to individuals in Iraq. ( ii ) The applicants 120. The applicants accepted that jurisdiction under Article 1 was essentially territorial. However, they underlined that it was not exclusively so and that it was possible for a Contracting State to exercise jurisdiction extraterritorially. The procedure under Article 56 allowed States to extend the reach of the Convention to other territories, with due regard to local requirements, by means of a notified declaration. However, it was clear from the case-law that Article 56 was not an exclusive mechanism for extraterritorial applicability. 121. The applicants submitted that the case-law of the Court and Commission recognised the exercise by States of jurisdiction extraterritorially through the principles of both “State agent authority” and “effective control of an area”. The first reference to “State agent authority” jurisdiction was in the Commission ’ s admissibility decision in Cyprus v. Turkey ( nos. 6780/74 and 6950/75, Commission decision of 26 May 1975, DR 2, p. 125, at p. 136 ), when the Commission observed that “authorised agents of the State ... not only remain under its jurisdiction when abroad but bring any other persons or property ‘ within the jurisdiction ’ of that State, to the extent that they exercise authority over such persons or property”. This principle was subsequently applied in Cyprus v. Turkey ( nos. 6780/74 and 6950/75, Commission ’ s report of 10 July 1976 ), when the Commission found that the actions of Turkish soldiers in Cyprus involved the exercise of Turkish jurisdiction. These actions comprised the killing of civilians, including individuals subject to the order of an officer and others shot while attempting to recover possessions from property under Turkish control; the rape of women in empty houses and on the street; the arbitrary detention of civilians; cruelty to detainees; the displacement of civilians; and the military confiscation of property. Since Turkey did not accept the Court ’ s jurisdiction until 1990, the case was never examined by the Court. The Commission ’ s report, however, did not support the suggestion that military custodial authority alone constituted a relationship of sufficient authority and control. 122. The applicants pointed out that in the later cases against Turkey concerning northern Cyprus which were examined by the Commission and the Court during the 1990s, Turkey accepted that its jurisdiction under Article 1 would be engaged in respect of the direct acts of Turkish military personnel. However, the Turkish Government shifted ground and argued that it did not have jurisdiction because the acts in question were not committed by Turkish agents but were instead attributable to an autonomous local administration installed in 1983, the “TRNC”. The Court, in Loizidou (preliminary objections) and in Cyprus v. Turkey ( both cited above ), countered this argument by elaborating the principle of “effective control of an area”, which applied ( see Loizidou (preliminary objections), § 62 ) : “when as a consequence of military action – whether lawful or unlawful – [a Contracting State] exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration. ” In these cases, the Court did not give any indication that the “State agent authority” principle had been supplanted. In fact, in Loizidou (preliminary objections), before setting out the principle of “effective control of an area” jurisdiction, the Court observed (§ 6 2 ) that: “In addition, the responsibility of Contracting Parties can be involved because of acts of their authorities, whether performed within or outside national boundaries, which produce effects outside their own territory (see the Drozd and Janousek v. France and Spain judgment of 26 June 1992, Series A no. 240, p. 29, § 91). ” Furthermore, its conclusion on the question whether the alleged violation was capable of falling within Turkish jurisdiction relied on both grounds equally (§ 63): “In this connection the respondent Government have acknowledged that the applicant ’ s loss of control of her property stems from the occupation of the northern part of Cyprus by Turkish troops and the establishment there of the ‘ TRNC ’. Furthermore, it has not been disputed that the applicant was prevented by Turkish troops from gaining access to her property.” In the Court ’ s subsequent case-law, the two principles had continued to be placed side by side (see Banković and Others, cited above, §§ 69-73; Issa and Others, cited above, §§ 69-71; Andreou v. Turkey (dec.), no. 45653/99, 3 June 2008; and Solomou and Others v. Turkey, no. 36832/97, §§ 44-45, 24 June 2008 ). There was no precedent of the Court to suggest that “ State agent authority ” jurisdiction was inapt as a means of analysing direct actions by military State agents exercising authority. 123. The applicants argued that their dead family members fell within the United Kingdom ’ s jurisdiction under the “ State agent authority ” principle. The Government had accepted, in respect of the sixth applicant ’ s son, that the exercise of authority and control by British military personnel in Iraq was capable of engaging the United Kingdom ’ s extraterritorial jurisdiction. However, jurisdiction in extraterritorial detention cases did not rest on the idea of a military prison as a quasi-territorial enclave. Jurisdiction in respect of the sixth applicant ’ s son would equally have arisen had he been tortured and killed while under arrest at the hotel where he worked or in a locked army vehicle parked outside. Moreover, the authority and control exercised by military personnel was not limited in principle to actions as custodians, even if the arrest and detention of persons outside State territory could be seen as a classic instance of State agent authority (as was argued by the respondent Governments in Banković and Others, cited above, § 37). 124. The applicants submitted that the deceased relatives of all six applicants fell within United Kingdom jurisdiction by virtue of the authority and control exercised over them by United Kingdom State agents. They emphasised that British armed forces had responsibility for public order in Iraq, maintaining the safety and security of local civilians and supporting the civil administration. In performing these functions, the British armed forces were operating within the wider context of the United Kingdom ’ s occupation of south -east Iraq. The control and authority was also exercised through the CPA South Regional Office, which was staffed primarily by British personnel. The individuals killed were civilians to whom the British armed forces owed the duty of safety and security. There was thus a particular relationship of authority and control between the soldiers and the civilians killed. To find that these individuals fell within the authority of the United Kingdom armed forces would not require the acceptance of the impact ‑ based approach to jurisdiction which was rejected in Banković and Others (cited above), but would instead rest on a particular relationship of authority and control. In the alternative, the applicants argued that, at least in respect of the deceased relatives of the second, fourth, fifth and sixth applicants, the British soldiers exercised sufficient authority and control to bring the victims within the United Kingdom ’ s jurisdiction. 125. The applicants further contended that their dead relatives fell within United Kingdom jurisdiction because, at the relevant time, the United Kingdom was in effective control of south -east Iraq. It was their case that where, as a matter of international law, territory was occupied by a State as an Occupying Power, because that territory was actually placed under the authority of that State ’ s hostile army (see Article 42 of the Hague Regulations; paragraph 89 above), that was sufficient to constitute extraterritorial jurisdiction under Article 1 of the Convention. This consequence of belligerent occupation reflected the approach in international law, both as regards extraterritorial jurisdiction and extraterritorial application of human rights based on “jurisdiction”. 126. They rejected the idea that the “effective control of an area” basis of jurisdiction could apply only within the legal space of the Convention. Furthermore, they reasoned that to require a State to exert complete control, similar to that exercised within its own territory, would lead to the perverse position whereby facts disclosing a violation of the Convention would, instead of entitling the victim to a remedy, form the evidential basis for a finding that the State did not exercise jurisdiction. Similarly, defining the existence of control over an area by reference to troop numbers alone would be uncertain, allow evasion of responsibility and promote arbitrariness. The application of the Convention should influence the actions of the Contracting States, prompting careful consideration of military intervention and ensuring sufficient troop numbers to meet their international obligations. The applicants endorsed the approach suggested by Sedley LJ in the Court of Appeal (see paragraph 80 above), that a Contracting State in military occupation was under a duty to do everything possible to keep order and protect essential civil rights. While the Court ’ s case-law (the northern Cyprus cases and Ilaşcu and Others, cited above ) included details of numbers of military personnel deployed, this was relevant to establishing whether a territory had actually been placed under the authority of a hostile army, in cases where the respondent States (Turkey and Russia) denied being in occupation. Where, as in the present case, the respondent State accepted that it was in occupation of the territory, such an assessment was unnecessary. 127. The applicants argued that the duty of an occupying State under international humanitarian law to apply the domestic law of the territorial State and not to impose its own law could not be used to evade jurisdiction under the Convention, since the “effective control of an area” basis of jurisdiction applied also to unlawful occupation. They referred to the judgment of the International Court of Justice in Armed Activities on the Territory of the Congo and its Advisory Opinion Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (see paragraphs 9 0 - 9 1 above), where it found that the occupying State was under a duty to apply international human rights law. The clear principle emerging from these cases was that belligerent occupation in international law was a basis for the recognition of extraterritorial human rights jurisdiction. ( iii ) The third - party interveners 128. The third-party interveners (see paragraph 6 above) emphasised that the Convention was adopted in the aftermath of the events in Europe of the 1930s and 1940s, when appalling human rights abuses were carried out by military forces in occupied territories. It was inconceivable that the drafters of the Convention should have considered that the prospective responsibilities of States should be confined to violations perpetrated on their own territories. Moreover, public international law required that the concept of “jurisdiction” be interpreted in the light of the object and purpose of the particular treaty. The Court had repeatedly had regard to the Convention ’ s special character as an instrument for human rights protection. It was relevant that one of the guiding principles under international human rights law, which had been applied by the United Nations Human Rights Committee and the International Court of Justice when considering the conduct of States outside their territory, was the need to avoid unconscionable double standards, by allowing a State to perpetrate violations on foreign territory which would not be permitted on its own territory. 129. The third-party interveners further emphasised that it was common ground between the international and regional courts and human rights bodies that, when determining whether the acts or omissions of a State ’ s agents abroad fall within its “jurisdiction”, regard must be had to the existence of control, authority or power of that State over the individual in question. When the agents of the State exercised such control, authority or power over an individual outside its territory, that State ’ s obligation to respect human rights continued. This was a factual test, to be determined with regard to the circumstances of the particular act or omission of the State agents. Certain situations, such as military occupations, created a strong presumption that individuals were under the control, authority or power of the occupying State. Indeed, one principle which emerged from the case-law of the International Court of Justice, inter alia (see paragraphs 90-91 above), was that once a situation was qualified as an occupation within the meaning of international humanitarian law, there was a strong presumption of “jurisdiction” for the purposes of the application of human rights law. (b) The Court ’ s assessment (i) General principles relevant to jurisdiction under Article 1 of the Convention 130. Article 1 of the Convention reads as follows: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.” As provided by this Article, the engagement undertaken by a Contracting State is confined to “securing” (“ reconnaître ” in the French text) the listed rights and freedoms to persons within its own “jurisdiction” (see Soering v. the United Kingdom, 7 July 1989, § 8 6, Series A no. 161, and Banković and Others, cited above, § 66 ). “Jurisdiction” under Article 1 is a threshold criterion. The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention (see Ilaşcu and Others, cited above, § 311 ). (α) The territorial principle 131. A State ’ s jurisdictional competence under Article 1 is primarily territorial (see Soering, cited above, § 8 6; Banković and Others, cited above, §§ 61 and 67; and Ilaşcu and Others, cited above, § 312). Jurisdiction is presumed to be exercised normally throughout the State ’ s territory ( see Ilaşcu and Others, cited above, § 312, and Assanidze v. Georgia [GC], no. 71503/01, § 139, ECHR 2004 ‑ II ). Conversely, acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction within the meaning of Article 1 only in exceptional cases ( see Banković and Others, cited above, § 67). 132. To date, the Court in its case-law has recognised a number of exceptional circumstances capable of giving rise to the exercise of jurisdiction by a Contracting State outside its own territorial boundaries. In each case, the question whether exceptional circumstances exist which require and justify a finding by the Court that the State was exercising jurisdiction extraterritorially must be determined with reference to the particular facts. (β) State agent authority and control 133. The Court has recognised in its case-law that, as an exception to the principle of territoriality, a Contracting State ’ s jurisdiction under Article 1 may extend to acts of its authorities which produce effects outside its own territory (see Drozd and Janousek, cited above, § 91; Loizidou (preliminary objections), cited above, § 62; Loizidou v. Turkey (merits), 18 December 1996, § 52, Reports of Judgments and Decisions 1996 ‑ VI; and Banković and Others, cited above, § 69). The statement of principle, as it appears in Drozd and Janousek and the other cases just cited, is very broad: the Court states merely that the Contracting Party ’ s responsibility “can be involved” in these circumstances. It is necessary to examine the Court ’ s case-law to identify the defining principles. 134. Firstly, it is clear that the acts of diplomatic and consular agents, who are present on foreign territory in accordance with provisions of international law, may amount to an exercise of jurisdiction when these agents exert authority and control over others ( see Banković and Others, cited above, § 73; see also X. v. Germany, no. 1611/62, Commission decision of 25 September 1965, Yearbook 8, p. 158; X. v. the United Kingdom, no. 7547/76, Commission decision of 15 December 1977, DR 12, p. 73; and M. v. Denmark, no. 17392/90, Commission decision of 14 October 199 2, DR 73, p. 193 ). 135. Secondly, the Court has recognised the exercise of extraterritorial jurisdiction by a Contracting State when, through the consent, invitation or acquiescence of the Government of that territory, it exercises all or some of the public powers normally to be exercised by that Government ( see Banković and Others, cited above, § 71). Thus, where, in accordance with custom, treaty or other agreement, authorities of the Contracting State carry out executive or judicial functions on the territory of another State, the Contracting State may be responsible for breaches of the Convention thereby incurred, as long as the acts in question are attributable to it rather than to the territorial State ( see Drozd and Janousek, cited above; Gentilhomme and Others v. France, nos. 48205/99, 48207/99 and 48209/99, 14 May 2002; and X. and Y. v. Switzerland, nos. 7289/75 and 7349/76, Commission decision of 14 July 1977, DR 9, p. 57). 136. In addition, the Court ’ s case-law demonstrates that, in certain circumstances, the use of force by a State ’ s agents operating outside its territory may bring the individual thereby brought under the control of the State ’ s authorities into the State ’ s Article 1 jurisdiction. This principle has been applied where an individual is taken into the custody of State agents abroad. For example, in Öcalan (cited above, § 91 ), the Court held that “directly after being handed over to the Turkish officials by the Kenyan officials, the applicant was effectively under Turkish authority and therefore within the ‘ jurisdiction ’ of that State for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory”. In Issa and Others (cited above), the Court indicated that, had it been established that Turkish soldiers had taken the applicants ’ relatives into custody in northern Iraq, taken them to a nearby cave and executed them, the deceased would have been within Turkish jurisdiction by virtue of the soldiers ’ authority and control over them. In Al-Saadoon and Mufdhi v. the United Kingdom ( (dec.), no. 61498/08, §§ 86-89, 30 June 2009 ), the Court held that two Iraqi nationals detained in British-controlled military prisons in Iraq fell within the jurisdiction of the United Kingdom, since the United Kingdom exercised total and exclusive control over the prisons and the individuals detained in them. Finally, in Medvedyev and Others v. France ( [GC], no. 3394/03, § 67, ECHR 2010 ), the Court held that the applicants were within French jurisdiction for the purposes of Article 1 of the Convention by virtue of the exercise by French agents of full and exclusive control over a ship and its crew from the time of its interception in international waters. The Court does not consider that jurisdiction in the above cases arose solely from the control exercised by the Contracting State over the buildings, aircraft or ship in which the individuals were held. What is decisive in such cases is the exercise of physical power and control over the person in question. 137. It is clear that, whenever the State, through its agents, exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section I of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Convention rights can be “divided and tailored” (compare Banković and Others, cited above, § 75). (γ) Effective control over an area 138. Another exception to the principle that jurisdiction under Article 1 is limited to a State ’ s own territory occurs when, as a consequence of lawful or unlawful military action, a Contracting State exercises effective control of an area outside that national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control, whether it be exercised directly, through the Contracting State ’ s own armed forces, or through a subordinate local administration ( see Loizidou (preliminary objections), cited above, § 62; Cyprus v. Turkey, cited above, § 76; Banković and Others, cited above, § 70; Ilaşcu and Others, cited above, §§ 314-16; and Loizidou (merits), cited above, § 52). Where the fact of such domination over the territory is established, it is not necessary to determine whether the Contracting State exercises detailed control over the policies and actions of the subordinate local administration. The fact that the local administration survives as a result of the Contracting State ’ s military and other support entails that State ’ s responsibility for its policies and actions. The controlling State has the responsibility under Article 1 to secure, within the area under its control, the entire range of substantive rights set out in the Convention and those additional Protocols which it has ratified. It will be liable for any violations of those rights ( see Cyprus v. Turkey, cited above, § § 76- 77). 139. It is a question of fact whether a Contracting State exercises effective control over an area outside its own territory. In determining whether effective control exists, the Court will primarily have reference to the strength of the State ’ s military presence in the area (see Loizidou (merits), cited above, §§ 16 and 56, and Ilaşcu and Others, cited above, § 387). Other indicators may also be relevant, such as the extent to which its military, economic and political support for the local subordinate administration provides it with influence and control over the region (see Ilaşcu and Others, cited above, §§ 388-94). 140. The “effective control” principle of jurisdiction set out above does not replace the system of declarations under Article 56 of the Convention (formerly Article 63) which the States decided, when drafting the Convention, to apply to territories overseas for whose international relations they were responsible. Article 56 § 1 provides a mechanism whereby any State may decide to extend the application of the Convention, “with due regard ... to local requirements ”, to all or any of the territories for whose international relations it is responsible. The existence of this mechanism, which was included in the Convention for historical reasons, cannot be interpreted in present conditions as limiting the scope of the term “jurisdiction” in Article 1. The situations covered by the “effective control” principle are clearly separate and distinct from circumstances where a Contracting State has not, through a declaration under Article 56, extended the Convention or any of its Protocols to an overseas territory for whose international relations it is responsible (see Loizidou (preliminary objections), cited above, §§ 86-89, and Quark Fishing Ltd, cited above). (δ) The legal space (“ espace juridique ”) of the Convention 141. The Convention is a constitutional instrument of European public order (see Loizidou (preliminary objections), cited above, § 75). It does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States (see Soering, cited above, § 86). 142. The Court has emphasised that, where the territory of one Convention State is occupied by the armed forces of another, the occupying State should in principle be held accountable under the Convention for breaches of human rights within the occupied territory, because to hold otherwise would be to deprive the population of that territory of the rights and freedoms hitherto enjoyed and would result in a “vacuum” of protection within the “legal space of the Convention ” (see Cyprus v. Turkey, cited above, § 78, and Banković and Others, cited above, § 80). However, the importance of establishing the occupying State ’ s jurisdiction in such cases does not imply, a contrario, that jurisdiction under Article 1 of the Convention can never exist outside the territory covered by the Council of Europe member States. The Court has not in its case-law applied any such restriction (see, among other examples, Öcalan; Issa and Others; Al ‑ Saadoon and Mufdhi; and Medvedyev and Others, all cited above). (ii) Application of these principles to the facts of the case 143. In determining whether the United Kingdom had jurisdiction over any of the applicants ’ relatives when they died, the Court takes as its starting - point that, on 20 March 2003, the United Kingdom together with the United States of America and their Coalition partners, through their armed forces, entered Iraq with the aim of displacing the Ba ’ ath regime then in power. This aim was achieved by 1 May 2003, when major combat operations were declared to be complete and the United States of America and the United Kingdom became Occupying Powers within the meaning of Article 42 of the Hague Regulations (see paragraph 89 above). 144. As explained in the letter dated 8 May 2003 sent jointly by the Permanent Representatives of the United Kingdom and the United States of America to the President of the United Nations Security Council (see paragraph 11 above), the United States of America and the United Kingdom, having displaced the previous regime, created the CPA “to exercise powers of government temporarily”. One of the powers of government specifically referred to in the letter of 8 May 2003 to be exercised by the United States of America and the United Kingdom through the CPA was the provision of security in Iraq, including the maintenance of civil law and order. The letter further stated that “ [t] he 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 ... assuming immediate control of Iraqi institutions responsible for military and security matters ”. 145. In its first legislative act, CPA Regulation No. 1 of 16 May 2003, the CPA declared that it would “ exercise powers of government temporarily in order to provide for the effective administration of Iraq during the period of transitional administration, to restore conditions of security and stability ” (see paragraph 12 above). 146. The contents of the letter of 8 May 2003 were noted by the Security Council in Resolution 1483, adopted on 22 May 2003. This Resolution gave further recognition to the security role which had been assumed by the United States of America and the United Kingdom when, in paragraph 4, it called upon the Occupying Powers “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 ” (see paragraph 14 above). 147. During this period, the United Kingdom had command of the military division Multinational Division (South - East), which included the province of Al-Basra, where the applicants ’ relatives died. From 1 May 2003 onwards the British forces in Al-Basra took responsibility for maintaining security and supporting the civil administration. Among the United Kingdom ’ s security tasks were patrols, arrests, anti-terrorist operations, policing of civil demonstrations, protection of essential utilities and infrastructure and protecting police stations (see paragraph 21 above). 148. In July 2003 the Governing Council of Iraq was established. The CPA remained in power, although it was required to consult with the Governing Council (see paragraph 15 above). In Resolution 1511, adopted on 16 October 2003, the United Nations Security Council underscored the temporary nature of the exercise by the CPA of the authorities and responsibilities set out in Resolution 1483. It also authorised “a Multinational Force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq” (see paragraph 16 above). United Nations Security Council Resolution 1546, adopted on 8 June 2004, endorsed “the formation of a sovereign interim government of Iraq ... which will assume full responsibility and authority by 30 June 2004 for governing Iraq” (see paragraph 18 above). In the event, the occupation came to an end on 28 June 2004, when full authority for governing Iraq passed to the interim Iraqi government from the CPA, which then ceased to exist (see paragraph 19 above). (iii) Conclusion as regards jurisdiction 149. It can be seen, therefore, that following the removal from power of the Ba ’ ath regime and until the accession of the interim Iraqi government, the United Kingdom (together with the United States of America ) assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government. In particular, the United Kingdom assumed authority and responsibility for the maintenance of security in south -east Iraq. In these exceptional circumstances, the Court considers that the United Kingdom, through its soldiers engaged in security operations in Basra during the period in question, exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom for the purposes of Article 1 of the Convention. 150. Against this background, the Court recalls that the deaths at issue in the present case occurred during the relevant period: the fifth applicant ’ s son died on 8 May 2003; the first and fourth applicants ’ brothers died in August 2003; the sixth applicant ’ s son died in September 2003; and the spouses of the second and third applicants died in November 2003. It is not disputed that the deaths of the first, second, fourth, fifth and sixth applicants ’ relatives were caused by the acts of British soldiers during the course of or contiguous to security operations carried out by British forces in various parts of Basra City. It follows that in all these cases there was a jurisdictional link for the purposes of Article 1 of the Convention between the United Kingdom and the deceased. The third applicant ’ s wife was killed during an exchange of fire between a patrol of British soldiers and unidentified gunmen and it is not known which side fired the fatal bullet. The Court considers that, since the death occurred in the course of a United Kingdom security operation, when British soldiers carried out a patrol in the vicinity of the applicant ’ s home and joined in the fatal exchange of fire, there was a jurisdictional link between the United Kingdom and this deceased also. 2. Alleged breach of the investigative duty under Article 2 of the Convention 151. The applicants did not complain before the Court of any substantive breach of the right to life under Article 2. Instead they complained that the Government had not fulfilled its procedural duty to carry out an effective investigation into the killings. Article 2 of the Convention provides as follows: “1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” ( a ) The parties ’ submissions ( i ) The Government 152. The Government reasoned that the procedural duty under Article 2 had to be interpreted in harmony with the relevant principles of international law. Moreover, any implied duty should not be interpreted in such a way as to place an impossible or disproportionate burden on a Contracting State. The United Kingdom did not have full control over the territory of Iraq and, in particular, did not have legislative, administrative or judicial competence. If the investigative duty were to apply extraterritorially, it had to take account of these circumstances, and also of the very difficult security conditions in which British personnel were operating. 153. The Government accepted that the investigations into the deaths of the first, second and third applicants ’ relatives were not sufficiently independent for the purposes of Article 2, since in each case the investigation was carried out solely by the Commanding Officers of the soldiers alleged to be responsible. However, they submitted that the investigations carried out in respect of the deaths of the fourth and fifth applicants ’ relatives complied with Article 2. Nor had there been any violation of the investigative duty in respect of the sixth applicant; indeed, he did not allege that the investigation in his case had failed to comply with Article 2. 154. The Government emphasised, generally, that the Royal Military Police investigators were institutionally independent of the armed forces. They submitted that the Court of Appeal had been correct in concluding that the Special Investigation Branch of the Royal Military Police was capable of conducting independent investigations (see paragraph 8 2 above), although Brooke LJ had also commented that the task of investigating loss of life “must be completely taken away from the military chain of command and vested in the [Royal Military Police] ”. The role of the military chain of command in notifying the Special Investigation Branch of an incident requiring investigation, and its subsequent role in referring cases investigated by the Special Investigation Branch to the Army Prosecuting Authority did not, however, mean that those investigations lacked independence as required by Articles 2 or 3 (see Cooper v. the United Kingdom [GC], no. 48843/99, §§ 108-15, ECHR 2003 ‑ XII; McKerr v. the United Kingdom, no. 28883/95, ECHR 2001 ‑ III; and Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, ECHR 2002 ‑ II). The Army Prosecuting Authority was staffed by legally qualified officers. It was wholly independent from the military chain of command in relation to its prosecuting function. Its independence had been recognised by the Court in Cooper (cited above). 155. The Government pointed out that an investigation into the fourth applicant ’ s brother ’ s death was commenced by the Special Investigation Branch on 29 August 2003, five days after the shooting on 14 August. The Special Investigation Branch recovered fragments of bullets, empty bullet cases and the vehicle, and took digital photographs of the scene. They interviewed the doctors who treated the deceased and took statements. Nine military witnesses involved in the incident were interviewed and had statements taken and four further witnesses were interviewed but had no evidence to offer. The investigation was discontinued on 17 September 2003 after the Brigade Commander expressed the view that the shooting fell within the rules of engagement and was lawful. However, the decision to discontinue was taken by a Special Investigation Branch senior investigating officer, who was independent of the military chain of command. The investigation was reopened on 7 June 2004 and completed on 3 December 2004, despite the difficult security conditions in Iraq at that time. The case was then referred to the Army Prosecuting Authority, which decided not to bring criminal charges as there was no realistic prospect of proving that the soldier who shot the fourth applicant ’ s brother had not been acting in self ‑ defence. The Attorney General was notified and he decided not to exercise his jurisdiction to order a prosecution. In the Government ’ s submission, the investigation was effective, in that it identified the person responsible for the death and established that the laws governing the use of force had been followed. The investigation was reasonably prompt, in particular when regard was had to the extreme difficulty of investigating in the extraterritorial context. If the halting of the initial investigation gave rise to any lack of independence, this was cured by the subsequent investigation and the involvement of the Army Prosecuting Authority and the Attorney General (see Gül v. Turkey, no. 22676/93, §§ 9 2-95, 14 December 2000; see also McCann and Others v. the United Kingdom, 27 September 1995, §§ 157 and 162- 64, Series A no. 324). 156. The Government submitted that there was no evidence, in the fifth applicant ’ s case, that the military chain of command interfered with the Special Investigation Branch investigation so as to compromise its independence. On the contrary, after receiving the investigation report the military chain of command referred the case to the Army Prosecuting Authority who in turn referred it for independent criminal trial. There was no undue delay in the investigation, in particular having regard to the difficulties faced by United Kingdom investigators investigating an incident which took place in Iraq eight days after the cessation of major combat operations. The fifth applicant was fully and sufficiently involved in the investigation. His participation culminated in the United Kingdom authorities flying him to England so that he could attend the court martial and give evidence. In addition to the Special Investigation Branch investigation and the criminal proceedings against the four soldiers, the fifth applicant brought civil proceedings in the United Kingdom domestic courts, claiming damages for battery and assault, negligence and misfeasance in public office. In those proceedings, he gave an account of his son ’ s death and the investigation which followed it. The proceedings were settled when the Ministry of Defence admitted liability and agreed to pay GBP 115,000 by way of compensation. Moreover, on 20 February 2009 Major General Cubitt wrote to the fifth applicant and formally apologised on behalf of the British army for its role in the death of his son. In these circumstances, the fifth applicant could no longer claim to be a victim of a violation of the Convention within the meaning of Article 34. Further, or in the alternative, it was no longer justified to continue the examination of the application (Article 37 § 1 (c) of the Convention). 157. The Government further emphasised that the sixth applicant had expressly confirmed that he did not claim before the Court that the Government had violated his Convention rights. This reflected the fact that, in relation to his son ’ s death, there had been ( a ) a full investigation by the Special Investigation Branch, leading to the bringing of criminal charges against six soldiers, one of whom was convicted; ( b ) civil proceedings brought by the applicant, which were settled when the Government admitted liability for the mistreatment and death of the applicant ’ s son and paid damages of GBP 575,000; ( c ) a formal public acknowledgement by the Government of the breach of the applicant ’ s son ’ s rights under Articles 2 and 3; ( d ) judicial review proceedings, in which the applicant complained of a breach of his procedural rights under Articles 2 and 3 and in which it was agreed by the parties and ordered by the House of Lords that the question whether there had been a breach of the procedural obligation should be remitted to the Divisional Court; and ( e ) a public inquiry, which was ongoing. In these circumstances, the applicant could no longer claim to be a victim for the purposes of Article 34 of the Convention. ( ii ) The applicants 158. The applicants emphasised that the Court ’ s case-law regarding south-eastern Turkey demonstrated that the procedural duty under Article 2 was not modified by reference to security problems in a conflict zone. The same principle had to apply in relation to any attempt by the Government to rely on either the security situation or the lack of infrastructure and facilities in Iraq. The United Kingdom was aware, or should have been aware, prior to the invasion and during the subsequent occupation, of the difficulties it would encounter. Its shortcomings in making provision for those difficulties could not exonerate it from the failure to comply with the investigative duty. 159. They submitted that the United Kingdom had failed in its procedural duty as regards the first, second, third, fourth and fifth applicants. The Royal Military Police was an element of the British army and was not, in either institutional or practical terms, independent from the military chain of command. The army units exercised control over it in matters relating to safety and logistical support while in theatre. Its involvement in incidents was wholly dependent on a request from the military unit in question, as was illustrated by the fourth applicant ’ s case, where the Special Investigation Branch response was stood down upon the instruction of the Commanding Officer. The Royal Military Police appeared to have been wholly dependent on the military chain of command for information about incidents. If it produced a report, this was given to the military chain of command, which decided whether to forward it to the Army Prosecuting Authority. The inadequacies within the Royal Military Police, regarding both lack of resources and independence, were noted by the Court of Appeal and by the Aitken Report. 160. The applicants pointed out that the Special Investigation Branch investigation into the fourth applicant ’ s case had been discontinued at the request of the military chain of command. The further investigatory phase, reopened as a result of litigation in the domestic courts, was similarly deficient, given the lack of independence of the Special Investigation Branch and the extreme delay in interviewing the person responsible for firing the shots and securing other key evidence. In the fifth applicant ’ s case, the investigation was initiated at the repeated urging of the family, after considerable obstruction and delay on the part of the British authorities. The investigators were not independent from the military chain of command and the victim ’ s family were not sufficiently involved. The applicants contended that the Government ’ s objection that the fifth applicant lacked victim status should be rejected. The court-martial proceedings and the compensation he had received in settlement of the civil proceedings were inadequate to satisfy the procedural requirement under Article 2. In contrast, the sixth applicant did not claim still to be a victim of the violation of his procedural rights under Articles 2 and 3. ( b ) The Court ’ s assessment ( i ) General principles 161. The Court is conscious that the deaths in the present case occurred in Basra City in south -east Iraq in the aftermath of the invasion, during a period when crime and violence were endemic. Although major combat operations had ceased on 1 May 2003, the Coalition Forces in south -east Iraq, including British soldiers and military police, were the target of over a thousand violent attacks in the subsequent thirteen months. In tandem with the security problems, there were serious breakdowns in the civilian infrastructure, including the law enforcement and criminal justice systems (see paragraphs 22-23 above; see also the findings of the Court of Appeal at paragraph 80 above ). 162. While remaining fully aware of this context, the Court ’ s approach must be guided by the knowledge that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective. Article 2, which protects the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions of the Convention. No derogation from it is permitted under Article 15, “except in respect of deaths resulting from lawful acts of war”. Article 2 covers both intentional killing and also the situations in which it is permitted to use force which may result, as an unintended outcome, in the deprivation of life. Any use of force must be no more than “absolutely necessary” for the achievement of one or more of the purposes set out in sub-paragraphs (a) to (c) ( see McCann and Others, cited above, §§ 146 ‑ 48 ). 163. The general legal prohibition of arbitrary killing by agents of the State would be ineffective in practice if there existed no procedure for reviewing the lawfulness of the use of lethal force by State authorities. The obligation to protect the right to life under this provision, read in conjunction with the State ’ s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State ( see McCann and Others, cited above, § 161). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws safeguarding the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility ( see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 110, ECHR 2005-VII). However, the investigation should also be broad enough to permit the investigating authorities to take into consideration not only the actions of the State agents who directly used lethal force but also all the surrounding circumstances, including such matters as the planning and control of the operations in question, where this is necessary in order to determine whether the State complied with its obligation under Article 2 to protect life (see, by implication, McCann and Others, cited above, §§ 150 and 162; Hugh Jordan v. the United Kingdom, no. 24746/94, § 1 28, 4 May 2001; McKerr, cited above, §§ 143 and 151; Shanaghan v. the United Kingdom, no. 37715/97, § § 100-25, 4 May 2001; Finucane v. the United Kingdom, no. 29178/95, §§ 77-78, ECHR 2003 ‑ VIII; Nachova and Others, cited above, §§ 114-15; and, mutatis mutandis, Tzekov v. Bulgaria, no. 45500/99, § 71, 23 February 2006). 164. The Court has held that the procedural obligation under Article 2 continues to apply in difficult security conditions, including in a context of armed conflict (see, among other examples, Güleç v. Turkey, 27 July 1998, § 81, Reports 1998 ‑ IV; Ergi v. Turkey, 28 July 1998, §§ 79 and 82, Reports 1998 ‑ IV; Ahmet Özkan and Others v. Turkey, no. 21689/93, §§ 8 5-90, 309-20 and 326-30, 6 April 2004; Isayeva v. Russia, no. 57950/00, §§ 180 and 210, 24 February 2005; and Kanlibaş v. Turkey, no. 32444/96, §§ 39-51, 8 December 2005). It is clear that where the death to be investigated under Article 2 occurs in circumstances of generalised violence, armed conflict or insurgency, obstacles may be placed in the way of investigators and, as the United Nations Special Rapporteur has also observed (see paragraph 93 above), concrete constraints may compel the use of less effective measures of investigation or may cause an investigation to be delayed (see, for example, Bazorkina v. Russia, no. 69481/01, § 121, 27 July 2006). Nonetheless, the obligation under Article 2 to safeguard life entails that, even in difficult security conditions, all reasonable steps must be taken to ensure that an effective, independent investigation is conducted into alleged breaches of the right to life (see, among many other examples, Kaya v. Turkey, 19 February 1998, §§ 86 ‑ 92, Reports 1998 ‑ I; Ergi, cited above, §§ 82-85; Tanrıkulu v. Turkey [GC], no. 23763/94, §§ 101- 10, ECHR 1999 ‑ IV; Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 156-66, 24 February 2005; Isayeva, cited above, §§ 215 ‑ 24; and Musayev and Others v. Russia, nos. 57941/00, 58699/00 and 60403/0 0, §§ 158-65, 26 July 2007). 165. What form of investigation will achieve the purposes of Article 2 may vary depending on the circumstances. However, whatever mode is employed, the authorities must act of their own motion once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures ( see Ahmet Özkan and Others, cited above, § 310, and Isayeva, cited above, § 210). Civil proceedings, which are undertaken on the initiative of the next of kin, not the authorities, and which do not involve the identification or punishment of any alleged perpetrator, cannot be taken into account in the assessment of the State ’ s compliance with its procedural obligations under Article 2 of the Convention ( see, for example, Hugh Jordan, cited above, § 141). Moreover, the procedural obligation of the State under Article 2 cannot be satisfied merely by awarding damages (see McKerr, cited above, § 121, and Bazorkina, cited above, § 117 ). 166. As stated above, the investigation must be effective in the sense that it is capable of leading to a determination of whether the force used was or was not justified in the circumstances and to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must take the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard ( see Ahmet Özkan and Others, cited above, § 312, and Isayeva, cited above, § 212 and the cases cited therein). 167. For an investigation into alleged unlawful killing by State agents to be effective, it is necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence (see, for example, Shanaghan, cited above, § 104). A requirement of promptness and reasonable expedition is implicit in this context. While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the victim ’ s next of kin must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests ( see Ahmet Özkan and Others, cited above, §§ 311 ‑ 14, and Isayeva, cited above, §§ 211-14 and the cases cited therein). ( ii ) Application of these principles to the facts of the case 168. The Court takes as its starting - point the practical problems caused to the investigating authorities by the fact that the United Kingdom was an Occupying Power in a foreign and hostile region in the immediate aftermath of invasion and war. These practical problems included the breakdown in the civil infrastructure, leading, inter alia, to shortages of local pathologists and facilities for autopsies; the scope for linguistic and cultural misunderstandings between the occupiers and the local population; and the danger inherent in any activity in Iraq at that time. As stated above, the Court considers that in circumstances such as these the procedural duty under Article 2 must be applied realistically, to take account of specific problems faced by investigators. 169. Nonetheless, the fact that the United Kingdom was in occupation also entailed that, if any investigation into acts allegedly committed by British soldiers was to be effective, it was particularly important that the investigating authority was, and was seen to be, operationally independent of the military chain of command. 170. It was not in issue in the first, second and fourth applicants ’ cases that their relatives were shot by British soldiers, whose identities were known. The question for investigation was whether in each case the soldier fired in conformity with the rules of engagement. In respect of the third applicant, Article 2 required an investigation to determine the circumstances of the shooting, including whether appropriate steps were taken to safeguard civilians in the vicinity. As regards the fifth applicant ’ s son, although the Court has not been provided with the documents relating to the court martial, it appears to have been accepted that he died of drowning. It needed to be determined whether British soldiers had, as alleged, beaten the boy and forced him into the water. In each case, eyewitness testimony was crucial. It was therefore essential that, as quickly after the event as possible, the military witnesses, and in particular the alleged perpetrators, should have been questioned by an expert and fully independent investigator. Similarly, every effort should have been taken to identify Iraqi eyewitnesses and to persuade them that they would not place themselves at risk by coming forward and giving information and that their evidence would be treated seriously and acted upon without delay. 171. It is clear that the investigations into the shooting of the first, second and third applicants ’ relatives fell short of the requirements of Article 2, since the investigation process remained entirely within the military chain of command and was limited to taking statements from the soldiers involved. Moreover, the Government accept this conclusion. 172. As regards the other applicants, although there was an investigation by the Special Investigation Branch into the death of the fourth applicant ’ s brother and the fifth applicant ’ s son, the Court does not consider that this was sufficient to comply with the requirements of Article 2. It is true that the Royal Military Police, including its Special Investigation Branch, had a separate chain of command from the soldiers on combat duty whom it was required to investigate. However, as the domestic courts observed (see paragraphs 77 and 82 above), the Special Investigation Branch was not, during the relevant period, operationally independent from the military chain of command. It was generally for the Commanding Officer of the unit involved in the incident to decide whether the Special Investigation Branch should be called in. If the Special Investigation Branch decided on its own initiative to commence an investigation, this investigation could be closed at the request of the military chain of command, as demonstrated in the fourth applicant ’ s case. On conclusion of a Special Investigation Branch investigation, the report was sent to the Commanding Officer, who was responsible for deciding whether or not the case should be referred to the Army Prosecuting Authority. The Court considers, in agreement with Brooke LJ (see paragraph 8 2 above), that the fact that the Special Investigation Branch was not “free to decide for itself when to start and cease an investigation” and did not report “in the first instance to the [Army Prosecuting Authority]” rather than to the military chain of command, meant that it could not be seen as sufficiently independent from the soldiers implicated in the events to satisfy the requirements of Article 2. 173. It follows that the initial investigation into the shooting of the fourth applicant ’ s brother was flawed by the lack of independence of the Special Investigation Branch officers. During the initial phase of the investigation, material was collected from the scene of the shooting and statements were taken from the soldiers present. However, Lance Corporal S. , the soldier who shot the applicant ’ s brother, was not questioned by Special Investigation Branch investigators during this initial phase. It appears that the Special Investigation Branch interviewed four Iraqi witnesses, who may have included the neighbours the applicant believes to have witnessed the shooting, but did not take statements from them. In any event, as a result of the lack of independence, the investigation was terminated while still incomplete. It was subsequently reopened, some nine months later, and it would appear that forensic tests were carried out at that stage on the material collected from the scene, including the bullet fragments and the vehicle. The Special Investigation Branch report was sent to the Commanding Officer, who decided to refer the case to the Army Prosecuting Authority. The prosecutors took depositions from the soldiers who witnessed the incident and decided, having taken further independent legal advice, that there was no evidence that Lance Corporal S. had not acted in legitimate self-defence. As previously stated, eyewitness testimony was central in this case, since the cause of the death was not in dispute. The Court considers that the long period of time that was allowed to elapse before Lance Corporal S. was questioned about the incident, combined with the delay in having a fully independent investigator interview the other military witnesses, entailed a high risk that the evidence was contaminated and unreliable by the time the Army Prosecuting Authority came to consider it. Moreover, it does not appear that any fully independent investigator took evidence from the Iraqi neighbours who the applicant claims witnessed the shooting. 174. While there is no evidence that the military chain of command attempted to intervene in the investigation into the fifth applicant ’ s son ’ s death, the Court considers that the Special Investigation Branch investigators lacked independence for the reasons set out above. In addition, no explanation has been provided by the Government in respect of the long delay between the death and the court martial. It appears that the delay seriously undermined the effectiveness of the investigation, not least because some of the soldiers accused of involvement in the incident were by then untraceable (see, in this respect, the comments in the Aitken Report, paragraph 6 1 above). Moreover, the Court considers that the narrow focus of the criminal proceedings against the accused soldiers was inadequate to satisfy the requirements of Article 2 in the particular circumstances of this case. There appears to be at least prima facie evidence that the applicant ’ s son, a minor, was taken into the custody of British soldiers who were assisting the Iraqi police to take measures to combat looting and that, as a result of his mistreatment by the soldiers, he drowned. In these circumstances, the Court considers that Article 2 required an independent examination, accessible to the victim ’ s family and to the public, of the broader issues of State responsibility for the death, including the instructions, training and supervision given to soldiers undertaking tasks such as this in the aftermath of the invasion. 175. In the light of the foregoing, the Court does not consider that the procedural duty under Article 2 has been satisfied in respect of the fifth applicant. Although he has received a substantial sum in settlement of his civil claim, together with an admission of liability on behalf of the army, there has never been a full and independent investigation into the circumstances of his son ’ s death (see paragraph 165 above). It follows that the fifth applicant can still claim to be a victim within the meaning of Article 34 and that the Government ’ s preliminary objection regarding his lack of victim status must be rejected. 176. In contrast, the Court notes that a full, public inquiry is nearing completion into the circumstances of the sixth applicant ’ s son ’ s death. In the light of this inquiry, the Court notes that the sixth applicant accepts that he is no longer a victim of any breach of the procedural obligation under Article 2. The Court therefore accepts the Government ’ s objection in respect of the sixth applicant. 177. In conclusion, the Court finds a violation of the procedural duty under Article 2 of the Convention in respect of the first, second, third, fourth and fifth applicants. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 178. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 179. The first, second, third, fourth and fifth applicants asked the Court to order the Government to carry out an Article 2-compliant investigation into their relatives ’ deaths. They also claimed 15,000 pounds sterling (GBP) each in compensation for the distress they had suffered because of the United Kingdom ’ s failure to conduct a Convention-compliant investigation into the deaths. 180. The Government pointed out that the Court had repeatedly and expressly refused to direct the State to carry out a fresh investigation in cases in which it had found a breach of the procedural duty under Article 2 (see, for example, Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 222, ECHR 2009; Ülkü Ekinci v. Turkey, no. 27602/95, § 179, 16 July 2002; and Finucane, cited above, § 89 ). They further submitted that a finding of a violation would be sufficient just satisfaction in the circumstances. In the alternative, if the Court decided to make an award, the Government noted that the sum claimed by the applicants was higher than generally awarded. They did not, however, propose a sum, leaving it to the Court to decide on an equitable basis. 181. As regards the applicants ’ request concerning the provision of an effective investigation, the Court reiterates the general principle that the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court ’ s judgment. Consequently, it considers that in these applications it falls to the Committee of Ministers acting under Article 46 of the Convention to address the issues as to what may be required in practical terms by way of compliance (see Varnava and Others, cited above, § 222, and the cases cited therein ). 182. As regards the claim for monetary compensation, the Court recalls that it is not its role under Article 41 to function akin to a domestic tort mechanism court in apportioning fault and compensatory damages between civil parties. Its guiding principle is equity, which above all involves flexibility and an objective consideration of what is just, fair and reasonable in all the circumstances of the case, including not only the position of the applicant but the overall context in which the breach occurred. Its non ‑ pecuniary awards serve to give recognition to the fact that moral damage occurred as a result of a breach of a fundamental human right and reflect in the broadest of terms the severity of the damage (see Varnava and Others, cited above, § 224, and the cases cited therein). In the light of all the circumstances of the present case, the Court considers that, to compensate each of the first five applicants for the distress caused by the lack of a fully independent investigation into the deaths of their relatives, it would be just and equitable to award the full amount claimed, which, when converted into euros, comes to approximately 17,000 euros (EUR) each. B. Costs and expenses 183. The applicants, emphasising the complexity and importance of the case, claimed for over 580 hours ’ legal work by their solicitors and four counsel in respect of the proceedings before the Court, at a total cost of GBP 119,928. 184. The Government acknowledged that the issues were complex, but nonetheless submitted that the claim was excessive, given that the applicants ’ legal advisers were familiar with all aspects of the claim since they had acted for the applicants in the domestic legal proceedings, which had been publicly funded. Furthermore, the hourly rates claimed by the applicants ’ counsel, ranging between GBP 500 and GBP 235, and the hourly rates claimed by the applicants ’ solicitors, ranging between GBP 180 and GBP 130, were unreasonably high. Nor had it been necessary to engage two Queen ’ s Counsel and two junior counsel. 185. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 50,000 for the proceedings before the Court. C. Default interest 186. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that, in the exceptional circumstances deriving from the United Kingdom’s assumption of authority for the maintenance of security in South East Iraq from 1 May 2003 to 28 June 2004, the United Kingdom had jurisdiction under Article 1 (obligation to respect human rights) of the Convention in respect of civilians killed during security operations carried out by UK soldiers in Basrah. It found that there had been a failure to conduct an independent and effective investigation into the deaths of the relatives of five of the six applicants, in violation of Article 2 (right to life) of the Convention. |
805 | Right to a fair trial (Article 6 of the Convention) | II. RELEVANT DOMESTIC LAW A. The Civil Code (1999) 56. Article 31 provides that a person who, as a result of a mental disorder, is unable to understand the meaning of his or her actions or to control them may be declared incapable by a court, in accordance with the procedure prescribed by the CCP. Transactions on behalf of a person declared incapable are handled by his or her guardian. A court restores a person’s legal capacity, if the grounds on the basis of which he was declared incapable cease to exist. Guardianship is terminated on the basis of such judgment. 57. Article 32 provides that legal capacity of a person may be restricted by a court, in accordance with the procedure prescribed by the CCP, if he or she puts his family into a difficult financial situation as a result of alcohol or drug abuse or gambling. Trusteeship is assigned in respect of such persons. 58. Article 33 §§ 1 and 2 provides that guardianship and trusteeship are designated for the purpose of protecting the rights and interests of incapable persons or those whose legal capacity has been restricted. Guardians and trustees defend the rights and interests of their wards in their relations with everyone, including before the courts, without a special authorisation. 59. Article 37 §§ 1 and 3 provides that a guardian is appointed by the local body of guardianship and trusteeship. The appointment of a guardian may be contested before a court by persons concerned. When appointing a guardian, the nature of the relationship between the potential guardian and the ward and, if possible, the wishes of the ward are taken into account, among other things. B. Code of Civil Procedure (1999-2018) 1. Procedure for declaring a person incapable 60. Section 2 of Part 3 of the Code, entitled “Special proceedings”, includes Chapter 29 (Articles 168-173) which regulates the procedure for declaring a person incapable. 61. Article 168 § 1 provides that an application for a person to be declared incapable may be lodged by his or her family members, a body of guardianship and trusteeship or the administration of a psychiatric institution. 62. Article 169 § 1 provides that an application for a person to be declared incapable must indicate the circumstances demonstrating a person’s mental disorder and as a result of which he or she is unable to understand the meaning of his or her actions or to control them. 63. Article 170 provides that, if there is a reasonable suspicion that a person suffers from a mental disorder, the judge orders a psychiatric expert examination to determine the state of mental health of the person in question. 64. Article 171 § 1 provides that an application for a person to be declared incapable must be examined in the presence of a representative of a body of guardianship and trusteeship. The person concerned may be invited to the hearing, if his state of health permits. 65. Article 172 § 1 provides that the body of guardianship and trusteeship appoints a guardian on the basis of a judgment declaring a person incapable. 66. Article 173 § 1 provides that, in cases prescribed by the CC, the court declares a person who has recovered capable, on the basis of a relevant psychiatric expert opinion, upon an application lodged by the guardian, a family member or the administration of a psychiatric institution. 2. Other relevant provisions 67. Article 27 provides that persons participating in the proceedings include (1) the parties; (2) third parties; and (3) applicants in cases envisaged by Part 3 of the Code. 68. Article 35 § 2 provides that third parties who have no claims of their own in respect of the dispute enjoy the same rights as the parties, except the right to change the grounds or subject of a claim, to increase or decrease the amount of a claim, to withdraw a claim, to accept a claim or enter into a friendly settlement, and to demand compulsory enforcement of a judicial decision. 69. Article 43 § 1 provides that the rights and legitimate interests of persons declared incapable are defended before the courts by their parents (or foster parents), guardians or trustees. 70. Article 105 provides that the court must suspend the proceedings if, inter alia, it is impossible to examine the case until final resolution of another constitutional, civil, criminal or administrative case, or if the individual participating in the case has been declared incapable. III. RELEVANT INTERNATIONAL DOCUMENTS A. Council of Europe 71. On 23 February 1999 the Committee of Ministers of the Council of Europe adopted Recommendation No. R (99) 4 on “Principles concerning the legal protection of incapable adults”. For the relevant parts of the Recommendation see Stanev v. Bulgaria ([GC], no. 36760/06, § 73, ECHR 2012). Other relevant parts not cited in that judgment read as follows: Principle 8 – Paramountcy of interests and welfare of the person concerned “1. In establishing or implementing a measure of protection for an incapable adult the past and present wishes and feelings of the adult should be ascertained so far as possible, and should be taken into account and given due respect. 2. This principle implies, in particular, that the wishes of the adult as to the choice of any person to represent or assist him or her should be taken into account and, as far as possible, given due respect.” Principle 12 – Investigation and assessment “1. There should be adequate procedures for the investigation and assessment of the adult’s personal faculties. 2. No measure of protection which restricts the legal capacity of an incapable adult should be taken unless [...] an up-to-date report from at least one suitably qualified expert has been submitted.” Principle 16 – Adequate control “There should be adequate control of the operation of measures of protection and of the acts and decisions of representatives.” 72. On the same date the Committee of Ministers of the Council of Europe adopted the Explanatory Memorandum to Recommendation No. R (99) 4. Paragraph 47 provides the following explanation of Principle 8: “This principle implies among other things that the choice of any person to represent or assist an incapable adult should be governed by the suitability of that person to safeguard and promote the adult’s interests and welfare. In some family situations there are quite acute conflicts of interest and, while the invaluable and irreplaceable role of family members must be fully recognised and valued, the law must also be aware of the dangers which exist in certain situations of family conflict”. B. United Nations 73. In December 2006 the United Nations Convention on the Rights of Persons with Disabilities (hereafter “the CRPD”) was adopted. It entered into force internationally in May 2008. By the end of September 2016, 44 out of the 47 Council of Europe member States had ratified the Convention. Armenia ratified the Convention on 22 September 2010. Article 12 of the CRPD, entitled “Equal recognition before the law”, provides as follows: “1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law. 2. States Parties shall recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. 3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. 4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests. 5. Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 74. The applicant complained (a) that, after having been divested of legal capacity, he had had no standing before the domestic courts either to pursue his divorce and eviction claim or to request the restoration of his legal capacity; and (b) that he had not had a fair hearing in the proceedings concerning deprivation of his legal capacity, in breach of his rights guaranteed by Article 6 § 1 of the Convention which, in so far as relevant, reads as follows: “1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal....” A. Access to court 1. Admissibility 75. The Court notes that the applicant complained specifically about two restrictions on his access to court after he had been declared incapable: firstly, the inability to pursue his divorce and eviction claim and, secondly, the lack of possibility to apply to a court to have his legal capacity restored. 76. The Government raised a non-exhaustion objection regarding the second complaint, arguing that it was premature because, following the Constitutional Court’s decision of 7 April 2015, the applicant was granted access to court to seek restoration of his legal capacity and those proceedings were still pending. 77. The applicant submitted that his complaint about the lack of access to court for restoration of his legal capacity was limited to the situation before the Constitutional Court’s decision of 7 April 2015, specifically when in August 2014 he had tried to initiate a new medical examination and a review of his situation by the domestic court but was not able to do so because of the restriction imposed on his access to court by Article 173 of the CCP. The proceedings which he instituted after the Constitutional Court’s decision were indeed still pending but were not part of his application lodged with the Court. Thus, he could still claim to be a victim in respect of denial of access to court in August 2014. 78. The Court notes that the applicant’s complaint concerns the lack of possibility to have access to court to request restoration of his legal capacity prior to the Constitutional Court’s decision of 7 April 2015. He was indeed granted access following that decision, but he does not complain about the fairness of those proceedings or the merits of that dispute. The fact that those proceedings are still pending is therefore irrelevant for the applicant’s access-to-court complaint and no question of non-exhaustion or prematurity of his complaint arises. The Court therefore dismisses the Government’s objection in this respect. 79. On the other hand, the Court cannot overlook the fact that, taking into account that the applicant was eventually granted access to court to seek restoration of his legal capacity, a question arises as to whether the applicant can still claim to be a victim of an alleged violation of Article 6 § 1 of the Convention. In this respect, the Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him or her of “victim” status unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, among other authorities, Scordino v. Italy (no. 1) [GC], no. 36813/97, § 180, ECHR 2006 ‑ V). 80. In the present case, the Court notes that by virtue of the restriction contained in Article 173 § 1 of the CCP, the applicant did not have standing to initiate court proceedings with a view to reviewing and restoring his legal capacity. This situation changed when, on 7 April 2015, the Constitutional Court declared Article 173 § 1 unconstitutional and invalid in so far as it failed to ensure for persons declared incapable the right to initiate personally court proceedings, putting an end to the situation complained of by the applicant in his application and allowing him to institute court proceedings in May 2015. However, in the Court’s view, the Constitutional Court’s decision, which was moreover taken upon an application lodged by the Ombudsman and was not in any way related to the applicant’s particular case, did not constitute either an implicit acknowledgement of a breach of the applicant’s right of access to court or redress for the period during which the applicant was deprived of this right (see, mutatis mutandis, Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 83, ECHR 2012). 81. The Court therefore concludes that the applicant can still claim to be a victim of an alleged violation of his right of access to court guaranteed by Article 6 § 1 of the Convention. 82. The Court notes that the applicant’s complaints concerning lack of access to court are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. 2. Merits (a) The parties’ submissions (i) The applicant 83. The applicant submitted that, after he had been declared incapable, he had no standing before the domestic courts either to pursue his divorce and eviction claim or to apply to a court to have his legal incapacity reviewed, in breach of his right of access to a court guaranteed by Article 6 of the Convention. 84. As regards the divorce and eviction proceedings, the applicant submitted that he had initiated those proceedings before his wife and son applied to a court to have him declared incapable. He argued that the sole purpose of their action was to avoid the divorce and eviction, and once he was declared incapable he no longer had the possibility to present personally his divorce and eviction case in court or to request an examination of that claim after the proceedings had been stayed since, in accordance with Article 31 and 33 of the CC, he could act before the courts only through his guardian. The claim had eventually been abandoned not by him but by his son, with whom he had a conflictual relationship and regular disputes and who, in so doing, had acted against his will and interests. The withdrawal of the claim had therefore not been in his best interest and pursued the sole aim of avoiding divorce and eviction. Thus, he had been deprived of the possibility to pursue his divorce and to protect his right to private life. 85. As regards restoration of legal capacity, the applicant submitted that in August 2014 he had applied to a court with a request to appoint a new medical examination in order to review the decision declaring him incapable. The court, however, had refused to examine that request with reference to Article 173 of the CCP, which prevented his access to court to seek restoration of his legal capacity. Furthermore, the Armenian system did not provide for any possibility for a review of legal incapacity at reasonable intervals. Referring to the judgments in the cases of Stanev (cited above) and Nataliya Mikhaylenko v. Ukraine (no. 49069/11, 30 May 2013), the applicant argued that he should have enjoyed the right of access to court to seek restoration of his legal capacity, which had been violated by the refusal to examine his request in 2014. Such lack of judicial review had seriously affected many aspects of his life and had not pursued any legitimate aim. (ii) The Government 86. The Government denied that the applicant’s right of access to court had been violated. 87. As regards the divorce and eviction proceedings, the Government submitted that at the time when the court had decided to stay those proceedings the psychiatric expert opinion had already been issued in respect of the applicant and the domestic court had been obliged by law to stay those proceedings, since the determination of the question of the applicant’s legal capacity was decisive for the examination of the divorce and eviction claim in terms of assessing the applicant’s ability to understand the meaning of his actions and to control them. After the applicant had been deprived of his legal capacity, his divorce and eviction claim had been withdrawn by his son, who had been appointed as his guardian in compliance with the requirements of domestic law and at the applicant’s wish. The withdrawal of the claim had pursued a legitimate aim because the applicant’s son, as his guardian, had been obliged to prevent the applicant from taking actions that could lead to severe consequences for others. Furthermore, the decision to terminate the divorce and eviction proceedings had not affected the applicant’s right of access to court because the applicant had had the possibility to re-submit his claim if he were to succeed in restoring his legal capacity or if a new guardian were appointed or his son so wished. 88. As regards restoration of legal capacity the Government, referring to the proceedings which the applicant instituted after the Constitutional Court’s decision of 7 April 2015, submitted that the applicant had enjoyed full access to court in those proceedings. He had been able to avail himself fully of all the rights enjoyed by a party to the proceedings, including to be present, to have a lawyer and to lodge requests. As regards his request lodged in August 2014, the District Court lacked the authority to order a new medical examination due to the fact that the case regarding the applicant’s legal capacity had already been concluded by a final judgment. In any event, the request in question had not been a proper application lodged with a court and in order to complain about lack of access to court the applicant should at least have tried to lodge such an application first. (b) The Court’s assessment (i) General principles 89. The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his or her civil rights and obligations brought before a court or tribunal. This “right to a court”, of which the right of access is an aspect, may be relied on by anyone who considers on arguable grounds that an interference with the exercise of his or her civil rights is unlawful and complains that no possibility was afforded to submit that claim to a court meeting the requirements of Article 6 § 1 (see Stanev, cited above, § 229, and Nataliya Mikhaylenko, cited above, § 30). 90. The right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access “by its very nature calls for regulation by the State, regulation which may vary in time and in place according to the needs and resources of the community and of individuals”. In laying down such regulation, the Contracting States enjoy a certain margin of appreciation. Whilst the final decision as to observance of the Convention’s requirements rests with the Court, it is no part of the Court’s function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field. Nonetheless, the limitations applied must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Stanev, cited above, § 230, and Nataliya Mikhaylenko, cited above, § 31). 91. The Court has acknowledged in the past that restrictions on the procedural rights of a person who has been deprived of legal capacity may be justified for that person’s own protection, the protection of the interests of others and the proper administration of justice (see Stanev, cited above, § 241). It is for the State to decide how the procedural rights of a person who has been deprived of legal capacity should be ensured at domestic level. In this context, States should be able to take restrictive measures in order to achieve the above-mentioned aims (see Nataliya Mikhaylenko, cited above, § 36). (ii) Application of the above principles in the present case 92. The Court notes at the outset that in the present case none of the parties disputed the applicability of Article 6 to the proceedings in question and the Court has no reason to hold otherwise (see Stanev, cited above, § 233, and Nataliya Mikhaylenko, cited above, § 33, as regards, in particular, proceedings for restoration of legal capacity). The Court will address the two instances of restrictions on the applicant’s access to court separately. (α) Access to court in divorce and eviction proceedings 93. The Court notes that the applicant’s divorce and eviction claim lodged on 25 April 2012 was never examined by the domestic courts, as a result of the decision to declare him legally incapable and the eventual withdrawal of that claim by the applicant’s son, who acted as his guardian. In this respect, the Court reiterates that the right of access to a court includes not only the right to institute proceedings but also the right to obtain a determination of the dispute by a court (see, among other authorities, Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 86, 29 November 2016). 94. The Court observes that, once declared incapable, the applicant no longer had legal capacity to act before the courts to pursue his divorce and eviction claim and, in accordance with Article 43 § 1 of the CCP and Article 33 § 2 of the CC, could do so only through his guardian. Thus, domestic law imposed a blanket ban on the applicant’s access to court in all spheres of life. Furthermore, as will be discussed below under Article 8 of the Convention, the domestic legal system did not differentiate between different degrees of incapacity for persons suffering from a mental disorder and did not provide for measures of protection tailored to the individual needs of the person concerned. Thus, such questions as to whether the applicant could understand the meaning of divorce or eviction and whether he could act autonomously in that sphere of life, including defending his rights before the courts, without causing disruption to the proper administration of justice or harm to himself or others, were never addressed and answered. Therefore, it is questionable whether such a blanket ban on the applicant’s access to court, which resulted in his inability to pursue his divorce and eviction claim, pursued any legitimate aim. The Court, however, does not find it necessary to answer that question conclusively since, even assuming that it did, the restriction on the applicant’s access to court was, in any event, unjustified in the particular circumstances of the case for the following reasons. 95. The Court notes that Article 37 § 3 of the CC required the body of guardianship and trusteeship, which was responsible for the appointment of the applicant’s guardian, to take into account the nature of the relationship between the applicant and his potential guardian and, if possible, the applicant’s wish. Furthermore, the applicant himself applied to that body and requested that his opinion be taken into account when appointing his guardian (see paragraph 29 above). However, as it follows from the decision of the Court of Cassation of 28 September 2016, the body of guardianship and trusteeship failed to hear the applicant and appointed his son as his guardian, despite the fact that the applicant apparently had a conflictual relationship with his son and opposed his appointment. In this connection the Court stresses the importance of respecting Principle 8 of Recommendation No. R (99) 4 of the Committee of Ministers of the Council of Europe (see paragraph 71 above). It also refers to Article 12 § 4 of the CRPD which requires appropriate and effective safeguards ensuring that measures relating to the exercise of legal capacity by persons with disabilities be free of conflict of interest and undue influence (see paragraph 73 above) and which Armenia, by adhering to the CRPD, undertook to take into consideration (see Guberina v. Croatia, no. 23682/13, § 92, 22 March 2016). Those principles were of particular significance for the applicant in the present case since, being fully deprived of his legal capacity and, as a result, of his right of access to court, the only proper and effective means of protection of his legal interests before the courts was through a conflict-free guardianship. 96. The Court further notes that, from the circumstances of the case, it is doubtful whether the applicant’s son was genuinely neutral and there was no conflict of interests as regards specifically the applicant’s claim filed against his wife seeking to divorce and evict her. In this connection the Court observes that the District Court failed to carry out any examination of the question of whether the applicant’s son’s request to withdraw the claim was in the applicant’s best interest and to provide any explanation for its decision to accept that request (see paragraphs 31 and 34 above). It is not clear on what ground the District Court stated that the applicant’s son had been appointed as the applicant’s guardian upon his consent and at his wish, a finding which, as already indicated above, was later rebutted by the Court of Cassation. The Court therefore considers that the domestic court failed to carry out the necessary scrutiny and oversight when deciding to accept the request to withdraw the applicant’s claim and that consequently the termination of the divorce and eviction proceedings was unjustified. 97. Accordingly, there has been a violation of Article 6 § 1 of the Convention as regards the applicant’s access to court in the divorce and eviction proceedings. (β) Access to court for restoration of legal capacity 98. The Court notes at the outset that the applicant’s complaint about lack of access to court for restoration of his legal capacity concerns only the period prior to the Constitutional Court’s decision of 7 April 2015 when the applicant, by virtue of Article 173 § 1 of the CCP, had no locus standi to apply directly to a court for restoration of legal capacity and could do so only through persons listed in that Article, including his guardian, a family member or the administration of a psychiatric institution. Furthermore, as already indicated above, under domestic law a person declared incapable could act before the courts only through his or her guardian. 99. The Court has already examined a similar situation in the cases of Stanev and Nataliya Mikhaylenko, cited above, where it stated that the importance of exercising procedural rights would vary according to the purpose of the action which the person concerned intended to bring before the courts. In particular, the right to ask a court to review a declaration of incapacity was one of the most important rights for the person concerned since such a procedure, once initiated, would be decisive for the exercise of all the rights and freedoms affected by the declaration of incapacity (see Stanev, cited above, § 241, and Nataliya Mikhaylenko, cited above, § 37). This right was therefore one of the fundamental procedural rights for the protection of those who had been partially or fully deprived of legal capacity. Hence, such persons should in principle enjoy direct access to the courts in this sphere (see Stanev, cited above, § 241, and Nataliya Mikhaylenko, cited above, §§ 38-40). 100. The Court has further held that the State remains free to determine the procedure by which such direct access is to be realised. At the same time, it would not be incompatible with Article 6 for national legislation to provide for certain restrictions on access to court in this sphere, with the sole aim of ensuring that the courts are not overburdened with excessive and manifestly ill-founded applications. Nevertheless, it seems clear that this problem may be solved by other, less restrictive means than automatic denial of direct access, for example by limiting the frequency with which applications may be made or introducing a system for prior examination of their admissibility on the basis of the file (see Stanev, cited above, § 242). 101. As regards the situation in Armenia at the material time, the general prohibition on direct access to a court by persons declared incapable did not leave any room for exception. At the same time, the domestic law did not provide safeguards to the effect that the matter of restoration of legal capacity was to be reviewed by a court at reasonable intervals, despite the requirement of Article 12 § 4 of the CRPD that measures restricting legal capacity be subject to regular review by a competent authority (see paragraph 73 above). The Court also notes that such blanket prohibition on direct access to court was not in line with the general trend at European level. In particular, the comparative analysis conducted in the case of Stanev showed that seventeen of the twenty national legal systems studied provided at the time for direct access to the courts for persons who had been declared fully incapable (see Stanev, cited above, §§ 88-90 and 243). In the applicant’s case this situation was further exacerbated by the fact that the authorities had failed to ensure a conflict-free guardianship (see paragraph 95 above). Lastly, the Court considers it irrelevant whether the request lodged by the applicant in August 2014 could be considered as a “proper application lodged with a court” because, even assuming that it was not, the prohibition on the applicant’s access to court was enshrined in law and the applicant cannot be held accountable for not trying to initiate a procedure which he had no right to initiate by law. 102. In the light of the above, the Court considers that the applicant’s inability to seek restoration of his legal capacity directly at the material time was disproportionate to any legitimate aim pursued. 103. Accordingly, there has been a violation of Article 6 § 1 of the Convention as regards the applicant’s lack of access to court to seek restoration of his legal capacity. B. Proceedings concerning deprivation of the applicant’s legal capacity 104. The Court observes at the outset that the applicant’s allegations of an unfair trial amount to two distinct arguments: firstly, that he was not heard by a court and, secondly, that the domestic courts based their decisions on an outdated psychiatric expert opinion. As regards the second argument, the Court considers that it falls to be examined under Article 8 of the Convention (see paragraph 124 below). 1. The parties’ submissions 105. The applicant submitted that the trial had not been fair since the case had been examined through “special procedure” which did not presuppose the existence of a dispute and of competing parties and were therefore not adversarial. While he had been present at the hearings of 3 October and 18 November 2013, his presence had been only a formality and his right to be heard had not been respected. Due to the special nature of the proceedings, he had not been allowed to argue his case, make submissions regarding his wife and son’s applications and contest the expert opinion, while the judge had not asked him any questions or inquired about his position, since he had been considered only an object of examination and not an interested party. The judgment of 29 November 2013 had been adopted after a hearing that lasted only a few minutes, during which the court read out the results of the psychiatric expert opinion and adopted its decision. He had therefore been deprived of the possibility to participate effectively in the proceedings. 106. The Government submitted that the applicant had lost his victim status in relation to his complaint about the lack of an adversarial procedure. In particular, while he had initially been excluded from the hearing where the question of his legal capacity had been decided, that judgment had been reversed by the Civil Court of Appeal exactly on that ground, thereby correcting the shortcomings of the initial trial and ensuring the protection of the applicant’s rights. Following that decision the applicant had been granted the status of a third party and participated in the proceedings, during which he had enjoyed and exercised almost all the procedural rights of a party to the proceedings as provided by Article 35 § 2 of the CCP. He had been present at the hearings of 3 October and 18 November 2013, while failing to appear at the hearing of 31 October 2013 despite being duly notified. The final hearing of 29 November 2013 had lasted only several minutes since the examination of the case had already been completed at the hearing of 18 November 2013 and only the judgment had to be delivered during the final hearing. The applicant’s allegations that his participation had only been a formality were of a speculative nature and, even assuming that this had been the case, this should be attributed to the applicant and his inability to present his position rather than to any shortcomings in the conduct of the courts. 2. The Court’s assessment 107. The Court reiterates that in cases involving a mentally ill person the domestic courts should enjoy a certain margin of appreciation. Thus, for example, they can make the relevant procedural arrangements in order to secure the proper administration of justice, protection of the health of the person concerned, and so on. However, such measures should not affect the very essence of the applicant’s right to a fair trial as guaranteed by Article 6 of the Convention. In assessing whether or not a particular measure, such as exclusion of the applicant from a hearing, was necessary, the Court will take into account all relevant factors (see Shtukaturov, cited above, § 68). 108. The Court further reiterates that the admissibility of evidence is primarily a matter for regulation by national law and that, as a general rule, it is for the national courts to assess the evidence before them (see Elsholz v. Germany [GC], no. 25735/94, § 66, ECHR 2000 ‑ VIII). The Court’s sole task in connection with Article 6 of the Convention is to examine applications alleging that the domestic courts have failed to observe specific procedural safeguards laid down in that Article or that the conduct of the proceedings as a whole did not guarantee the applicant a fair hearing (see Centro Europa 7 S.r.l. and Di Stefano, cited above, § 197). 109. In the present case, the Court considers that the fact that the case was examined through a special procedure which did not presuppose the existence of competing parties is not sufficient in itself to find a violation of Article 6 and it is necessary to examine the particular circumstances of the proceedings in question. In this connection, the Court observes that the applicant was indeed initially excluded from the hearing at which the District Court decided to divest him of his legal capacity, since he was not a party to those proceedings (see paragraph 15 above). However, this shortcoming was remedied by the Civil Court of Appeal which quashed that judgment specifically on that ground and remitted the case for a fresh examination (see paragraph 20 above). During the new examination of the case the applicant was granted status as a third party, allowing him to enjoy all the main procedural rights of a party, including the right to be present, make submissions, lodge requests and appeal against decisions. As a result, the applicant was summoned and took part in almost all the hearings before the District Court (see, by contrast, Shtukaturov, cited above, § 69; X and Y v. Croatia, no. 5193/09, § 81, 3 November 2011; and Lashin v. Russia, no. 33117/02, § 82, 22 January 2013). Furthermore, contrary to the applicant’s claim, it follows from the materials of the case that he actually made submissions before the District Court and that questions were posed to him by the examining judge (see paragraph 24 above). The Court cannot therefore accept the applicant’s argument that his participation in the hearing was of a purely formal nature. The Court notes that the applicant did not provide any other, more specific arguments in support of his allegations of an unfair trial. In such circumstances, the allegations of an unfair trial and lack of adversarial procedure, as formulated by the applicant, are not sufficient for the Court to conclude that the conduct of the proceedings as a whole did not guarantee the applicant a fair hearing. 110. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 111. The applicant complained that he had been deprived of his legal capacity in breach of the guarantees of Article 8 of the Convention, which provides as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 112. The Government submitted that the applicant had failed to raise the issue of proportionality of the interference with his Article 8 rights before the domestic courts. He had not indicated which particular element of the interference had not been respected in his case and had therefore failed to exhaust the domestic remedies. 113. The applicant did not comment on the Government’s objection. 114. The Court considers that the Government’s objection is closely linked to the substance of the applicant’s complaint and should therefore be joined to the merits. B. Merits 1. The parties’ submissions 115. The applicant submitted that his full deprivation of legal capacity was a disproportionate and inadequate measure. No tailor-made approach had been applied when deciding on that matter since the law did not provide for any intermediate form of limitation of legal capacity for mentally ill persons and the only choice was either to maintain full capacity or to deprive him of full capacity. Furthermore, the measure in question applied for an indefinite period of time, without a possibility to seek a review other than through his guardian, and resulted in complete loss of rights, including the ability to pursue his divorce and eviction claim against his wife. In depriving him of legal capacity, the courts had relied solely on an outdated medical report which did not reliably reflect his mental health at the material time. Moreover, it had lacked any explanation as to the kind of actions that his illness rendered him incapable of understanding or controlling. Nor did it establish the possible consequences of his illness on his social life, pecuniary interests and so on. The submissions made by his wife had been unreliable because she had had an interest in depriving him of legal capacity in order to prevent the examination of his divorce and eviction claim. Lastly, the applicant argued that the decision to deprive him of legal capacity did not pursue any legitimate aim. 116. The Government submitted that the interference with the applicant’s Article 8 rights was prescribed by law, namely Article 31 of the CC. It pursued a legitimate aim, namely the protection of the rights of others, including the right to life of his wife, whom the applicant had threatened to stab. Lastly, the interference was proportionate since it was not based solely on the medical report but also on the submissions of his wife and neighbours, as well as the personal impressions of the judge who had heard the applicant in person. Furthermore, the applicant had the right to challenge the appointment of a guardian before the courts as well as, following the Constitutional Court’s decision of 7 April 2015, periodically to apply to a court to have his legal capacity restored. 2. The Court’s assessment 117. The Court notes at the outset that it is not in dispute between the parties that the applicant’s deprivation of his legal capacity amounted to an interference with his right to private life guaranteed by Article 8 and it does not see any reason to hold otherwise, especially in view of various serious limitations to the applicant’s personal autonomy which that measure entailed (see Shtukaturov, cited above, § 83, and Lashin, cited above, § 77). 118. The Court reiterates that any interference with an individual’s right to respect for his private life will constitute a breach of Article 8 unless it was “in accordance with the law”, pursued a legitimate aim or aims under paragraph 2 and was “necessary in a democratic society” in the sense that it was proportionate to the aims sought. 119. In the present case, the applicant did not allege that the interference had not been lawful and the Court notes that it was based on Article 31 of the CC. Furthermore, the Court does not find it necessary to examine whether the interference pursued a legitimate aim since the decision to deprive the applicant of his legal capacity was in any event disproportionate to any legitimate aim pursued for the reasons set out below. 120. The Court reiterates that under Article 8 the authorities must strike a fair balance between the interests of a person of unsound mind and the other legitimate interests concerned. However, as a rule, in such a complex matter as determining somebody’s mental capacity, the authorities should enjoy a wide margin of appreciation. This is mostly explained by the fact that the national authorities have the benefit of direct contact with the persons concerned and are therefore particularly well placed to determine such issues. The task of the Court is rather to review under the Convention the decisions taken by the national authorities in the exercise of their powers in this respect (see Shtukaturov, cited above, § 87). 121. At the same time, the margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake (see Elsholz, cited above, § 49). A stricter scrutiny is called for in respect of very serious limitations in the sphere of private life. In this connection the Court is mindful that depriving someone of legal capacity entails grave consequences for various spheres of that person’s life (see Shtukaturov, cited above, § 88; X and Y v. Croatia, cited above, § 109; and Lashin, cited above, § 81). 122. In the present case the Court observes that, contrary to the Government’s claim, the judgment of 29 November 2013 declaring the applicant incapable relied solely on the psychiatric expert opinion of 25 September 2012 (see paragraph 25 above). The Court does not cast doubt on the competence of the doctors who examined the applicant and the findings of that report. However, the Court has held in a number of cases that the existence of a mental disorder, even a serious one, cannot be the sole reason to justify full deprivation of legal capacity. By analogy with the cases concerning deprivation of liberty, in order to justify full deprivation of legal capacity the mental disorder must be “of a kind or degree” warranting such a measure (see Shtukaturov, cited above, § 94, and Lashin, cited above, § 90). Both in Shtukaturov and Lashin the Court found that in the domestic proceedings the issue of “the kind and degree” of the applicant’s mental illness remained unresolved, since Russian law did not provide for any intermediate form of limitation of legal capacity for mentally ill persons and distinguished only between full capacity and full incapacity. 123. In the present case the Court faces essentially the same situation as in the above-mentioned cases. The Armenian law similarly did not provide for any borderline or tailor-made response in situations like the applicant’s and distinguished only between full capacity and full incapacity. Thus, the questions posed to the doctors, as formulated by the judge, similarly did not concern “the kind and degree” of the applicant’s mental illness. As a result, the psychiatric expert opinion of 25 September 2012 did not analyse the degree of the applicant’s incapacity in sufficient detail. It referred to the applicant’s overly suspicious and at times aggressive behaviour, incoherent thoughts and inclination for conflict, and concluded that the applicant suffered from delusional disorder and was therefore unable to understand his actions and to control them. At the same time, the report did not explain what kind of actions the applicant was incapable of understanding or controlling. The incidence of the applicant’s illness is unclear, as are the possible consequences of the applicant’s illness for his social life, health, pecuniary interests, and so on. The opinion of 25 September 2012 was not sufficiently clear on these points. Nor did it allege any self-destructive or otherwise grossly irresponsible behaviour on the part of the applicant or that he was partially or completely unable to take care of himself (see, mutatis mutandis, Shtukaturov, cited above, §§ 93-94, and Lashin, cited above, §§ 90-91). Assuming, nevertheless, that the applicant’s condition required some sort measure of protection in his respect, the Court notes that, as already indicated above, the domestic court had no other choice than to apply and maintain full incapacity – the most stringent measure which meant total loss of autonomy in nearly all areas of life (see, by contrast, A. ‑ M.V. v. Finland, no. 53251/13, §§ 89-90, 23 March 2017). 124. The Court also reiterates, as regards the relevant psychiatric expert opinion, that the objectivity of a medical expertise entails a requirement that it be sufficiently recent, while the question whether the medical expertise is sufficiently recent depends on the specific circumstances of the case (see Ilnseher v. Germany [GC], nos. 10211/12 and 27505/14, § 131, 4 December 2018). In the present case, the Court notes that the psychiatric expert opinion was issued on 25 September 2012, that is more than fourteen months before the judgment of the District Court declaring the applicant incapable and almost a year and a half before the decision of the Civil Court of Appeal upholding that judgment. That opinion, in the Court’s view, cannot be regarded as “up-to-date” within the meaning of Principle 12 of the above-mentioned Committee of Ministers Recommendation No. R (99) 4 (see, mutatis mutandis, H.F. v. Slovakia, no. 54797/00, § 41, 8 November 2005). Furthermore, it was the first time that the applicant had been subjected to a psychiatric medical examination, as he had no history of mental illness, and nothing in the case file suggests that the applicant’s condition was irreversible. The Court considers that, in such circumstances, the domestic courts should have sought some sort of fresh assessment of the applicant’s condition (see, mutatis mutandis, Lashin, cited above, §§ 83-84). The District Court, however, relied solely on that opinion without questioning whether it credibly reflected the applicant’s state of mental health at the material time, while the Civil Court of Appeal made reference to the absence of any evidence rebutting the findings of that report or suggesting that the applicant had recovered, despite the fact that it was the duty of the domestic courts to seek such evidence and, if necessary, to assign a new medical examination. 125. In the light of the above, the Court concludes that the measure imposed on the applicant was disproportionate to the legitimate aim pursued. As a result, the applicant’s rights under Article 8 were restricted more than was strictly necessary. 126. Having reached this conclusion, the Court considers it necessary to address the Government’s non-exhaustion objection. It notes, firstly, that while the applicant did not specifically use the word “proportionality” in his submissions before the domestic courts, he raised the question of the disproportionate nature of the interference in substance. Secondly, the Court notes that the full deprivation of the applicant’s legal capacity – a measure which the Court found to be disproportionate in the circumstances of the case – was, as already indicated above, the only measure which the domestic court was competent to apply under domestic law in the absence of any intermediate form of limitation of legal capacity for mentally ill persons. In other words, the domestic law itself deprived the domestic court of the possibility to assess the proportionality of the applicable measure in cases requiring a restriction of legal capacity. It is therefore doubtful that raising that issue, whether explicitly or in substance, had or could have had any prospects of success. In sum, the Court considers that the applicant has exhausted the domestic remedies and dismisses the Government’s objection. 127. Accordingly, there has been a violation of Article 8 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 128. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 129. The applicant claimed 10,000 euros (EUR) in respect of non ‑ pecuniary damage. 130. The Government submitted that the amount claimed by the applicant was excessive and should be reduced, should the Court find a breach of the applicant’s rights. 131. The Court considers that the applicant has undoubtedly suffered non-pecuniary damage. Making its assessment on an equitable basis and having regard to the circumstances of the case, the Court awards the applicant EUR 7,800 in respect of non-pecuniary damage. B. Costs and expenses 132. The applicant claimed EUR 3,900 for the costs and expenses incurred for his representation before the Court, comprising 76 hours of legal services at a rate of EUR 50 per hour. 133. The Government submitted that the applicant had failed to submit a contract with his representatives as a basis for the claim as regards costs and expenses. Therefore, they argued, the claim was unsubstantiated. 134. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the absence of any document supporting the claim, the Court decides to reject the applicant’s claim for costs and expenses. C. Default interest 135. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court found that the applicant’s lack of access to court in the divorce and eviction proceedings and to seek restoration of his legal capacity had breached Article 6 § 1 (right to a fair trial) of the Convention. It observed in particular that the applicant could neither pursue his divorce and eviction claim against his wife nor seek restoration of his legal capacity in court because Armenian law imposed a blanket ban on direct access to the courts for those declared incapable. That situation had been exacerbated by the fact that the authorities had appointed the applicant’s son as his legal guardian, despite their having a conflictual relationship. The Court also held that there had been a violation of Article 8 (right to respect for private life) in this case, finding that the applicant’s right to respect for his private life had been restricted more than had been strictly necessary. Indeed, the judgment depriving the applicant of his legal capacity had relied on just one, out dated psychiatric report, without analysing in any detail the degree of his mental disorder or taking into account that he had no history of such illness. |
761 | Assisted suicide | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Suicide, assisted suicide and consensual killing 16. Suicide ceased to be a crime in England and Wales by virtue of the Suicide Act 1961. However, section 2(1) of the Act provides: “A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years.” Section 2(4) provides: “No proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions.” 17. Case-law has established that an individual may refuse to accept life-prolonging or life-preserving treatment: “First it is established that the principle of self-determination requires that respect must be given to the wishes of the patient, so that if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so ... To this extent, the principle of the sanctity of human life must yield to the principle of self-determination ...” (Lord Goff in Airedale NHS Trust v. Bland [1993] AC 789, at p. 864) 18. This principle has been most recently affirmed in Ms B. v. an NHS Hospital, Court of Appeal judgment of 22 March 2002. It has also been recognised that “dual effect” treatment can be lawfully administered, that is treatment calculated to ease a patient's pain and suffering which might also, as a side-effect, shorten their life expectancy (see, for example, Re J [1991] Fam 3). B. Domestic review of the legislative position 19. In March 1980 the Criminal Law Revision Committee issued its fourteenth report, “Offences against the Person” (Cmnd 7844), in which it reviewed, inter alia, the law relating to the various forms of homicide and the applicable penalties. In Section F, the situation known as mercy killing was discussed. The previous suggestion of a new offence applying to a person who from compassion unlawfully killed another person permanently subject, for example, to great bodily pain and suffering and for which a two-year maximum sentence was applicable, was unanimously withdrawn. It was noted that the vast majority of the persons and bodies consulted were against the proposal on principle and on pragmatic grounds. Reference was made also to the difficulties of definition and the possibility that the “suggestion would not prevent suffering but would cause suffering, since the weak and handicapped would receive less effective protection from the law than the fit and well”. 20. It did however recommend that the penalty for assisting suicide be reduced to seven years, as being sufficiently substantial to protect helpless persons open to persuasion by the unscrupulous. 21. On 31 January 1994 the report of the House of Lords Select Committee on Medical Ethics (HL Paper 21-I) was published following its inquiry into the ethical, legal and clinical implications of a person's right to withhold consent to life-prolonging treatment, the position of persons unable to give or withhold consent and whether and in what circumstances the shortening of another person's life might be justified on the grounds that it accorded with that person's wishes or best interests. The Committee had heard oral evidence from a variety of government, medical, legal and non-governmental sources and received written submissions from numerous interested parties who addressed the ethical, philosophical, religious, moral, clinical, legal and public-policy aspects. 22. It concluded, as regards voluntary euthanasia: “236. The right to refuse medical treatment is far removed from the right to request assistance in dying. We spent a long time considering the very strongly held and sincerely expressed views of those witnesses who advocated voluntary euthanasia. Many of us have had experience of relatives or friends whose dying days or weeks were less than peaceful or uplifting, or whose final stages of life were so disfigured that the loved one seemed already lost to us, or who were simply weary of life ... Our thinking must also be coloured by the wish of every individual for a peaceful and easy death, without prolonged suffering, and by a reluctance to contemplate the possibility of severe dementia or dependence. We gave much thought too to Professor Dworkin's opinion that, for those without religious belief, the individual is best able to decide what manner of death is fitting to the life that has been lived. 237. Ultimately, however, we do not believe that these arguments are sufficient reason to weaken society's prohibition of intentional killing. That prohibition is the cornerstone of law and of social relationships. It protects each one of us impartially, embodying the belief that all are equal. We do not wish that protection to be diminished and we therefore recommend that there should be no change in the law to permit euthanasia. We acknowledge that there are individual cases in which euthanasia may be seen by some to be appropriate. But individual cases cannot reasonably establish the foundation of a policy which would have such serious and widespread repercussions. Moreover, dying is not only a personal or individual affair. The death of a person affects the lives of others, often in ways and to an extent which cannot be foreseen. We believe that the issue of euthanasia is one in which the interest of the individual cannot be separated from the interest of society as a whole. 238. One reason for this conclusion is that we do not think it possible to set secure limits on voluntary euthanasia ... 239. We are also concerned that vulnerable people – the elderly, sick or distressed – would feel pressure, whether real or imagined, to request early death. We accept that, for the most part, requests resulting from such pressure or from remediable depressive illness would be identified as such by doctors and managed appropriately. Nevertheless we believe that the message which society sends to vulnerable and disadvantaged people should not, however obliquely, encourage them to seek death, but should assure them of our care and support in life ...” 23. In light of the above, the Select Committee on Medical Ethics also recommended no change to the legislation concerning assisted suicide (paragraph 262). III. RELEVANT INTERNATIONAL MATERIALS 24. Recommendation 1418 (1999) of the Parliamentary Assembly of the Council of Europe recommended, inter alia, as follows (paragraph 9): “... that the Committee of Ministers encourage the member States of the Council of Europe to respect and protect the dignity of terminally ill or dying persons in all respects: ... c. by upholding the prohibition against intentionally taking the life of terminally ill or dying persons, while: THE LAW I. ADMISSIBILITY OF THE APPLICATION 32. The applicant, who is suffering from an incurable, degenerative disease, argued that fundamental rights under the Convention had been violated in her case by the refusal of the Director of Public Prosecutions to give an undertaking not to prosecute her husband if he were to assist her to end her life and by the state of English law which rendered assisted suicide in her case a criminal offence. The Government submitted that the application should be dismissed as manifestly ill-founded on the grounds either that the applicant's complaints did not engage any of the rights relied on by her or that any interferences with those rights were justified in terms of the exceptions allowed by the Convention's provisions. 33. The Court considers that the application as a whole raises questions of law which are sufficiently serious that their determination should depend on an examination of the merits. No other ground for declaring it inadmissible has been established. The application must therefore be declared admissible. Pursuant to Article 29 § 3 of the Convention, the Court will now consider the merits of the applicant's complaints. II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 34. The relevant parts of Article 2 of the Convention provide: “1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A. Submissions of the parties 1. The applicant 35. The applicant submitted that permitting her to be assisted in committing suicide would not be in conflict with Article 2 of the Convention, otherwise those countries in which assisted suicide was not unlawful would be in breach of this provision. Furthermore, Article 2 protected not only the right to life but also the right to choose whether or not to go on living. It protected the right to life and not life itself, while the sentence concerning deprivation of life was directed towards protecting individuals from third parties, namely the State and public authorities, not from themselves. Article 2 therefore acknowledged that it was for the individual to choose whether or not to go on living and protected her right to die to avoid inevitable suffering and indignity as the corollary of the right to life. In so far as the Keenan case referred to by the Government indicated that an obligation could arise for prison authorities to protect a prisoner who tried to take his own life, the obligation only arose because he was a prisoner and lacked, due to his mental illness, the capacity to take a rational decision to end his life (see Keenan v. the United Kingdom, no. 27229/95, ECHR 2001-III). 2. The Government 36. The Government submitted that the applicant's reliance on Article 2 was misconceived, being unsupported by direct authority and being inconsistent with existing authority and with the language of the provision. Article 2, guaranteeing one of the most fundamental rights, imposed primarily a negative obligation. Although it had in some cases been found to impose positive obligations, this concerned steps appropriate to safeguard life. In previous cases the State's responsibility under Article 2 to protect a prisoner had not been affected by the fact that he committed suicide (see Keenan, cited above) and it had also been recognised that the State was entitled to force-feed a prisoner on hunger strike (see X v. Germany, no. 10565/83, Commission decision of 9 May 1984, unreported). The wording of Article 2 expressly provided that no one should be deprived of their life intentionally, save in strictly limited circumstances which did not apply in the present case. The right to die was not the corollary, but the antithesis of the right to life. B. The Court's assessment 37. The Court's case-law accords pre-eminence to Article 2 as one of the most fundamental provisions of the Convention (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 45-46, §§ 146-47). It safeguards the right to life, without which enjoyment of any of the other rights and freedoms in the Convention is rendered nugatory. It sets out the limited circumstances when deprivation of life may be justified and the Court has applied a strict scrutiny when those exceptions have been relied on by the respondent States (ibid., p. 46, §§ 149-50). 38. The text of Article 2 expressly regulates the deliberate or intended use of lethal force by State agents. However, it has been interpreted as covering not only intentional killing but also the situations where it is permitted to “use force” which may result, as an unintended outcome, in the deprivation of life (ibid., p. 46, § 148). Furthermore, the Court has held that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-III, p. 1403, § 36). This obligation extends beyond a primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions; it may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual (see Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998-VIII, p. 3159, § 115, and Kılıç v. Turkey, no. 22492/93, §§ 62 and 76, ECHR 2000-III). More recently, in Keenan, Article 2 was found to apply to the situation of a mentally ill prisoner who disclosed signs of being a suicide risk (see Keenan, cited above, § 91). 39. The consistent emphasis in all the cases before the Court has been the obligation of the State to protect life. The Court is not persuaded that “the right to life” guaranteed in Article 2 can be interpreted as involving a negative aspect. While, for example in the context of Article 11 of the Convention, the freedom of association has been found to involve not only a right to join an association but a corresponding right not to be forced to join an association, the Court observes that the notion of a freedom implies some measure of choice as to its exercise (see Young, James and Webster v. the United Kingdom, judgment of 13 August 1981, Series A no. 44, pp. 21-22, § 52, and Sigurđur A. Sigurjónsson v. Iceland, judgment of 30 June 1993, Series A no. 264, pp. 15-16, § 35). Article 2 of the Convention is phrased in different terms. It is unconcerned with issues to do with the quality of living or what a person chooses to do with his or her life. To the extent that these aspects are recognised as so fundamental to the human condition that they require protection from State interference, they may be reflected in the rights guaranteed by other Articles of the Convention, or in other international human rights instruments. Article 2 cannot, without a distortion of language, be interpreted as conferring the diametrically opposite right, namely a right to die; nor can it create a right to self-determination in the sense of conferring on an individual the entitlement to choose death rather than life. 40. The Court accordingly finds that no right to die, whether at the hands of a third person or with the assistance of a public authority, can be derived from Article 2 of the Convention. It is confirmed in this view by the recent Recommendation 1418 (1999) of the Parliamentary Assembly of the Council of Europe (see paragraph 24 above). 41. The applicant has argued that a failure to acknowledge a right to die under the Convention would place those countries which do permit assisted suicide in breach of the Convention. It is not for the Court in this case to attempt to assess whether or not the state of law in any other country fails to protect the right to life. As it recognised in Keenan, the measures which may reasonably be taken to protect a prisoner from self-harm will be subject to the restraints imposed by other provisions of the Convention, such as Articles 5 and 8, as well as more general principles of personal autonomy (see Keenan, cited above, § 92 ). Similarly, the extent to which a State permits, or seeks to regulate, the possibility for the infliction of harm on individuals at liberty, by their own or another's hand, may raise conflicting considerations of personal freedom and the public interest that can only be resolved on examination of the concrete circumstances of the case (see, mutatis mutandis, Laskey, Jaggard and Brown v. the United Kingdom, judgment of 19 February 1997, Reports 1997-I). However, even if circumstances prevailing in a particular country which permitted assisted suicide were found not to infringe Article 2 of the Convention, that would not assist the applicant in this case, where the very different proposition – that the United Kingdom would be in breach of its obligations under Article 2 if it did not allow assisted suicide – has not been established. 42. The Court finds that there has been no violation of Article 2 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 43. Article 3 of the Convention provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Submissions of the parties 1. The applicant 44. Before the Court, the applicant focused her complaints principally on Article 3 of the Convention. She submitted that the suffering which she faced qualified as degrading treatment under Article 3 of the Convention. She suffered from a terrible, irreversible disease in its final stages and she would die in an exceedingly distressing and undignified manner as the muscles which controlled her breathing and swallowing weakened to the extent that she would develop respiratory failure and pneumonia. While the Government were not directly responsible for that treatment, it was established under the Court's case-law that under Article 3 the State owed to its citizens not only a negative obligation to refrain from inflicting such treatment but also a positive obligation to protect people from it. In this case, this obligation was to take steps to protect her from the suffering which she would otherwise have to endure. 45. The applicant argued that there was no room under Article 3 of the Convention for striking a balance between her right to be protected from degrading treatment and any competing interest of the community, as the right was an absolute one. In any event, the balance struck was disproportionate as English law imposed a blanket ban on assisting suicide regardless of the individual circumstances of the case. As a result of this blanket ban, the applicant had been denied the right to be assisted by her husband in avoiding the suffering awaiting her without any consideration having been given to the unique facts of her case, in particular that her intellect and capacity to make decisions were unimpaired by the disease, that she was neither vulnerable nor in need of protection, that her imminent death could not be avoided, that if the disease ran its course she would endure terrible suffering and indignity and that no one else was affected by her wish for her husband to assist her save for him and their family who were wholly supportive of her decision. Without such consideration of the facts of the case, the rights of the individual could not be protected. 46. The applicant also disputed that there was any scope for allowing any margin of appreciation under Article 3 of the Convention, although if there was, the Government could not be entitled to rely on such a margin in defence of a statutory scheme operated in such a way as to involve no consideration of her concrete circumstances. The applicant rejected as offensive the assertion of the Government that all those who were terminally ill or disabled and contemplating suicide were by definition vulnerable and that a blanket ban was necessary so as to protect them. Any concern as to protecting those who were vulnerable could be met by providing a scheme whereby assisted suicide was lawful provided that the individual in question could demonstrate that she had the capacity to come to such a decision and was not in need of protection. 2. The Government 47. The Government submitted that Article 3 was not engaged in this case. The primary obligation imposed by this provision was negative: the State must not inflict torture or inhuman or degrading treatment or punishment. The applicant's case was based rather on alleged positive obligations. The Court's case-law indicated that where positive obligations arose they were not absolute but must be interpreted in such a way as not to impose an impossible or disproportionate burden on the authorities. Positive obligations had hitherto been found to arise in three situations: where the State was under a duty to protect the health of a person deprived of liberty, where the State was required to take steps to ensure that persons within its jurisdiction were not subjected to torture or other prohibited treatment at the hands of private individuals and where the State proposed to take action in relation to an individual which would result in the infliction by another of inhuman or degrading treatment on him. None of these circumstances were relevant in the applicant's case, as she was not being mistreated by anyone, she was not complaining about the absence of medical treatment and no State action was being taken against her. 48. Even if Article 3 were engaged, it did not confer a legally enforceable right to die. In assessing the scope of any positive obligation, it was appropriate to have regard to the margin of appreciation properly afforded to the State in maintaining section 2 of the Suicide Act 1961. The Government submitted that the prohibition on assisted suicide struck a fair balance between the rights of the individual and the interests of the community, in particular as it properly respected the sanctity of life and pursued a legitimate objective, namely protecting the vulnerable; the matter had been carefully considered over the years by the Criminal Law Revision Committee and the House of Lords Select Committee on Medical Ethics; there were powerful arguments, and some evidence, to suggest that legalising voluntary euthanasia led inevitably to the practice of involuntary euthanasia; and the State had an interest in protecting the lives of the vulnerable, in which context they argued that anyone contemplating suicide would necessarily be psychologically and emotionally vulnerable, even if they were physically fit while those with disabilities might be in a more precarious position as being unable effectively to communicate their views. Furthermore, there was a general consensus in Council of Europe countries, where assisted suicide and consensual killing were unlawful in all countries except in the Netherlands. This consensus was also reflected in other jurisdictions outside Europe. B. The Court's assessment 49. Article 3 of the Convention, together with Article 2, must be regarded as one of the most fundamental provisions of the Convention and as enshrining core values of the democratic societies making up the Council of Europe (see Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, p. 34, § 88). In contrast to the other provisions in the Convention, it is cast in absolute terms, without exception or proviso, or the possibility of derogation under Article 15 of the Convention. 50. An examination of the Court's case-law indicates that Article 3 has been most commonly applied in contexts in which the risk to the individual of being subjected to any of the proscribed forms of treatment emanated from intentionally inflicted acts of State agents or public authorities (see, amongst other authorities, Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25). It may be described in general terms as imposing a primarily negative obligation on States to refrain from inflicting serious harm on persons within their jurisdiction. However, in light of the fundamental importance of Article 3, the Court has reserved to itself sufficient flexibility to address the application of that Article in other situations that might arise (see D. v. the United Kingdom, judgment of 2 May 1997, Reports 1997-III, p. 792, § 49). 51. In particular, the Court has held that the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman and degrading treatment or punishment, including such treatment administered by private individuals (see A. v. the United Kingdom, judgment of 23 September 1998, Reports 1998-VI, p. 2699, § 22). A positive obligation on the State to provide protection against inhuman or degrading treatment has been found to arise in a number of cases: see, for example, A. v. the United Kingdom (cited above) where the child applicant had been caned by his stepfather, and Z and Others v. the United Kingdom ([GC], no. 29392/95, ECHR 2001-V), where four child applicants were severely abused and neglected by their parents. Article 3 also imposes requirements on State authorities to protect the health of persons deprived of liberty (see Keenan, cited above, concerning the lack of effective medical care of a mentally ill prisoner who committed suicide, and also Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI). 52. As regards the types of “treatment” which fall within the scope of Article 3 of the Convention, the Court's case-law refers to “ill-treatment” that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering (see Ireland v. the United Kingdom, cited above, p. 66, § 167; V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX). Where treatment humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3 (see amongst recent authorities, Price v. the United Kingdom, no. 33394/96, §§ 24-30, ECHR 2001-VII, and Valašinas v. Lithuania, no. 44558/98, § 117, ECHR 2001-VIII). The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible (see D. v. the United Kingdom and Keenan, both cited above, and Bensaid v. the United Kingdom, no. 44599/98, ECHR 2000-I). 53. In the present case, it is beyond dispute that the respondent State has not, itself, inflicted any ill-treatment on the applicant. Nor is there any complaint that the applicant is not receiving adequate care from the State medical authorities. The situation of the applicant is therefore not comparable with that in D. v. the United Kingdom, in which an AIDS sufferer was threatened with removal from the United Kingdom to the island of St Kitts where no effective medical or palliative treatment for his illness was available and he would have been exposed to the risk of dying under the most distressing circumstances. The responsibility of the State would have been engaged by its act (“treatment”) of removing him in those circumstances. There is no comparable act or “treatment” on the part of the United Kingdom in the present case. 54. The applicant has claimed rather that the refusal of the DPP to give an undertaking not to prosecute her husband if he assisted her to commit suicide and the criminal-law prohibition on assisted suicide disclose inhuman and degrading treatment for which the State is responsible as it will thereby be failing to protect her from the suffering which awaits her as her illness reaches its ultimate stages. This claim, however, places a new and extended construction on the concept of treatment, which, as found by the House of Lords, goes beyond the ordinary meaning of the word. While the Court must take a dynamic and flexible approach to the interpretation of the Convention, which is a living instrument, any interpretation must also accord with the fundamental objectives of the Convention and its coherence as a system of human rights protection. Article 3 must be construed in harmony with Article 2, which hitherto has been associated with it as reflecting basic values respected by democratic societies. As found above, Article 2 of the Convention is first and foremost a prohibition on the use of lethal force or other conduct which might lead to the death of a human being and does not confer any right on an individual to require a State to permit or facilitate his or her death. 55. The Court cannot but be sympathetic to the applicant's apprehension that without the possibility of ending her life she faces the prospect of a distressing death. It is true that she is unable to commit suicide herself due to physical incapacity and that the state of law is such that her husband faces the risk of prosecution if he renders her assistance. Nonetheless, the positive obligation on the part of the State which is relied on in the present case would not involve the removal or mitigation of harm by, for instance, preventing any ill-treatment by public bodies or private individuals or providing improved conditions or care. It would require that the State sanction actions intended to terminate life, an obligation that cannot be derived from Article 3 of the Convention. 56. The Court therefore concludes that no positive obligation arises under Article 3 of the Convention to require the respondent State either to give an undertaking not to prosecute the applicant's husband if he assisted her to commit suicide or to provide a lawful opportunity for any other form of assisted suicide. There has, accordingly, been no violation of this provision. IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 57. Article 8 of the Convention provides as relevant: “1. Everyone has the right to respect for his private and family life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Submissions of the parties 1. The applicant 58. The applicant argued that, while the right to self-determination ran like a thread through the Convention as a whole, it was Article 8 in which that right was most explicitly recognised and guaranteed. It was clear that the right to self-determination encompassed the right to make decisions about one's body and what happened to it. She submitted that this included the right to choose when and how to die and that nothing could be more intimately connected to the manner in which a person conducted her life than the manner and timing of her death. It followed that the DPP's refusal to give an undertaking and the State's blanket ban on assisted suicide interfered with her rights under Article 8 § 1. 59. The applicant argued that there must be particularly serious reasons for interfering with such an intimate part of her private life. However, the Government had failed to show that the interference was justified as no consideration had been given to her individual circumstances. She referred here to the arguments also raised in the context of Article 3 of the Convention (see paragraphs 45-46 above). 2. The Government 60. The Government argued that the rights under Article 8 were not engaged as the right to private life did not include a right to die. It covered the manner in which a person conducted her life, not the manner in which she departed from it. Otherwise, the alleged right would extinguish the very benefit on which it was based. Even if they were wrong on this, any interference with rights under Article 8 would be fully justified. The State was entitled, within its margin of appreciation, to determine the extent to which individuals could consent to the infliction of injuries on themselves and so was even more clearly entitled to determine whether a person could consent to being killed. B. The Court's assessment 1. Applicability of Article 8 § 1 of the Convention 61. As the Court has had previous occasion to remark, the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person (see X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p. 11, § 22). It can sometimes embrace aspects of an individual's physical and social identity (see Mikulić v. Croatia, no. 53176/99, § 53, ECHR 2002-I). Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8 (see, for example, B. v. France, judgment of 25 March 1992, Series A no. 232-C, pp. 53-54, § 63; Burghartz v. Switzerland, judgment of 22 February 1994, Series A no. 280-B, p. 28, § 24; Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, pp. 18-19, § 41; and Laskey, Jaggard and Brown, cited above, p. 131, § 36). Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world (see, for example, Burghartz, cited above, opinion of the Commission, p. 37, § 47, and Friedl v. Austria, judgment of 31 January 1995, Series A no. 305-B, opinion of the Commission, p. 20, § 45). Although no previous case has established as such any right to self-determination as being contained in Article 8 of the Convention, the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees. 62. The Government have argued that the right to private life cannot encapsulate a right to die with assistance, such being a negation of the protection that the Convention was intended to provide. The Court would observe that the ability to conduct one's life in a manner of one's own choosing may also include the opportunity to pursue activities perceived to be of a physically or morally harmful or dangerous nature for the individual concerned. The extent to which a State can use compulsory powers or the criminal law to protect people from the consequences of their chosen lifestyle has long been a topic of moral and jurisprudential discussion, the fact that the interference is often viewed as trespassing on the private and personal sphere adding to the vigour of the debate. However, even where the conduct poses a danger to health or, arguably, where it is of a life-threatening nature, the case-law of the Convention institutions has regarded the State's imposition of compulsory or criminal measures as impinging on the private life of the applicant within the meaning of Article 8 § 1 and requiring justification in terms of the second paragraph (see, for example, concerning involvement in consensual sado-masochistic activities which amounted to assault and wounding, Laskey, Jaggard and Brown, cited above, and concerning refusal of medical treatment, Acmanne and Others v. Belgium, no. 10435/83, Commission decision of 10 December 1984, Decisions and Reports (DR) 40, p. 251). 63. While it might be pointed out that death was not the intended consequence of the applicants'conduct in the above situations, the Court does not consider that this can be a decisive factor. In the sphere of medical treatment, the refusal to accept a particular treatment might, inevitably, lead to a fatal outcome, yet the imposition of medical treatment, without the consent of a mentally competent adult patient, would interfere with a person's physical integrity in a manner capable of engaging the rights protected under Article 8 § 1 of the Convention. As recognised in domestic case-law, a person may claim to exercise a choice to die by declining to consent to treatment which might have the effect of prolonging his life (see paragraphs 17-18 above). 64. In the present case, although medical treatment is not an issue, the applicant is suffering from the devastating effects of a degenerative disease which will cause her condition to deteriorate further and increase her physical and mental suffering. She wishes to mitigate that suffering by exercising a choice to end her life with the assistance of her husband. As stated by Lord Hope, the way she chooses to pass the closing moments of her life is part of the act of living, and she has a right to ask that this too must be respected (see paragraph 15 above). 65. The very essence of the Convention is respect for human dignity and human freedom. Without in any way negating the principle of sanctity of life protected under the Convention, the Court considers that it is under Article 8 that notions of the quality of life take on significance. In an era of growing medical sophistication combined with longer life expectancies, many people are concerned that they should not be forced to linger on in old age or in states of advanced physical or mental decrepitude which conflict with strongly held ideas of self and personal identity. 66. In Rodriguez v. the Attorney General of Canada ([1994] 2 Law Reports of Canada 136), which concerned a not dissimilar situation to the present, the majority opinion of the Supreme Court considered that the prohibition on the appellant in that case receiving assistance in suicide contributed to her distress and prevented her from managing her death. This deprived her of autonomy and required justification under principles of fundamental justice. Although the Canadian court was considering a provision of the Canadian Charter framed in different terms from those of Article 8 of the Convention, comparable concerns arose regarding the principle of personal autonomy in the sense of the right to make choices about one's own body. 67. The applicant in this case is prevented by law from exercising her choice to avoid what she considers will be an undignified and distressing end to her life. The Court is not prepared to exclude that this constitutes an interference with her right to respect for private life as guaranteed under Article 8 § 1 of the Convention. It considers below whether this interference conforms with the requirements of the second paragraph of Article 8. 2. Compliance with Article 8 § 2 of the Convention 68. An interference with the exercise of an Article 8 right will not be compatible with Article 8 § 2 unless it is “in accordance with the law”, has an aim or aims that is or are legitimate under that paragraph and is “necessary in a democratic society” for the aforesaid aim or aims (see Dudgeon, cited above, p. 19, § 43). 69. The only issue arising from the arguments of the parties is the necessity of any interference, it being common ground that the restriction on assisted suicide in this case was imposed by law and in pursuit of the legitimate aim of safeguarding life and thereby protecting the rights of others. 70. According to the Court's established case-law, the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued; in determining whether an interference is “necessary in a democratic society”, the Court will take into account that a margin of appreciation is left to the national authorities, whose decision remains subject to review by the Court for conformity with the requirements of the Convention. The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. 71. The Court recalls that the margin of appreciation has been found to be narrow as regards interferences in the intimate area of an individual's sexual life (see Dudgeon, cited above, p. 21, § 52, and A.D.T. v. the United Kingdom, no. 35765/97, § 37, ECHR 2000-IX). Although the applicant has argued that there must therefore be particularly compelling reasons for the interference in her case, the Court does not find that the matter under consideration in this case can be regarded as of the same nature, or as attracting the same reasoning. 72. The parties'arguments have focused on the proportionality of the interference as disclosed in the applicant's case. The applicant attacked in particular the blanket nature of the ban on assisted suicide as failing to take into account her situation as a mentally competent adult who knows her own mind, who is free from pressure and who has made a fully informed and voluntary decision, and therefore cannot be regarded as vulnerable and requiring protection. This inflexibility means, in her submission, that she will be compelled to endure the consequences of her incurable and distressing illness, at a very high personal cost. 73. The Court would note that although the Government argued that the applicant, as a person who is both contemplating suicide and severely disabled, must be regarded as vulnerable, this assertion is not supported by the evidence before the domestic courts or by the judgments of the House of Lords which, while emphasising that the law in the United Kingdom was there to protect the vulnerable, did not find that the applicant was in that category. 74. Nonetheless, the Court finds, in agreement with the House of Lords and the majority of the Canadian Supreme Court in Rodriguez, that States are entitled to regulate through the operation of the general criminal law activities which are detrimental to the life and safety of other individuals (see also Laskey, Jaggard and Brown, cited above, pp. 132-33, § 43). The more serious the harm involved the more heavily will weigh in the balance considerations of public health and safety against the countervailing principle of personal autonomy. The law in issue in this case, section 2 of the 1961 Act, was designed to safeguard life by protecting the weak and vulnerable and especially those who are not in a condition to take informed decisions against acts intended to end life or to assist in ending life. Doubtless the condition of terminally ill individuals will vary. But many will be vulnerable and it is the vulnerability of the class which provides the rationale for the law in question. It is primarily for States to assess the risk and the likely incidence of abuse if the general prohibition on assisted suicides were relaxed or if exceptions were to be created. Clear risks of abuse do exist, notwithstanding arguments as to the possibility of safeguards and protective procedures. 75. The applicant's counsel attempted to persuade the Court that a finding of a violation in this case would not create a general precedent or any risk to others. It is true that it is not this Court's role under Article 34 of the Convention to issue opinions in the abstract but to apply the Convention to the concrete facts of the individual case. However, judgments issued in individual cases establish precedents albeit to a greater or lesser extent and a decision in this case could not, either in theory or practice, be framed in such a way as to prevent application in later cases. 76. The Court does not consider therefore that the blanket nature of the ban on assisted suicide is disproportionate. The Government have stated that flexibility is provided for in individual cases by the fact that consent is needed from the DPP to bring a prosecution and by the fact that a maximum sentence is provided, allowing lesser penalties to be imposed as appropriate. The Select Committee report indicated that between 1981 and 1992 in twenty-two cases in which “mercy killing” was an issue, there was only one conviction for murder, with a sentence of life imprisonment, while lesser offences were substituted in the others and most resulted in probation or suspended sentences (paragraph 128 of the report cited at paragraph 21 above). It does not appear to be arbitrary to the Court for the law to reflect the importance of the right to life, by prohibiting assisted suicide while providing for a system of enforcement and adjudication which allows due regard to be given in each particular case to the public interest in bringing a prosecution, as well as to the fair and proper requirements of retribution and deterrence. 77. Nor in the circumstances is there anything disproportionate in the refusal of the DPP to give an advance undertaking that no prosecution would be brought against the applicant's husband. Strong arguments based on the rule of law could be raised against any claim by the executive to exempt individuals or classes of individuals from the operation of the law. In any event, the seriousness of the act for which immunity was claimed was such that the decision of the DPP to refuse the undertaking sought in the present case cannot be said to be arbitrary or unreasonable. 78. The Court concludes that the interference in this case may be justified as “necessary in a democratic society” for the protection of the rights of others and, accordingly, that there has been no violation of Article 8 of the Convention. V. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION 79. Article 9 of the Convention provides: “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” A. Submissions of the parties 1. The applicant 80. The applicant submitted that Article 9 protected the right to freedom of thought, which has hitherto included beliefs such as veganism and pacifism. In seeking the assistance of her husband to commit suicide, the applicant believed in and supported the notion of assisted suicide for herself. In refusing to give the undertaking not to prosecute her husband, the DPP had interfered with this right as had the United Kingdom in imposing a blanket ban which allowed no consideration of the applicant's individual circumstances. For the same reasons as applied under Article 8 of the Convention, that interference had not been justified under Article 9 § 2. 2. The Government 81. The Government disputed that any issue arose within the scope of this provision. Article 9 protected freedom of thought, conscience and religion and the manifestation of those beliefs and did not confer any general right on individuals to engage in any activities of their choosing in pursuance of whatever beliefs they may hold. Alternatively, even if there was any restriction in terms of Article 9 § 1 of the Convention, such was justifiable under the second paragraph for the same reasons as set out in relation to Articles 3 and 8 of the Convention. B. The Court's assessment 82. The Court does not doubt the firmness of the applicant's views concerning assisted suicide but would observe that not all opinions or convictions constitute beliefs in the sense protected by Article 9 § 1 of the Convention. Her claims do not involve a form of manifestation of a religion or belief, through worship, teaching, practice or observance as described in the second sentence of the first paragraph. As found by the Commission, the term “practice” as employed in Article 9 § 1 does not cover each act which is motivated or influenced by a religion or belief (see Arrowsmith v. the United Kingdom, no. 7050/77, Commission's report of 12 October 1978, DR 19, p. 19, § 71). To the extent that the applicant's views reflect her commitment to the principle of personal autonomy, her claim is a restatement of the complaint raised under Article 8 of the Convention. 83. The Court concludes that there has been no violation of Article 9 of the Convention. VI. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 84. Article 14 of the Convention provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. Submissions of the parties 1. The applicant 85. The applicant submitted that she suffered from discrimination as a result of being treated in the same way as those whose situations were significantly different. Although the blanket ban on assisted suicide applied equally to all individuals, the effect of its application to her when she was so disabled that she could not end her life without assistance was discriminatory. She was prevented from exercising a right enjoyed by others who could end their lives without assistance because they were not prevented by any disability from doing so. She was therefore treated substantively differently and less favourably than those others. As the only justification offered by the Government for the blanket ban was the need to protect the vulnerable and as the applicant was not vulnerable or in need of protection, there was no reasonable or objective justification for this difference in treatment. 2. The Government 86. The Government argued that Article 14 of the Convention did not come into play as the applicant's complaints did not engage any of the substantive rights she relied on. Alternatively, there was no discrimination as the applicant could not be regarded as being in a relevantly similar situation to those who were able to take their own lives without assistance. Even assuming Article 14 was in issue, section 2(1) of the Suicide Act 1961 was not discriminatory as domestic law conferred no right to commit suicide and the policy of the law was firmly against suicide. The policy of the criminal law was to give weight to personal circumstances either at the stage of considering whether or not to prosecute or in the event of conviction, when penalty was to be considered. Furthermore, there was clear reasonable and objective justification for any alleged difference in treatment, reference being made to the arguments advanced under Articles 3 and 8 of the Convention. B. The Court's assessment 87. The Court has found above that the applicant's rights under Article 8 of the Convention were engaged (see paragraphs 61-67). It must therefore consider the applicant's complaints that she has been discriminated against in the enjoyment of the rights guaranteed under that provision in that domestic law permits able-bodied persons to commit suicide yet prevents an incapacitated person from receiving assistance in committing suicide. 88. For the purposes of Article 14 a difference in treatment between persons in analogous or relevantly similar positions is discriminatory if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. Moreover, the Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Camp and Bourimi v. the Netherlands, no. 28369/95, § 37, ECHR 2000-X). Discrimination may also arise where States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different (see Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV). 89. Even if the principle derived from Thlimmenos was applied to the applicant's situation however, there is, in the Court's view, objective and reasonable justification for not distinguishing in law between those who are and those who are not physically capable of committing suicide. Under Article 8 of the Convention, the Court has found that there are sound reasons for not introducing into the law exceptions to cater for those who are deemed not to be vulnerable (see paragraph 74 above). Similar cogent reasons exist under Article 14 for not seeking to distinguish between those who are able and those who are unable to commit suicide unaided. The borderline between the two categories will often be a very fine one and to seek to build into the law an exemption for those judged to be incapable of committing suicide would seriously undermine the protection of life which the 1961 Act was intended to safeguard and greatly increase the risk of abuse. 90. Consequently, there has been no violation of Article 14 of the Convention in the present case. | Although no previous case had established as such any right to self-determination as being contained in Article 8 (right to respect for private and family life) of the Convention, the Court considered that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees. In the present case, the applicant was suffering from the devastating effects of a degenerative disease which would cause her condition to deteriorate further and increase her physical and mental suffering. Without in any way negating the principle of sanctity of life, it is under Article 8 that notions of the quality of life take on significance and it could not be excluded that preventing the applicant from exercising her choice to avoid an undignified and distressing end to her life constituted an interference with her right to respect for her private life. Article 8 of the Convention was therefore applicable. In the present case, the Court held that there had been no violation of Article 8 of the Convention, finding that the interference in issue may be justified as necessary in a democratic society for the protection of the rights of others. Doubtless the condition of terminally ill individuals will vary. But many will be vulnerable and it is the vulnerability of the class which provided the rationale for the law in issue. It is primarily for States to assess the risk and the likely incidence of abuse if the general prohibition on assisted suicides were relaxed or if exceptions were to be created. |
100 | Withdrawal of parental authority, placement of children, and disabled parents’ access rights to their children | II. RELEVANT DOMESTIC AND COMPARATIVE LAW A. Domestic law 17. The Family Act ( Obiteljski zakon, Official Gazette no. 116/2003 of 22 July 2003), in so far as relevant, reads as follows: Section 114 “(1) A court shall, in non-contentious proceedings, divest a person of his or her parental rights if he or she abuses or seriously infringes parental responsibility, obligations and rights. (2) A parent shall be considered to have abused or seriously infringed parental responsibility, obligations and rights if he or she: 1. has inflicted bodily or psychological harm on a child, including exposing that child to violence between adult members of the child’s family; 2. has sexually abused a child; 3. has exploited a child by forcing it to carry out excessive labour or labour that is not compatible with the child’s age; 4. has allowed a child to consume alcoholic drinks, drugs or other narcotics; 5. has incited a child to socially unacceptable behaviour; 6. has abandoned a child; 7. has not provided for a child with whom he or she lives for a period exceeding three months; 8. has not created, without good reason, adequate conditions for living with a child with whom he or she does not live; 9. has not provided for the basic needs of a child with whom he or she lives or has not complied with the measures imposed by the competent body aimed at the protection of the child’s wellbeing; 10. has abused the rights of a child in another manner. (3) The competent welfare centre shall institute proceedings for divesting a parent of parental rights as soon as it learns about the circumstances under paragraph 2 of this section. Such proceedings may also be instituted by the other parent, a child or a court of its own motion. (4) The parental rights shall be restored by a court decision when the reasons for divesting a parent of such rights cease to exist. (5) Proceedings under paragraph 4 of this section may be instituted by the parent who has been divested of his or her parental rights, or by a social welfare centre. (6) Where the proceedings for divesting one or both parents of parental rights have been instituted the competent welfare centre shall appoint a special guardian to the child concerned. ...” Section 119 “(1) Once adoption has been established parental custody [of the adopted child] shall cease. ...” Section 125 “(1) Adoption may be established if it is in the interest of the child. ...” Section 129 “(1) Adoption shall require the consent of both parents, except where otherwise provided. ...” Section 130 “Adoption shall not require the consent of a parent who is ... 1. divested of parental rights ...” Section 135 “(1) Adoption proceedings shall be carried out by the competent welfare centre of its own motion ...” Section 138 ... “(3) A parent whose consent for adoption is not required shall not be a party to the adoption proceedings.” Section 139 “If necessary, the competent welfare centre shall hear the child’s other relatives about the circumstances relevant to the adoption decision.” Section 144 “(1) Once adoption has taken place, all rights and obligations between the child and his blood relatives shall cease. ...” Section 267 “The court [conducting the proceedings] shall be particularly mindful that the rights and interests of children, persons suffering from mental ailments or persons who, for other reasons, are not able to care for themselves and protect their rights and interests, are adequately protected.” B. Participation in adoption proceedings for a parent divested of his/her parental rights in the law of other Council of Europe Member States 18. The comparative review as regards the extent to which a parent divested of his/her parental rights is entitled to participate in subsequent adoption proceedings of his/her child concerns forty-one member States of the Council of Europe, namely, Albania, Armenia, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Estonia, Cyprus, Czech Republic, Finland, France, Former Yugoslav Republic of Macedonia, Georgia, Germany, Greece, Hungary, Italy, Ireland, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Monaco, Montenegro, the Netherlands, Norway, Poland, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom (England and Wales). 19. The forty-one member States under consideration give a varied picture of legislation in respect of the participation of parents divested of their parental rights in subsequent adoption proceedings. In twelve of them, namely, in Austria, Belgium, Cyprus, Finland, Germany, Liechtenstein, Malta, the Netherlands, Portugal, Romania, Switzerland and the United Kingdom the divestment of parental rights has no effect per se on the generally necessary consent of a birth parent to adoption. In most of these jurisdictions, however, the consent of the birth parent can be dispensed with on grounds very similar to the ones allowing for prior divestment proceedings. 20. In Cyprus, for instance, the court may dispense with the consent of the birth parent if the parent abandoned, neglected or abused the child or systematically failed to fulfil parental duties, especially regarding nutrition and maintenance. 21. In Germany, a substitution of the otherwise always necessary consent of a parent to an adoption is possible in cases similar to those where the deprivation of parental rights can be justified, including persistent and gross/particularly serious violation of parental duties or indifference to the child amounting to such a persistent and gross breach of duty. The consent of a parent may further be dispensed with where he/she is permanently incapable of caring for and bringing up the child as the result of a particularly serious psychological illness or a particularly serious mental or psychological handicap and the child’s development would as a result be seriously endangered. The person whose consent is to be substituted for that of the parent is party to the proceedings and is to be heard as such. 22. In Belgium denial of consent can be regarded as abusive by the court, thus justifying it being disregarded. Likewise, in Austria, consent can be replaced by a court order if there is no justification for refusal of consent. 23. In the Netherlands, the birth parents’ inherent right to veto an adoption may be disregarded if the child and the parent have hardly ever lived together as a family, if the parent has abused his or her authority over the child, if he or she has seriously neglected the care and upbringing of the child or if the parent has been irrevocably convicted of a criminal offence equally capable of justifying the divestment of parental rights. In case-law it has been established that a veto may also be disregarded if the parent has abused the right of veto. In this respect, the Supreme Court of the Netherlands held that a parent, in exercising the right of veto, is under the obligation to attach particular weight to the interests of the child. 24. In Malta deprivation of parental rights does not automatically lead to the loss of participatory rights in adoption proceedings for the birth parents, but the very fact of the deprivation may be brought up by the court to justify dispensing with their otherwise necessary consent to adoption. Furthermore, for reasons of abandonment, neglect or abuse of the child, and also if the court is satisfied that it is in the best interest of the child to be adopted, parental consent can be dispensed with. 25. In Portugal parents divested of their parental rights participate, as a rule, in the adoption proceedings and their consent to it is necessary, unless the child has already been placed in foster care further to a judicial decision or in a family or an institution for the purpose of adoption. After the placement of the child in a family selected for adoption or in an institution for the purpose of adoption no participation rights in the adoption proceedings remain for the birth parents. 26. In Romania the birth parents lose all participatory rights in adoption proceedings from the time when the child is placed under guardianship. In this case the guardian’s consent is needed for the adoption. 27. Depending on the structure of the relevant national legislation, either an otherwise necessary parental consent to an adoption can be dispensed with under certain circumstances or, from the outset, the participatory rights of the birth parents are overridden for reasons comparable to the ones justifying disposal of the consent. It is not necessarily obvious that the latter setting automatically awards the parent with fewer rights than the former. If a parent whose consent is dispensed with has no additional right to be heard in the adoption proceedings, for example, to explain the refusal of the consent, his/her position can be equivalent to that of a parent whose participation rights have been overridden in the first place. A double guarantee of this kind, namely a right to consent to an adoption backed by a separate right to be heard in the event that the former is dispensed with, is provided for in Germany. Similarly, in the Netherlands, exercise of the right to veto an adoption - afforded also to parents divested of their parental rights - inherently requires the active participation of the parent in the adoption proceedings. 28. In nine member States, namely Bulgaria, Former Yugoslav Republic of Macedonia, Ireland, Italy, Lithuania, Monaco, Norway, Poland and Sweden, a participation right is awarded to the parent divested of his/her parental rights from the outset in adoption proceedings, taking the form of a right to be informed of the adoption proceedings and a right to be heard or to give their opinion without that opinion having any binding effect upon the court. 29. In Italy the birth parents shall be informed of the initiation of pre-adoption proceedings by the court and they may become party to the proceedings as well as be represented by counsel. 30. In Bulgaria, Ireland, Lithuania and Sweden the birth parents are invited to express their views and opinions in the adoption proceedings even though these have no binding effect on the court. 31. In Former Yugoslav Republic of Macedonia and Poland the birth parents participate in the proceedings as third parties or interested parties. 32. In twenty of the member States under consideration here, namely in Albania, Armenia, Bosnia and Herzegovina, Czech Republic, Estonia, France, Georgia, Greece, Hungary, Latvia, Luxembourg, Moldova, Montenegro, Russia, Serbia, Slovakia, Slovenia, Spain, Turkey and Ukraine, a parent divested of parental rights is not afforded a role of any kind in the following adoption proceedings. 33. In most of these member States the right to participate is expressly ruled out. In Albania and the Czech Republic, however, no regulations exist suggesting a role in adoption proceedings for parents divested of their parental rights and whose consent is thus not needed for the adoption. There is, however, also no express prohibition in this regard. C. International law 34. The UN Convention on the Rights of the Child of 20 November 1989, which entered into force in respect of Croatia on 8 October 1991 (Official Gazette - International Agreements 15/1990), in so far as relevant, reads as follows: Article 9 “1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.” “2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.” Article 21 “States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall: (a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary ...” 35. On 15 January 2001 the Council of Europe’s Committee of Experts on Family Law adopted a White Paper on principles concerning the establishment and legal consequences of parentage. The relevant part reads as follows: Principle 15: “1. An adoption shall not be granted unless at least the following consents to the adoption has been given and not withdrawn: the consent of the mother the consent of the father. States may also require the consent of the child considered by the internal law as having sufficient understanding. 2. The law may dispense with the consent of the father or of the mother or of both if they are not holders of parental responsibilities or if this consent cannot be obtained, in particular if the whereabouts of the mother or of the father or of both is unknown and they cannot be found or are dead. 3. The competent authority may overrule the refusal to consent of any person mentioned in paragraph 1 only on exceptional grounds determined by law.” 36. The European Convention on the Adoption of Children of 2008 (revised), elaborated within the Council of Europe, entered into force on 1 September 2011, has been ratified by seven States and signed by fifteen, but not Croatia. It mainly confirmed the principles of the 1967 Convention of the same name. Article 5 of the 2008 Convention provides as follows: Article 5 – Consents to an adoption “1 Subject to paragraphs 2 to 5 of this article, an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn: a the consent of the mother and the father; or if there is neither father nor mother to consent, the consent of any person or body who is entitled to consent in their place; b the consent of the child considered by law as having sufficient understanding; a child shall be considered as having sufficient understanding on attaining an age which shall be prescribed by law and shall not be more than 14 years; c the consent of the spouse or registered partner of the adopter. 2 The persons whose consent is required for adoption must have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin. The consent must have been given freely, in the required legal form, and expressed or evidenced in writing. 3 The competent authority shall not dispense with the consent or overrule the refusal to consent of any person or body mentioned in paragraph 1 save on exceptional grounds determined by law. However, the consent of a child who suffers from a disability preventing the expression of a valid consent may be dispensed with. 4 If the father or mother is not a holder of parental responsibility in respect of the child, or at least of the right to consent to an adoption, the law may provide that it shall not be necessary to obtain his or her consent. 5 A mother’s consent to the adoption of her child shall be valid when it is given at such time after the birth of the child, not being less than six weeks, as may be prescribed by law, or, if no such time has been prescribed, at such time as, in the opinion of the competent authority, will have enabled her to recover sufficiently from the effects of giving birth to the child. 6 For the purposes of this Convention “father” and “mother” mean the persons who according to law are the parents of the child.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 37. The first applicant complained that hers and her son’s right to respect for family life had been infringed in that she could not effectively participate in the proceedings concerning her parental rights, and that her son was put up for adoption without her knowledge, consent or participation in the adoption proceedings. She relied on Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 1. The parties’ arguments 38. The Government argued that the first applicant had no locus standi as regards L. and that the only persons who could have brought any complaints on his behalf were his adoptive parents, since his adoption had become final on 15 October 2010. 39. They further contended that Article 8 was not applicable to the present case, arguing that the relationship between the first applicant and her son had deteriorated to such an extent that it no longer represented a family life and that their blood relation alone was not enough to maintain it. They stressed that the child had been placed in a foster family from its birth, that the first applicant had ceased to care for the child, and that the child had been adopted by third persons. 40. The Government also maintained that the first applicant had failed to exhaust all available domestic remedies since she had not lodged an appeal against the decision of the K. Municipal Court of 10 May 2010 depriving her of her parental rights in respect of L. and subsequently a constitutional complaint in the event that her appeal was unsuccessful. 41. They finally submitted that the application had been lodged outside the six-month time-limit as the final domestic decision depriving the first applicant of her parental rights had been adopted on 10 May 2010 and served on her on 17 May 2010. 42. As regards her right to represent L., the first applicant replied that even though she had been divested of her parental rights, she nevertheless had the right to bring complaints on behalf of her biological child in order to protect his interests. 43. The first applicant contested the Government’s arguments as to the applicability of Article 8 and asserted that removing a child from its parent’s care, divesting the parent of parental rights and putting a child up for adoption were all extreme measures, which in her case had had an enormous effect on her family life. 44. As regards the exhaustion of domestic remedies, the first applicant submitted that she had not lodged an appeal against the decision of 10 May 2010 because she was not able to understand the legal issues and the meaning of the court proceedings. Since she had been unrepresented in those proceedings, she had not been able to use any remedies. 45. As regards the compliance with the six-month rule, the first applicant replied that she could not understand the meaning of the proceedings for divesting her of her parental rights and the effect of that decision and that only by chance had she been made aware of the true meaning of the decisions adopted. She had then applied for legal aid and used all the legal paths that had still been at her disposal, such as a request that her parental rights in respect of L. be restored. The final decision in those proceedings was adopted on 28 January 2011. 2. The Court’s assessment (a) Standing of the first applicant to act on behalf of L. 46. The Court observes that following the decision of 10 May 2010, depriving the first applicant of her parental rights, the legal parental ties between the first applicant and her son L. were severed. L. was subsequently put up for adoption and the adoption was finalised on 15 October 2010. This factor is not, however, decisive of whether the first applicant is able to introduce complaints on behalf of L. The conditions governing the individual applications under the Convention are not necessarily the same as national criteria relating to locus standi. National rules in this respect may serve purposes different from those contemplated by Article 34 and, while those purposes may sometimes be analogous, they need not always be so (see, mutatis mutandis, Norris v. Ireland, 26 October 1988, § 31, Series A no. 142). 47. The Court would draw attention to the principle that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions, both procedural and substantive, be interpreted and applied so as to render its safeguards both practical and effective (see amongst other authorities, Loizidou v. Turkey (preliminary objections), 23 March 1995, §§ 70-72, Series A no. 310). The position of children under Article 34 calls for careful consideration, as children must generally rely on other persons to present their claims and represent their interests, and may not be of an age or capacity to authorise any steps to be taken on their behalf in any real sense ( P.C. and S. v. the United Kingdom (dec.), no. 56547/00, 11 November 2001). The Court considers that a restrictive or technical approach in this area is to be avoided. 48. In the present case the Court notes that L. was adopted and that his legal representatives under the national law are now his adoptive parents. Therefore, in respect of any issues concerning the facts occurred after the adoption had become final, his only representatives under national law would be his adoptive parents. However, all issues relevant for his right to respect for his private and family life which occurred in the proceedings concerning the severing of his ties with his biological mother before his adoption, should be examined by the Court (see, mutatis mutandis, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, ECHR 2000-VIII, § 138; Moretti and Benedetti v. Italy, no. 16318/07, § 32, 27 April 2010; Z. v. Slovenia, no. 43155/05, § 114, 30 November 2010; Diamante and Pelliccioni v. San Marino, no. 32250/08, § 146, 27 September 2011; and M.D. and Others v. Malta, no. 64791/10, § 27, 17 July 2012). 49. In that respect the Court notes that it is in principle in the interest of a child to preserve the ties with its biological parents, save where weighty reasons exist to justify severing those ties. In the present proceedings before the Court L., owing to his tender age, is not in a position to represent his interests. It is only the first applicant who is able to argue, on his behalf as well, that severing the ties between her as his biological mother and L. also affected his right to respect for his family life. 50. The Court accordingly concludes that the Government’s objection as regards the locus standi of the first applicant to represent L. in the proceedings before the Court must be dismissed. (b) Applicability of Article 8 of the Convention to the present case 51. In its well established case-law the Court has emphasised that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life. Furthermore, the natural family relationship is not terminated by reason of the fact that the child is taken into public care (see Johansen v. Norway, 7 August 1996, § 52, Reports of Judgments and Decisions 1996 ‑ III, and Olsson v. Sweden (no. 1), 24 March 1988, § 59, Series A no. 130). 52. As to the present case, the Court notes that the first applicant gave birth to her son, L. in December 2008. Although the child was placed in a foster family soon after his birth, it would appear that the first applicant continued to visit her son. The Court has already held that family ties exist between a child and its biological parent with whom the child has never lived (see Keegan v. Ireland, 26 May 1994, § 45, Series A no. 290). In the Court’s view there existed a bond between the first applicant and her son from the moment of the child’s birth which bond amounted to a “family life”. Therefore, Article 8 is applicable in the present case. (c) Exhaustion of domestic remedies and compliance with the six-month rule 53. The Court notes that the applicants’ complaints relate to a series of events which ended with the adoption of L. Different proceedings took place before the national authorities. The Court considers that the question of exhaustion of domestic remedies, as submitted by the Government, as well as the issue of compliance with the six-month rule are closely linked to the substance of the complaint. Thus, the Court decides to join the objections to the merits of the case. (d) Conclusion 54. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 55. The first applicant argued that she was intellectually incapable of following the court proceedings for divesting her of her parental rights or understanding the true nature of those proceedings, let alone arguing her case and understanding the decision adopted. She further contended that final separation between her and her biological son through the adoption proceedings, in which she had not participated and her son’s rights had not been protected, violated both hers and her son’s right to respect for their family lives. 56. The Government submitted that the first applicant, as a person who was not divested of legal capacity, had been able to represent her interests in the proceedings before the national courts. The court conducting the proceedings for divesting the first applicant of her parental rights had carefully examined all the relevant facts, commissioned the relevant medical reports and reached adequate conclusions. The first applicant, who had successfully completed professional education, had been capable of engaging the services of a lawyer had she so wished. 57. As regards the adoption proceedings, they submitted that the first applicant had no longer had parental rights in respect of L. when those proceedings had been conducted. 2. The Court’s assessment (a) Whether there was an interference 58. The Court has already cited that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life (see paragraph 54 above). Domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 (see Johansen, cited above, § 52; Haase v. Germany, no. 11057/02, § 82, ECHR 2004 ‑ III (extracts); and X v. Croatia, no. 11223/04, § 45, 17 July 2008). 59. In the present case the measures taken by the State in respect of the first applicant’s relationship with her son L. originated in a decision of 10 May 2010 whereby the first applicant was divested of her parental rights in respect of her son and in his adoption. 60. There is no doubt that divesting a parent of his or her parental rights and putting a child up for adoption are both very restrictive measures, the latter of which results in the complete disruption of the relationship between a parent and a child. In this case those measures amounted to an interference with the applicants’ right to respect for their family life as guaranteed by paragraph 1 of Article 8 (see X v. Croatia, cited above, § 45). (b) Legality of the interference and legitimate aim 61. The Court accepts that the measures at issue had a basis in national law, namely, the Family Act and that the relevant Croatian legislation is designed to protect children. There is nothing to suggest that it was applied in the present case for any other purpose. The Court accepts therefore that the decisions at issue were aimed at protecting the best interests of the child, which is a legitimate aim within the meaning of paragraph 2 of Article 8 (see Keegan, cited above, § 44; Görgülü v. Germany, no. 74969/01, § 37, 26 February 2004; Glesmann v. Germany, no. 25706/03, § 101, 10 January 2008; and X v. Croatia, cited above, § 46). It remains to be determined whether the interference could be regarded as “necessary in a democratic society”. (c) Necessity in a democratic society 62. The central issue in this case is whether the procedures followed respected the applicants’ family life or constituted an interference with the exercise of the right to respect for family life which could not be justified as necessary in a democratic society. The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. The Court reiterates that it is an interference of a very serious order to split up a family. The Court recognises that, in reaching decisions in so sensitive an area, local authorities are faced with a task that is extremely difficult. To require them to follow on each occasion an inflexible procedure would only add to their problems. They must therefore be allowed a measure of discretion in this respect. On the other hand, predominant in any consideration of this aspect of the present case must be the fact that the decisions may well prove to be irreversible as in a case where a child has been taken away from his parents and freed for adoption. This is accordingly a domain in which there is an even greater call than usual for protection against arbitrary interferences (see B. v. the United Kingdom, 8 July 1987, Series A no. 121, § 63; X v. Croatia, cited above, § 47; and R. and H. v. the United Kingdom, no. 35348/06, § 76, 31 May 2011). 63. It is true that Article 8 contains no explicit procedural requirements, but this is not conclusive of the matter. The relevant considerations to be weighed by a local authority in reaching decisions on children in its care must perforce include the views and interests of the natural parents. The decision-making process must therefore, in the Court’s view, be such as to ensure that their views and interests are made known to, and duly considered by, the local authority and that they are able to exercise in due time any remedies available to them. In the Court’s view, what therefore has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as necessary within the meaning of Article 8 (see B. v. the United Kingdom, cited above, § 64; and X v. Croatia, cited above, § 48). 64. In the procedures applicable to the determination of issues relating to family life parents normally have a right to be heard and to be fully informed, although restrictions on these rights could, in certain circumstances, find justification under Article 8 § 2. The Court will examine these aspects in order to determine whether the proceedings have been conducted in a manner which is fair and affords due respect to the interests protected by Article 8 (see B. v. the United Kingdom, cited above, § 65; Tysiąc v. Poland, no. 5410/03, § 113, ECHR 2007 ‑ ...; and X v. Croatia, cited above, § 49). 65. In the present case the Court is not called upon to determine whether the adoption of the first applicant’s child was justified as such, but rather to determine whether the procedures followed were in compliance with the requirements of Article 8 of the Convention. The course of events concerning the first applicant’s child is set out in paragraphs 7 to 16 above. 66. The Court notes that immediately after his birth L., the biological son of the first applicant, was placed in foster care by a decision of the K. Welfare Centre. When the child was about a year and five months old the first applicant was divested of her parental rights in respect of L. Following the decision to that effect, L. was put up for adoption by the competent Social Welfare Centre. The first applicant, who by the time she was granted legal assistance could no longer use any remedies in respect of the decision divesting her of parental rights, made an attempt to have her parental rights restored – a possibility envisaged under the relevant domestic law (section 114 §§ 4 and 5 of the Family Act). However, her request was dismissed, since in the meantime L. had been put up for adoption and adopted by third parties, following adoption proceedings to which the first applicant was not a party, nor had she been informed of them. 67. The Court considers that the above events, which led to a gradual severance of the ties between a biological mother and her son, are to be seen in their continuity and assessed as a whole. 68. In this context, reference should also be made to the European Convention on the Adoption of Children, which is not binding on Croatia. This text allows that where the mother or father has been deprived of his or her parental rights in respect of the child, the law may provide that it is not necessary to obtain his or her consent. Likewise, in its White Paper on principles concerning the establishment and legal consequences of parentage of 15 January 2002, the Council of Europe’s Committee of Experts on Family Law accepts that the consent of the father or mother or both may be dispensed with by law if they do not hold parental responsibility. 69. The Court notes also that a vast majority of the member States have in their legal systems a possibility of divesting a parent of his or her parental rights. As regards the role of a parent divested of parental rights in any further proceedings concerning adoption of their child, the legal systems of the member States differ. While approximately half of the member states do recognise, at least to a certain extent, the right of a parent divested of his or her parental rights to participate in the adoption proceedings, the other half does not. 70. In view of the above, the Court, without having to decide about the compliance of legislation which does not allow a parent divested of parental rights to participate in the adoption proceedings with Article 8 of the Convention, will examine whether sufficient safeguards for the protection of the applicants’ private and family life were provided at any stage of the process of severing the applicants’ mutual ties. 71. As regards the proceedings for divesting parents of their parental rights, the Court notes that the Croatian Family Act contains detailed provision concerning the issue of divesting a parent of his or her parental rights. Thus, it is provided that a parent is to be divested of parental rights if he or she abuses or seriously infringes parental responsibility, obligations and rights. The grounds for such a measure are listed in section 114(2) of the Family Act. Procedures to be followed are also envisaged by that Act. The interests of a child are protected by appointment of a special guardian in these proceedings (section 114(6) of the Family Act). The courts conducting any proceedings under the Family Act are obliged to ensure that the interests of persons suffering from mental ailments or of persons who, for other reasons, are not able to protect their rights and interests, are adequately protected (section 267 of the Family Act). The Court is thus satisfied that the Croatian legislation provides for adequate safeguards as regards the interests of parents and their children in the proceedings for divesting the parents of parental rights. 72. The first applicant, despite the requirement under section 267 of the Family Act, in the proceedings divesting her of her parental rights was not represented. The national authorities established that she had a mild mental disability and that despite the need for ongoing psychiatric treatment she was not receiving any such treatment. She was enrolled in a special needs programme at school, had a speech impediment and a limited vocabulary. The Court considers that the national authorities should have ensured that, in view of the importance of the proceedings at issue for her right to respect for her family life, the first applicant’s interests were adequately protected in the proceedings at issue. That the first applicant could not properly understand the full legal effect of such proceedings and adequately argue her case and thus protect her rights and interests as the biological mother of L., is evidenced by her above-described personal circumstances. 73. However, despite the findings of the national authorities that the first applicant suffered from a mild mental disability, and the assessment of the court conducting the proceedings in question that she had a speech impediment and a limited vocabulary, that same court allowed her to remain unrepresented. The Court finds it difficult to accept that a person whose speech impediment and limited vocabulary were taken as grounds to fear that she would not be able to teach her child to speak properly, would be able to argue her case in proceedings before the national courts concerning her parental rights. 74. The first applicant sought legal aid which was granted, but only after the time-limit for lodging the appeal had already expired. In these circumstances the lawyer acting on behalf of the applicant choose the only path that was still available for the protection of the first applicant’s parental rights in respect of L. by attempting to restore them under section 114(5) of the Family Act. 75. Owing to the decision of 10 May 2010 divesting the first applicant of her parental rights in respect of L., the first applicant was subsequently excluded from the adoption of L. Therefore, in the proceedings preceding a decision of such paramount consequences, the applicants’ rights and interests should have been adequately protected by the first applicant being provided with proper assistance by a lawyer in the interests of affording her the requisite consideration of her views and protection of her interests as well as those of her biological son L. from the standpoint of preserving ties with his biological mother. 76. While those proceedings were pending, the first applicant learned on 7 December 2010 that L. had already been adopted. The proceedings for restoring the first applicant’s parental rights were therefore terminated on 28 January 2011. No further remedy would have served any purpose, since no proceedings concerning the first applicant’s parental rights could be continued owing to the fact that L. had already been adopted. 77. The Court further notes that the first applicant was not informed of the adoption proceedings and was not heard at any time in that connection. Since she was not a party to the adoption proceedings she had no right to use any remedy in the context of those proceedings. 78. While the Court can accept that her consent, owing to the fact that she had been divested of her parental rights, was not necessary in the adoption proceedings, it nevertheless considers that where, as in Croatia, a national system allows for parental rights to be restored, it is indispensable that a parent be given an opportunity to exercise that right before the child is put up for adoption, should such a possibility have any meaning. In the present case, by not informing the first applicant about the adoption proceedings the national authorities deprived her of the opportunity to seek restoration of her parental rights before the ties between the biological parent and child were finally severed by the child’s adoption. She was thus prevented from enjoying her right guaranteed by the Family Act. 79. The foregoing reveals, in the opinion of the Court, insufficient involvement of the first applicant in the decision-making process. 80. Against this background the Court considers that there were no adequate safeguards at any stage of the process of severing the ties between the applicants. It finds that there has been a violation of Article 8 of the Convention and dismisses the Government’s objections as to the exhaustion of domestic remedies and compliance with the six-month rule. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 81. The first applicant also complained, under Article 6 of the Convention, that she had not been a party to the adoption proceedings, that she had not given her consent to the adoption and that she had never been informed that such proceedings had been instituted. In this connection, the first applicant complained that her child’s guardian had been an employee of the Centre that had carried out the adoption proceedings, and claimed that she had influenced the initiation of the adoption proceedings instead of protecting the first applicant’s rights. 82. The Government contested these arguments. 83. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 84. The Court finds, however, that this complaint essentially overlaps with the issues which have been examined under Article 8 of the Convention. Having found a violation of this provision, the Court holds that no separate issue arises under Article 6 § 1 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 85. The first applicant complained that her child had been taken from her owing to her mental disability and physical invalidity and that therefore she had been discriminated against on that basis. She relied on Article 14 of the Convention, the relevant part of which reads: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. Admissibility 86. The Government argued that the first applicant had failed to exhaust domestic remedies because she had not lodged an action for the protection against discrimination under the Prevention of Discrimination Act. 87. The first applicant replied that she had not been required to use the remedy relied on by the Government because her parental rights could not be restored by means of that remedy. 88. The Court considers that the first applicant could in no manner address the situation complained of outside the proceedings conducted before the national authorities which concerned the relationship between her and her son, namely those divesting her of parental rights, the proceedings where she attempted to have her parental rights restored; and the adoption proceedings concerning L. Therefore, the first applicant was not required to institute any separate proceedings under the Prevention of Discrimination Act. 89. The Court considers further that this complaint is closely linked to the one concerning the first applicant’s right to respect for her private and family life under Article 8 of the Convention and must also therefore be declared admissible. B. Merits 90. The first applicant argued that her biological son had been taken from her by the national authorities on the basis of her disability and that that amounted to discrimination contrary to Article 14 of the Convention. 91. The Government maintained that L. had been separated from his biological mother, the first applicant, owing to her failure to secure adequate conditions for them to live together and not her disability and that therefore there had been no discrimination on any ground in the case at issue. 92. The Court reiterates that Article 14 has no independent existence, but plays an important role by complementing the other provisions of the Convention and its Protocols, since it protects individuals placed in similar situations from any discrimination in the enjoyment of the rights set forth in those other provisions. Where a substantive Article of the Convention or its Protocols has been relied on both on its own and in conjunction with Article 14 and a separate breach has been found of the substantive Article, the Court may not always consider it necessary to examine the case under Article 14 as well, though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case (see Dudgeon v. the United Kingdom, 22 October 1981, § 67, Series A no. 45; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 89, ECHR 1999-III; and Timishev v. Russia, nos. 55762/00 and 55974/00, § 53, ECHR 2005-XII). 93. As to the present case, the Court notes that the first applicant claimed that L. had been taken from her solely on the basis of her disability, while the Government claimed that he had been taken owing to lack of adequate conditions for their living together. 94. The Court considers that the main issue in the present case is the procedures followed by the national authorities in separating L. from the first applicant, his biological mother. In this regard the Court has already found a violation of Article 8 of the Convention after establishing shortcomings in the proceedings. In view of the Court’s analysis under that Article and the violation found, the Court considers that in the circumstances of the present case it is not necessary to examine any further complaint under Article 14 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 95. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 96. The first applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage. 97. The Government deemed the sum claimed excessive. 98. Having regard to all the circumstances of the present case, the Court accepts that the first applicant has suffered non-pecuniary damage which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the first applicant EUR 12,500 in respect of non-pecuniary damage, plus any tax that may be chargeable to her. B. Costs and expenses 99. The first applicant also claimed EUR 4,400 for the costs and expenses incurred before the Court. 100. The Government deemed the sum claimed excessive. 101. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000 for the proceedings before it, plus any tax that may be chargeable to the first applicant. C. Default interest 102. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. Observing in particular that, despite the legal requirement and the authorities’ findings that the first applicant suffered from a mild mental disability, she had not been represented by a lawyer in the proceedings divesting her of parental rights, and that, by not informing her about the adoption proceedings the national authorities had deprived her of the opportunity to seek restoration of her parental rights before the ties between her and her son had been finally severed by his adoption, the Court found that the first applicant had thus been prevented from enjoying her right guaranteed by domestic law and had not been sufficiently involved in the decision-making process. Kocherov and Sergeyeva v. Russia |
557 | Other applications of interim measures | II. RELEVANT DOMESTIC LAW AND PRACTICE 66. Section 65 of the Municipal Property Act empowers the mayor to order the repossession of real property belonging to the municipality and occupied by others if they have no legal right to occupy it. The mayor’s order is amenable to judicial appeal. Its enforcement is effected by the police. 67. The new paragraph 5 of section 65, added in May 2008, provides that persons occupying municipal real property without a legal basis cannot avail themselves of sections 72-74 of the Property Act, which bestow certain rights on holders of property belonging to another (under certain conditions, the right to reimbursement for improvements, and to withhold the property pending such reimbursement). 68. According to section 92 of the Property Act, read in conjunction with its other provisions, buildings belong to the owner of the land except where the right to construct a building has been lawfully conveyed by the owner to another person. Prior to 1996 it was not possible under Bulgarian law to acquire State or municipal property through adverse possession. Since 1996, state and municipal property, if it is of the category of “private state property”, may in principle be acquired by private persons through adverse possession, under a number of conditions. Through a transitory provision introduced in 2006, the running of the ten-year prescription period was suspended and the suspension is still in force. 69. The categorisation of persons in need of housing and the possibility of applying for municipal housing are governed by municipal regulations issued by each municipality in accordance with section 45a of the Municipal Property Act. These regulations, which differ from city to city, usually require candidates to have had their registered address in the town for more than five years, to have no real property of their own, and to have resources that do not exceed a certain maximum. Typically the application must be made in writing on a form and be accompanied by a number of documents. The decision whether to recognise the need is taken by a municipal commission and is amenable to judicial appeal. Among the candidates recognised as being in need of housing, homeless persons and those living in dangerous and unhealthy conditions have priority. 70. In accordance with sections 43 and 45 of the Municipal Property Act, an emergency stock of municipal flats may be used to house for up to two years persons whose dwellings are unsafe as being in danger of collapsing and persons with severe social or health problems. 71. Under sections 4 and 5 of the Protection against Discrimination Act, in force since 1 January 2004, racially offensive statements may be considered discriminatory. The victim may file a complaint with the Commission for Protection against Discrimination (see, for example, Decision no. 178 of 25 July 2008, where that commission established that the anti-Roma language used in a television broadcast of 24 February 2007 amounted to prohibited discrimination) or bring an action in court. Racially offensive statements may be criminally punishable under Articles 146 and 148 of the Criminal Code. The proceedings must be initiated by the victim. Separately, incitement to racial hatred is an offence punishable under Article 162 of the Criminal Code. 72. At the time when the removal order of 17 September 2005 was issued and reviewed by the domestic courts, Bulgarian administrative procedure law did not enshrine the principle of proportionality. Since July 2006, when the Code of Administrative Procedure entered into force, this principle is set out in Article 6 of the Code. III. RELEVANT INTERNATIONAL MATERIAL A. The Council of Europe 73. On 18 October 2006 the Council of Europe’s European Committee of Social Rights delivered a decision on the merits of a complaint against Bulgaria brought by the European Roma Rights centre, a non-governmental organisation. The Committee found, inter alia, that “the lack of legal security of tenure and the non-respect of the conditions accompanying eviction of Roma families from dwellings unlawfully occupied by them constitute[d] a violation of Article 16 of the Revised European Social Charter, taken together with Article E”. Article 16 concerns the right of families to “appropriate social, legal and economic protection” and Article E prohibits discrimination in the enjoyment of the rights set forth in the Charter. 74. To reach its conclusion, the Committee found that the Bulgarian legislation allowing the legalisation of illegal constructions set conditions “too stringent to be useful in redressing the particularly urgent situation of the housing of Roma families”, a situation recognised by the Bulgarian Government. The Committee also considered that the authorities had tolerated the unlawful Roma settlements for long periods and were accordingly obliged to carefully balance town planning measures against “the right to housing and its corollary of not making individual[s] homeless”. The Committee further found that by failing to take into consideration the specificity of the living conditions of Roma and strictly applying the rules on legalisation of buildings to them, Bulgaria had discriminated against Roma families, whose situation differed not least as a consequence of State non-intervention over a certain period. Similarly, there was discrimination on account of the authorities’ failure to take into account that Roma families ran a higher risk of eviction, and the authorities’ failure systematically to find alternative accommodation for the evicted families. 75. On 5 September 2007 the Committee of Ministers of the Council of Europe adopted a resolution in the case in which it noted, inter alia, the Bulgarian delegation’s statement before it that Bulgaria intended to amend the Territorial Planning Act to allow for easier legalising of existing buildings and construction of social housing. 76. In its 2005 Recommendation on improving the housing conditions of Roma the Committee of Ministers of the Council of Europe called upon member States, inter alia, to use proportionate response to illegal Roma settlements and seek, where possible, solutions acceptable for all parties. Also, eviction measures should include consultation with the community or individual concerned, reasonable notice, provision of information, a guarantee that the eviction will be carried out in a reasonable manner and alternative housing measures. As to daily life in existing settlements, the authorities should provide the same level of services as to other groups of the population and should, beyond that, promote better management including adequate management of neighbourhood conflicts. Housing policies should be tailored to the specific situations of the Roma communities. 77. In its 2008 Recommendation on policies for Roma and/or Travellers in Europe, the Committee of Ministers of the Council of Europe called upon Member States, inter alia, to ensure that decisions adopted by local authorities in the relevant area would not have a discriminatory effect on Roma. 78. In its Resolution 1740(2010) on the situation of Roma in Europe and relevant activities of the Council of Europe, the Parliamentary Assembly of the Council of Europe noted with concern that the process of Roma integration in Europe had not reached its objectives over the last twenty years, that Roma people were still regularly victims of intolerance, discrimination and rejection based on deep-seated prejudices and that the situation of Roma with regard to education, employment, housing, health care and political participation was far from satisfactory. The Assembly stated that adopting national strategies was insufficient in the absence of implementation measures at local and regional levels. It urged member States, inter alia, to promote a positive image of diversity, address stereotypes and prejudices, react strongly to racist discourse by public officials and tackle hate speech vis-à-vis Roma, be it in the media, politics or in civil society. As regards housing, the Assembly urged member States to take urgent measures to prevent forced evictions of Roma camps and settlements and – in cases of unavoidable evictions – ensure that such evictions were carried out only when all procedural protections required under international human rights law were in place, including the provision of adequate alternative housing and compensation for expropriation and losses of moveable possessions damaged in the process of eviction and, in the absence of such procedural protections in the existing domestic law, introduce legislation on evictions providing safeguards and remedies in accordance with international standards. 79. The Council of Europe’s Commissioner for Human Rights, in his 2009 Recommendation on the implementation of the right to housing stated, inter alia, that States should specify in legislation that positive measures are justified in order to promote full and effective equality provided that there was an objective and reasonable justification for such measures. B. The European Union 80. In October 2009 the EU Agency for Fundamental Rights issued a comparative report on the housing conditions of Roma and travellers in the EU. 81. According to the report, significant numbers of Roma in Europe live in unauthorised settlements. For example, in 2002 an estimated 70% of houses in urban Romani developments in Bulgaria were illegally built, in 1999 in Greece approximately 63,000 Roma lived in unregulated encampments and in 2008 in France most Roma groups lived in squalid shantytowns. 82. The report also mentioned cases of forced evictions of such encampments, in particular in Italy and Greece. C. The United Nations Organisation 83. The United Nations Committee on Economic, Social and Cultural Rights, in its General Comment no. 7 concerning forced evictions and the right to adequate housing under the International Covenant on Economic, Social and Cultural Rights, stated, inter alia, that evictions should not render persons homeless or more vulnerable to human rights violations. Also, evictions must meet a number of conditions, such as prior consultation with the persons to be evicted, the giving of adequate and reasonable notice as to when the eviction will take place and the availability of judicial remedies. If those evicted cannot provide for themselves, States should take all reasonable measures, utilising all available resources, to ensure the provision of adequate alternative housing. THE LAW I. ALLEGED VIOLATIONS OF THE CONVENTION IN THE EVENT OF ENFORCEMENT OF THE ORDER OF 17 SEPTEMBER 2005 84. The applicants alleged that if the order of 17 September 2005 was enforced and they were removed from their homes in Batalova Vodenitsa, that would amount to inhuman and degrading treatment contrary to Article 3 and violate their right to respect for their homes under Article 8. They further complained, relying on Article 13, that the authorities failed to consider proportionality issues and, relying on Article 14, that their removal would be discriminatory. They also complained that Article 1 of Protocol No. 1 would be violated. A. The parties’ submissions 1. The applicants 85. The applicants submitted that the houses where they lived and had their registered address were their homes regardless of the fact that they had not been built lawfully. Nothing had been done for decades to remove the applicants. For people as desperately poor and outcast as them the expectation that the inactivity would last was a basis to build lives on. The applicants had the right to respect for their homes and deprivation of one’s home was a most extreme form of interference with this right. 86. The applicants considered that the real aim pursued by the authorities was to free the terrain so that it could be leased or sold to a private entrepreneur for development and to “rid” the district of an unwanted Roma “ghetto”. Those were illegitimate aims. 87. In the applicants’ view, the Government’s attempt to use the neighbours’ protests to justify the eviction order was based on the fallacious assumption that the disorder and lack of sanitation complained of could not be remedied as long as the applicants’ community was present. This was to assume that a Roma community such as the applicants’ inherently produced disorder and pollution and could not be controlled by ordinary policing. The racist nature of this assumption which underlay the Government’s argument was evident. While the issues raised in complaints by ethnic Bulgarian neighbours were serious and a cause for concern, it was unacceptable to seek to solve them through collective expulsion, without regard to individual conduct. That would be nothing less than collective punishment on the basis of ethnic origin. 88. The applicants stated that the authorities had never considered the applicants’ personal circumstances, never consulted them before issuing a removal order and never considered proportionality even in theory. On the contrary, the authorities had openly and publicly asserted that the applicants had no rights at all and that it had been necessary to defend the rights of the non-Roma inhabitants who wished to have the “ghetto” removed. On two occasions, in 2006 and in 2008, the authorities had sought to evict the applicants, despite the September 2005 agreement under which they had undertaken to provide shelter to the families concerned. That agreement had always remained a dead letter. The history of the problem and the authorities’ actions since 2005 had shown beyond doubt that the majority public opinion and the authorities were in favour of eviction, and that talk about a consensus towards helping the Roma families concerned was without substance. 89. The applicants protested against the Government’s reliance on private complaints in terms that disclosed clear racist prejudice, presenting the problems in the neighbourhood as rooted in the racial opposition between Roma and Bulgarians and seeking the unconditional “return of the Roma to their native places”. Moreover, in the applicants’ view, the Government’s submissions (see paragraphs 92-99 below) were replete with statements disclosing racial prejudice, such as their admission that the authorities sought to avoid “concentration of large groups of Roma population”, as if Roma people were a pest of sorts which needed to be kept to a minimum. The Government assumed gratuitously that Roma people had fraudulently taken advantage of municipal housing, or would do so. They relied on racist initiatives such as a petition condemning “discrimination against the Bulgarians”. The Government’s appeal to the Court to bow to majority public opinion, which was in favour of evicting the applicants, not only conflicted with fundamental human rights principles but also showed that the Bulgarian authorities were sensitive to, if not supportive of, public prejudice against the Roma. 90. In the applicants’ view, the Government’s argument that demolition of illegal constructions happened everywhere in Bulgaria, regardless of ethnic origin, was not convincing. The examples given by the Government concerned business properties or holiday retreats owned by persons far wealthier than the applicants, not poor persons’ only homes. The relevant question was whether the authorities would order the collective eviction of a non-Roma community of two hundred persons, including children, without compensation and without alternative shelter, leaving them on the street. In the applicants’ view, it was inconceivable that this should happen. The manner in which the applicants were being treated was clearly linked to their ethnic origin. 91. Lastly, the applicants stated that the houses they had built and their belongings were “possessions” within the meaning of Article 1 of Protocol No. 1 despite the fact that they did not own the land. 2. The Government 92. The Government submitted that while for many years nothing had been done to remove the Roma families who started settling in Batalova Vodenitsa towards the end of the 1960s, it had always been clear that they were occupying State and municipal land unlawfully. They did not own the land and could not claim ownership on the basis of the fact that they had built makeshift houses without authorisation and in violation of building rules. The applicants could not claim, therefore, that they had an expectation to be allowed to remain in Batalova Vodenitsa. For long periods the authorities had not implemented the urbanisation plans for the area, other matters having had priority. This delay did not mean that the applicants’ illegal presence was tolerated. 93. The matter had become urgent when citizens living in the neighbourhood had started complaining about the Roma families’ behaviour. In support of the above, the Government submitted copies of handwritten complaints by non-Roma residents of Batalova Vodenitsa. Most of them were addressed personally to the Government’s agent in the proceedings before the Court and were apparently drafted for the purposes of the present proceedings on unspecified dates at the end of 2008 or the beginning of 2009. They were entitled “complaints by the Bulgarians living in Batalova Vodenitsa” and started with the following words: “We complain against the Roma ...”. The grievances made were that the Roma disposed of their waste in various places, thus littering the area, kept animals, dried their laundry by hanging it out for everyone to see, engaged in stealing and disorderly and aggressive behaviour, drank and used drugs. According to the text of the complaints, the signatories appealed to have the Roma removed and “returned to their native places”, although on visual examination of the copies submitted to the Court it appears that these last words may have been added by the author of the main text, either before or after the text had been signed by the signatories. 94. The Government further maintained that the relevant authorities had established that the applicants’ makeshift buildings posed a sanitary risk, might collapse and did not meet fire safety requirements. Having considered the matter, the Sofia municipality had decided to remove the Roma settlement and go ahead with the plans to construct blocks of flats in the area. Referring to the Court’s judgment in the case of Öneryıldız v. Turkey [GC], no. 48939/99, ECHR 2004 ‑ XII, the Government considered that had the Bulgarian authorities remained inactive in the face of the safety and sanitary risks that the applicants’ settlement represented, they would have risked liability under the Convention for failure to discharge their positive obligation to protect life and health. 95. The Government further stated that problems in the integration of the Roma population were not uncommon and Bulgaria was not alone in this respect. The authorities had demonstrated their determination to secure equal rights for all citizens, irrespective of their origin. The National Council for Cooperation on Ethnic and Demographic Issues, which included representatives of non-governmental organisations and was presided over by the Director of Ethnic and Demographic Matters at the Council of Ministers, had dealt with the problems in Batalova Vodenitsa. Detailed plans to help Roma families find housing and jobs existed and were in the process of implementation in many towns in the country, including districts of Sofia. A relevant example was the creation in June 2008 of a special working group at the Sofia municipality to deal with the demolition of social dormitory buildings in another area, known as Selishte na Stroitelia and Vietnamski Obshtezhitia. The buildings had been damaged by their lawful and unlawful occupants, predominantly of Roma origin, and the working group was seeking possibilities of finding housing for them in separate districts of Sofia, “in order to avoid large concentrations of Roma people”. 96. The Government thus stated that the relevant authorities were working to find a lasting solution to the housing problem of the Roma families concerned before reclaiming the municipal land they occupied in Batalova Vodenitsa. 97. The Government also submitted that the decision to remove the applicants’ houses was motivated solely by the need to enforce the law on illegal constructions and put an end to a situation which posed a sanitary risk and disfigured the city landscape. The authorities in any European capital would do as much. The applicants were not entitled to privileged treatment because of their ethnic origin or traditional lifestyle. They were not being treated in a discriminatory manner, measures against illegal occupation being undertaken regardless of the ethnicity of the persons concerned. The Government submitted information about orders for the demolition of illegal constructions in different parts of the country. Moreover, in their view, the one-sided presentation of the problems of the Roma population in Bulgaria by their self-appointed representatives seeking popularity stirred tension and provoked reactions from other ethnic groups. The Government were against such attempts to incite ethnic hatred. The reality was that there were two sides in the dispute: the lawful residents of the neighbourhood and the applicants, who occupied municipal land without title and “whose way of life is in contradiction with public norms and rules and in this sense generates tensions in society”. 98. The Government also appealed to the Court to take into account, in deciding the case, the reaction a finding of a violation of the Convention would prompt in Bulgarian society, precisely because Bulgarian society expected to see the law applied equally to persons from all ethnic groups. 99. Lastly, noting that for short periods four of the applicants had registered at addresses outside Batalova Vodenitsa, the Government submitted that such changes could also be observed in respect of other Roma inhabitants. Therefore, in the Government’s view, the supposition could be made that some of the persons concerned had “acquired flats”, sold them and then again registered in Batalova Vodenitsa with the aim of obtaining municipal flats. B. The Court’s assessment 100. Considering that the central issues in the present case concern the applicants’ rights under Articles 8 and 14 of the Convention, the Court will examine these complaints first. 1. Article 8 of the Convention 101. This provision reads, in so far as relevant: “1. Everyone has the right to respect for his private and family life, his home ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” (a) Whether the enforcement of the removal order would interfere with rights protected by Article 8 102. It is undisputed that the applicants and their families have lived for many years in the makeshift houses they or their ancestors built on State or municipal land in Batalova Vodenitsa. While for unspecified limited periods four of the applicants had their registered addresses outside that area, it is not disputed that they returned (see paragraphs 8, 12, 17, 43 and 99 above). The Government’s suggestion that some of the Roma living in the area may have registered there with the aim of obtaining municipal flats is not supported by any evidence. 103. In these circumstances, the applicants’ houses in Batalova Vodenitsa are their “homes” within the meaning of Article 8. This classification is a matter of fact independent of the question of the lawfulness of the occupation under domestic law (see McCann v. the United Kingdom, no. 19009/04, § 46, 13 May 2008). It follows that the applicants’ complaints concern their right under Article 8 to respect for their homes. 104. There is no doubt that the 2005 removal order, if enforced, would result in the applicants’ losing their homes and that, therefore, there would be an interference with their right to respect for their homes (see Ćosić v. Croatia, no. 28261/06, § 18, 15 January 2009). 105. Having regard to the fact that the case concerns the expulsion of the applicants as part of a community of several hundred persons and that this measure could have repercussions on the applicants’ lifestyle and social and family ties, it may be considered that the interference would affect not only their “homes”, but also their “private and family life” (see, similarly, Chapman v. the United Kingdom [GC], no. 27238/95, § 73, ECHR 2001 ‑ I). 106. The Court must examine, therefore, whether such interference, if it materialises, would be lawful and necessary in a democratic society for the achievement of one or several of the legitimate aims set out in paragraph 2 of Article 8. (b) Lawfulness 107. The Court is satisfied that the impugned removal order has a valid legal basis in domestic law (see paragraphs 29 and 66 above). 108. The question whether the applicable domestic legal framework and procedures meet the relevant Convention requirements appears to be in dispute. The Court will examine it below in the context of the question whether the interference, if it materialises, would be justified under Article 8 § 2. (c) Legitimate aim 109. The applicants alleged in essence that the removal order did not pursue a legitimate aim but was intended to benefit a private entrepreneur and to satisfy racist demands to free the area of an unwanted Roma settlement. The Government’s position was that the aim of the measure was to recover illegally occupied municipal land, realise plans for urban development and put an end to a situation involving safety and health risks which had given rise to complaints. 110. The Court observes that the order of 17 September 2005 did not contain a statement about its aim. It was based on a legal provision which concerns recovering a real property from persons who are not authorised to hold it (see paragraph 66 above). As it transpires from statements made by the mayor of the relevant district and from the Government’s submissions (see paragraphs 39, 42 and 92 above), putting an end to the unlawful occupation of the land by the applicants was, apparently, the main aim pursued by the impugned order. 111. As the Court has previously stated, it is legitimate for the authorities to seek to regain possession of land from persons who did not have a right to occupy it (see McCann v. the United Kingdom, cited above, § 48 and Connors v. the United Kingdom, no. 66746/01, § 69, 27 May 2004). 112. Furthermore, it is undisputed that the Batalova Vodenitsa settlement comprises buildings which do not meet the relevant construction requirements (see paragraphs 10-14 above). While it is true that the Government have not submitted evidence of concrete and imminent construction projects, there was a general intention on the part of the authorities to use the land occupied by the applicants for urban development. In particular, such plans for Batalova Vodenitsa had been made and amended several times in the past, including well before 2005 (see paragraphs 9, 15 and 26 above). 113. Unlike the applicants, the Court fails to see an indication of improper motives in the authorities’ plans to transfer the land to a private investor for development purposes (see paragraph 27 above). Improvement of the urban environment by removing unsightly and substandard buildings and replacing them with modern dwellings meeting the relevant architectural and technical requirements is a legitimate aim in the interests of economic well-being and the protection of the health and the rights of others and may in principle justify interference with rights under Article 8 of the Convention (see a similar approach in Buckley v. the United Kingdom, 25 September 1996, §§ 62 and 63, Reports of Judgments and Decisions 1996 ‑ IV, and Chapman, cited above, §§ 80-116). 114. The Court observes, in addition, that it is undisputed that the applicants’ homes lack sewage and sanitary facilities. The Government also alleged that there was a risk of some makeshift houses collapsing. In the Court’s view, while there is no clear evidence of the authorities having considered these issues from the point of view of the needs of those most concerned – the applicants –, it must be acknowledged that there is a legitimate public interest in taking measures to cope with hazards such as those that may stem from an unlawful settlement of makeshift houses lacking sewage and sanitary facilities. Indeed, this was admitted by representatives of the Batalova Vodenitsa residents in the text of the agreement which they signed with the municipal authorities on 28 September 2005 (see paragraphs 11 and 34 above). 115. Lastly, the Court finds unconvincing the applicants’ argument that the authorities envisaged building plans as a mere pretext and that the real aim of the removal order was nothing more than a racist attempt to rid the area of the presence of all Roma. As noted above, there is sufficient evidence of genuine plans for urban development in the area and health and safety hazards and it is legitimate for the authorities, in the interests of economic well-being and the protection of health and of the rights of others, to seek to address these problems. 116. It follows that the impugned measure, if enforced, would have a legitimate aim under Article 8 § 2 of the Convention. The salient issue in the present case concerns “necessity in a democratic society” within the meaning of that provision and the Court’s case-law. (d) Necessity in a democratic society i. General principles 117. An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued. While it is for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the reasons cited for the interference are relevant and sufficient remains subject to review by the Court for conformity with the requirements of the Convention (see, among other authorities, Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, 27 September 1999, §§ 88, ECHR 1999-VI). 118. In this regard, a margin of appreciation must be left to the national authorities, who by reason of their direct and continuous contact with the vital forces of their countries are in principle better placed than an international court to evaluate local needs and conditions. This margin will vary according to the nature of the Convention right in issue, its importance for the individual and the nature of the activities restricted, as well as the nature of the aim pursued by the restrictions. The Court has noted the following relevant considerations in this respect: (i) In spheres involving the application of social or economic policies, including as regards housing, there is authority that the margin of appreciation is wide, as in the urban or rural planning context where the Court has found that “[i]n so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation” (see, for example, Buckley, cited above, p. 1292, § 75 in fine, and Ćosić, cited above, § 20); (ii) On the other hand, the margin of appreciation left to the authorities will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights. Since Article 8 concerns rights of central importance to the individual’s identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community, where general social and economic policy considerations have arisen in the context of Article 8 itself, the scope of the margin of appreciation depends on the context of the case, with particular significance attaching to the extent of the intrusion into the personal sphere of the applicant (see, among many others, Connors, cited above, § 82); (iii) The procedural safeguards available to the individual will be especially material in determining whether the respondent State has remained within its margin of appreciation. In particular, the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 (see Buckley, cited above, pp. 1292-93, § 76, and Chapman, cited above, § 92). The “necessary in a democratic society” requirement under Article 8 § 2 raises a question of procedure as well of substance (see McCann, cited above, § 26); (iv) Since the loss of one’s home is a most extreme form of interference with the right under Article 8 to respect for one’s home, any person at risk of an interference of this magnitude should in principle be able to have the proportionality and reasonableness of the measure determined by an independent tribunal in the light of the relevant principles under Article 8, notwithstanding that, under domestic law, he has no right of occupation (see Kay and Others v. the United Kingdom, no. 37341/06, § 67-8 and 74, 21 September 2010 and Orlić v. Croatia, no. 48833/07, § 65, 21 June 2011). This means, among other things, that where relevant arguments concerning the proportionality of the interference have been raised by the applicant in domestic judicial proceedings, the domestic courts should examine them in detail and provide adequate reasons ( ibid ., §§ 67-69); (v) Where the national authorities, in their decisions ordering and upholding the applicant’s eviction, have not given any explanation or put forward any arguments demonstrating that the applicant’s eviction was necessary, the Court may draw the inference that the State’s legitimate interest in being able to control its property should come second to the applicant’s right to respect for his home ( ibid ). ii. Application of those principles to the facts of the case α) The Court’s approach in the present case 119. Seeing that the applicants have been ordered to leave under a final binding removal order but its enforcement has been postponed and a significant period has elapsed since then (see paragraphs 35, 52 and 56 above), the Court must examine separately (i) whether the removal order, as it was issued and reviewed by the courts in 2005-2006, was justified under Article 8 § 2 and (ii) whether other events or measures taken by the authorities since then may affect the Court’s conclusion on what is necessary in a democratic society. β) Whether the order of 17 September 2005 was justified under Article 8 § 2 120. There is no doubt that the authorities are in principle entitled to remove the applicants, who occupy municipal land unlawfully (see paragraph 111 above). 121. The Court notes, however, that for several decades the national authorities did not move to dislodge the applicants’ families or ancestors and, therefore, de facto tolerated the unlawful Roma settlement in Batalova Vodenitsa (see paragraphs 8, 17 and 92 above). In its view, this fact is highly pertinent and should have been taken into consideration (see, for example, Orlić v. Croatia, § 70, cited above). While the unlawful occupants cannot claim any legitimate expectation to remain, the authorities’ inactivity has resulted in the applicants’ developing strong links with Batalova Vodenitsa and building a community life there. The principle of proportionality requires that such situations, where a whole community and a long period are concerned, be treated as being entirely different from routine cases of removal of an individual from unlawfully occupied property. 122. The impugned removal order was based on section 65 of the Municipal Property Act, under which persons unlawfully living on municipal land can be removed regardless of any special circumstances, such as decades-old community life, or possible consequences, such as homelessness. Under the relevant domestic law, as in force at the time, the municipal authorities were not required to have regard to the various interests involved or consider proportionality (see paragraphs 38, 66 and 72 above). Relying on this legal framework, the municipal authorities did not give reasons other than to state that the applicants occupied land unlawfully and, in the judicial review proceedings, the domestic courts expressly refused to hear arguments about proportionality and the lengthy period during which the applicants and their families had lived undisturbed in Batalova Vodenitsa (see paragraphs 29-31 and 36-38 above). 123. In cases such as the present one, this approach is in itself problematic, amounting to a failure to comply with the principle of proportionality. Under Article 8 of the Convention, the removal order against the applicants can only be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued (see the case ‑ law cited in paragraphs 121 and 122 above). 124. The Court further observes that it is undisputed that the houses of most applicants do not meet basic sanitary and building requirements, which entails safety and health concerns. It considers, however, that in the absence of proof that alternative methods of dealing with these risks have been studied seriously by the relevant authorities, the Government’s assertion that the applicants’ removal is the appropriate solution is weakened and cannot in itself serve to justify the removal order. 125. Indeed, the Bulgarian authorities have recognised, as can be seen from their long-term programmes and declarations on Roma inclusion and housing problems, as well as from projects realised in other parts of Sofia or elsewhere in the country, that a wide range of different options are to be considered in respect of unlawful Roma settlements. Among those are legalising buildings where possible, constructing public sewage and water-supply facilities and providing assistance to find alternative housing where eviction is necessary (see paragraphs 60-63, 65, 69, 70, 73-83 and 95 above). While some of these options are directly relevant to achieving appropriate urban development and removing safety and health hazards, the Government have not shown that they were considered in the case at hand. 126. In addition, it is noteworthy that before issuing the impugned order the authorities did not consider the risk of the applicants’ becoming homeless if removed. They attempted to enforce the order in 2005 and 2006 regardless of the consequences and, while they signed an agreement containing an undertaking to secure alternative shelter, they later disregarded it and declared that the risk of the applicants’ becoming homeless was “irrelevant” (see paragraphs 27-42 above). The Court considers, however, that in the specific circumstances of the present case, in view, in particular, of the long history of undisturbed presence of the applicants’ families and the community they had formed in Batalova Vodenitsa, the principle of proportionality required that due consideration be given to the consequences of their removal and the risk of their becoming homeless. 127. The Court also notes that there is no indication that the construction plans invoked by the Government ever moved close to the stage of implementation. The Government have not shown, therefore, that the land was urgently needed for the public need they mentioned. Proportionality in cases such as the present one is inextricably linked to the use for which the authorities seek to recover the land. In principle, in cases where the domestic authorities have considered these matters, the Court would normally accept their conclusion unless manifestly unreasonable. As there is no evidence of such an attempt, the Court cannot but attach less weight to the alleged importance of the development plans for the land currently occupied by the applicants. 128. Furthermore, it transpires from statements made by municipal officials and the Government’s submissions before the Court that at the local level, in the present case, the authorities have refused to consider approaches specially tailored to the needs of the Roma community on the ground that such an attitude would amount to discrimination against the majority population. In this connection, in the Court’s view, there would appear to be a contradiction between, on the one hand, adopting national and regional programmes on Roma inclusion, based on the understanding that the applicants are part of an underprivileged community whose problems are specific and must be addressed accordingly, and, on the other hand, maintaining, in submissions to the Court, as the respondent Government did in this case, that so doing would amount to “privileged” treatment and would discriminate against the majority population (see paragraphs 41, 60-63 and 95-98 above). 129. The latter argument fails to recognise the applicants’ situation as an outcast community and one of the socially disadvantaged groups (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 182, ECHR 2007 ‑ IV, with further references). Such social groups, regardless of the ethnic origin of their members, may need assistance in order to be able effectively to enjoy the same rights as the majority population. As the Court has stated in the context of Article 14 of the Convention, that provision not only does not prohibit a member State from treating groups differently in order to correct “factual inequalities” between them but, moreover, in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of Article 14 (see D.H. and Others v. the Czech Republic, cited above, § 175; “Case relating to certain aspects of the laws on the use of languages in education in Belgium” v. Belgium (Merits), judgment of 23 July 1968, Series A no. 6, § 10; Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV; and Stec and Others v. the United Kingdom [GC], no. 65731/01, § 51, ECHR 2006-...). In the context of Article 8, in cases such as the present one, the applicants’ specificity as a social group and their needs must be one of the relevant factors in the proportionality assessment that the national authorities are under a duty to undertake. 130. The above does not mean that the authorities have an obligation under the Convention to provide housing to the applicants. Article 8 does not in terms give a right to be provided with a home (see, Chapman, cited above, § 99) and, accordingly, any positive obligation to house the homeless must be limited (see O’Rourke v. the United Kingdom (dec.), no. 39022/97, ECHR 26 June 2001). However, an obligation to secure shelter to particularly vulnerable individuals may flow from Article 8 of the Convention in exceptional cases ( ibid .; see, also, mutatis mutandis, Budina v. Russia (dec.), no. 45603/05, 18 June 2009). 131. It is also true that the applicants themselves have not been active in seeking a solution (see paragraphs 13, 43 and 51 above). It appears that they are reluctant to seek social housing at least partly because they do not want to be dispersed, find it difficult to cover the related expenses and, in general, resent the radical change of their living environment that moving into blocks of flats would entail. However, Article 8 does not impose on Contracting States an obligation to tolerate unlawful land occupation indefinitely (see Chapman, cited above, § 96, which concerns a very specific and relatively narrow positive obligation to facilitate itinerant way of life which is determinative of an identity). 132. The relevant point in this case is, nonetheless, that the disadvantaged position of the social group to which the applicants belong could and should have been taken into consideration, for example, in assisting them to obtain officially the status of persons in need of housing which would make them eligible for the available social dwellings on the same footing as others. This has been recognised by the Bulgarian authorities in their national and regional programmes but that did not result in practical steps being taken in the present case (see paragraphs 55-59 and 61-65 above). 133. In general, the underprivileged status of the applicants’ group must be a weighty factor in considering approaches to dealing with their unlawful settlement and, if their removal is necessary, in deciding on its timing, modalities and, if possible, arrangements for alternative shelter. This has not been done in the present case. 134. In sum, the Court finds that the respondent Government failed to establish that the removal order of 17 September 2005 was necessary in a democratic society for the achievement of the legitimate aims pursued. γ) Whether events since 2005-2006 would render the enforcement justified 135. It is true that in the years since September 2005 the fate of the Batalova Vodenitsa area has been the subject of negotiations, discussions and examination by consultative bodies such as the National Council for Cooperation on Ethnic and Demographic Issues. The Council apparently recommended consideration of alternative modes of action and a more balanced solution. The Government and the local authorities in Sofia declared on several occasions that they planned to find a solution to the applicants’ housing problem by providing them with alternative shelter (see paragraphs 33, 44, 55, 57 and 96 above). It is also true that several programmes on Roma housing problems have been adopted at the national and regional level in Bulgaria (see paragraphs 60-63 above) and that, apparently, some projects in other locations have been undertaken. All this may suggest that the authorities are seeking a proportionate approach, combining the enforcement of building planning rules with positive measures to assist the individuals concerned. 136. The Court cannot but observe, however, that these discussions and programmes were not part of a formal procedure before a body in which power to modify the impugned order for the applicants’ removal was vested and, in any event, they did not result in any legal act concerning the applicants concretely. The order of 17 September 2005 has remained in force and is still enforceable. Although the mayor of the relevant district suspended the applicants’ removal temporarily, it is significant that, as it appears from the material submitted to the Court, there has been no decision to re-examine the order of 17 September 2005 or tie its enforcement to the implementation of appropriate measures to secure respect for the applicants’ Article 8 rights (see paragraphs 41, 45-48 and 56 above). 137. In these circumstances, it cannot be considered that the above-mentioned post hoc discussions have secured the fair decision-making process that is indispensable for the discharge of the respondent State’s duties under Article 8 of the Convention or that “necessity in a democratic society” was otherwise demonstrated. 138. The Government have also argued that repeated complaints by neighbours, including in 2008 and 2009, would justify the enforcement of the removal order (see paragraphs 93 and 97 above). 139. It appears undisputed between the parties that, before 2005 and since then, there have been repeated complaints by residents of blocks of flats adjacent to the land at issue in which two main issues were raised: (i) sanitary risks mainly related to the lack of sewage and the fact that the applicants’ homes do not meet building requirements and (ii) offences and disturbances of public order allegedly committed by the residents of the unlawful settlement in Batalova Vodenitsa (see paragraphs 20-25, 42 in fine, 56, 93 and 97 above). 140. On the first issue, the Court has already found that health risks of that kind could in principle justify the impugned measures, had it been demonstrated – which is not so in the present case – that the removal order respected the principle of proportionality (see paragraphs 120-134 above). 141. As to the second issue, the Court accepts that the authorities were under a duty to act in response to the neighbours’ allegations about offences and disturbances in the area. It was their responsibility to apply the law and, if necessary, investigate the alleged offences and sanction the individuals concerned. The respondent Government have not provided any evidence of such action having been taken. 142. Some of the neighbours’ complaints, however, also contained illegitimate demands, such as to have the applicants “returned to their native places” (see paragraph 93 above). It is also clear that the situation that obtained was characterised by tension that risked fuelling animosity between two social and ethnic groups. It was therefore important to act in such a manner that the authorities were not seen as being influenced by hostile attitudes of one group against another. However, the Court is not convinced that these subsequently raised illegitimate demands played any role in the initial decision-making process for the issuing of the removal order in question. 143. In sum, the events since the removal order was issued and reviewed by the domestic courts do not provide a basis for a conclusion that its future enforcement would be justified. (e) Conclusion as regards Article 8 144. The above considerations are sufficient for the Court to reach the conclusion that there would be a violation of Article 8 in the event of enforcement of the deficient order of 17 September 2005 as it was based on legislation which did not require the examination of proportionality and was issued and reviewed under a decision-making procedure which not only did not offer safeguards against disproportionate interference but also involved a failure to consider the question of “necessity in a democratic society”. 2. Article 14 in conjunction with Article 8 145. The parties’ submissions are summarised in paragraphs 85-99 above. In essence, the applicants complained that the removal order was based on racist attitudes against them and the Government maintained that the removal order was justified and that the applicants could not claim a privileged treatment. 146. It is undisputed that Article 14 applies in the present case, seeing that discrimination is alleged in relation to the applicants’ right to respect for their homes and private life and, therefore, in respect of issues falling within the ambit of Article 8 (see, for example, E.B. v. France [GC], no. 43546/02, § 47, 22 January 2008, and Larkos v. Cyprus [GC], no. 29515/95, § 28, ECHR 1999 ‑ I). 147. The Court observes, however, that the issue before it is whether a hypothetical future enforcement of the removal order would be discriminatory. The Court cannot speculate about the timing and modalities of any such enforcement and assess the Article 14 issue on the basis of a hypothetical scenario. For example, it cannot assume, as urged by the applicants, that the authorities would again seek to remove them at very short notice. 148. The Court also notes that the main argument of the applicants about discrimination concerns the allegation that the authorities were unduly influenced by hostile attitudes and complaints from neighbours. The Court has dealt with relevant aspects of these issues in the context of proportionality under Article 8 (see paragraphs 128-143 above). 149. In these circumstances, the Court finds that no separate issue arises under Article 14 with regard to any future enforcement of the removal order of 17 September 2005. 3. Articles 3 and 13 of the Convention and Article 1 of Protocol No. 1 150. The applicants considered that in the event of enforcement of the order of 17 September 2005 there would also be violations of Articles 3 and 13 of the Convention and Article 1 of Protocol No. 1. The Government disputed this. 151. The Court, noting that the enforcement of the order of 17 September 2005 has been suspended, cannot speculate about the modalities of any future enforcement and cannot assume, as urged by the applicants, that the authorities would again seek to remove them at very short notice or would not offer alternative shelter where appropriate. Nor can it assume that the authorities would damage their belongings or would not allow time to move them. The municipal authorities had stated their intention to issue a separate demolition order in the event of enforcement of the impugned removal order (see paragraph 31 above). 152. In any event, the Court has already found that the enforcement of the removal order of 17 September 2005 would violate the applicants’ rights under Article 8 on the grounds that it was issued and reviewed in a manner which did not secure the minimum procedural safeguards. In these circumstances, there is no reason to doubt that the respondent Government would comply with the present judgment and would not act in violation of the Convention by removing the applicants on the basis of a deficient order. 153. For the reasons set out above, the Court finds it unnecessary to examine the above complaints separately. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 154. The applicants alleged that, apart from any violation of the Convention that would occur in the event of the future enforcement of the removal order, the authorities had already violated their rights under Articles 3, 8, 13 and 14. 155. In particular, in their view, the unjust and arbitrary manner in which the authorities had acted – seeking summarily to remove them after decades of tolerating their presence, disregarding signed agreements and legitimate concerns, moving on the basis of racially biased complaints by non-Roma inhabitants and demonstrating clear indifference to the applicants’ becoming homeless, amounted to treatment of such gravity that it could be characterised as degrading. That treatment was in any event discriminatory. 156. The Government considered that all the actions complained of were lawful and justified under the Convention. 157. The Court accepts that the applicants’ situation in September 2005, when they and their families were given only several days to leave their decades-old homes, was unenviable. The Court has already found that Article 8 would be violated in the event of the removal order of 17 September 2005 being enforced (see paragraph 144 above). 158. It is further relevant that the authorities accepted to suspend the enforcement of the removal order. The Court finds unconvincing the applicants’ argument that, despite the above, they were subjected to treatment beyond the threshold of severity required under Article 3 or suffered a separate violation of Article 8 as a result of the very fact that the authorities announced their decision to remove them and made preparatory moves. It should not be overlooked that the applicants knew at all relevant times that they occupied municipal land unlawfully and could not expect to remain there indefinitely. 159. It is true that serious cases of discriminatory statements by public officials or failure by the authorities to react to racist statements may constitute violations of Article 14 or even Article 3 (see Moldovan v. Romania (no. 2), nos. 41138/98 and 64320/01, §§ 111-14, ECHR 2005 ‑ VII (extracts), with further references). The Court cannot exclude furthermore that a failure to react to discriminatory attitudes and statements could amount to a violation of Article 14 in conjunction with other Convention provisions, including Article 8. 160. The Court notes, however, that that the applicants’ main complaint concerns a potential violation of the their rights under Article 8. As regards the attitudes and statements complained of, Bulgaria has put in place legal protection mechanisms, such as the possibility to file complaints to the commission set up under the Protection against Discrimination Act or directly bring judicial proceedings. This mechanism apparently functions in practice as seen from relevant examples (see paragraph 71 above) and the applicants have not claimed that they could not resort to it. It cannot be said, therefore, that the national legal system left the applicants defenceless. They could bring legal proceedings with a view to having incidents of hate speech examined and obtain an authoritative condemnation of any racist statements, and compensation. 161. In sum, the Court, having examined in detail the complaints concerning the future enforcement of the removal order of 17 September 2005 (see paragraphs 100-153 above), finds that the applicants have not established convincingly that the additional complaints formulated by them give rise to a separate issue under the Convention. III. APPLICATION OF ARTICLE 46 OF THE CONVENTION 162. The Court finds it appropriate to consider the present case under Article 46 of the Convention, which reads as follows: “1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.” 163. The Court reiterates that, in the context of the execution of judgments in accordance with Article 46 of the Convention, a judgment in which the Court finds a violation of the Convention or its Protocols imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order. Furthermore, it follows from the Convention, and from Article 1 in particular, that in ratifying the Convention the Contracting States undertake to ensure that their domestic legislation is compatible with it (see Maestri v. Italy [GC], no. 39748/98, § 47, ECHR 2004-I). 164. Contracting States’ duty in international law to comply with the requirements of the Convention may require action to be taken by any State authority, including the legislature (see Viaşu v. Romania, no. 75951/01, 9 December 2008). 165. In view of the relevant strict provisions in the Municipal Property Act, noted in the present judgment (see paragraphs 122 and 123 above), and the fact that the order of 17 September 2005 is still enforceable in Bulgarian law, it appears necessary to assist the respondent Government in the execution of their duty under Article 46 of the Convention. 166. In particular, in view of its findings in the present case, the Court expresses the view that the general measures in execution of this judgment should include such amendments to the relevant domestic law and practice so as to ensure that orders to recover public land or buildings, where they may affect Convention-protected rights and freedoms, should, even in cases of unlawful occupation, identify clearly the aims pursued, the individuals affected and the measures to secure proportionality. 167. In so far as individual measures are concerned, the Court is of the view that the execution of the present judgment requires either the repeal of the order of 17 September 2005 or its suspension pending measures to ensure that the authorities have complied with the Convention requirements, as clarified in the present judgment. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 168. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 169. The applicants claimed 10,000 euros (EUR) each for non-pecuniary damage. They stated that they had suffered from the fact that they had to live for years under the threat of homelessness and from the alleged racial bias in the authorities’ actions. The applicants requested that any award of damages should be made payable to the bank account of the Bulgarian Helsinki Committee. 170. The Government, objecting to the allegations about discrimination and racist attitudes on the part of the authorities, considered that the finding of a violation of the Convention would constitute sufficient just satisfaction. 171. In the present case, the Court found that there would be a violation of Article 8 of the Convention if the order of 17 September 2005 were enforced. In most cases concerning violations that have not already occurred, the Court considered that the finding of a violation was sufficient just satisfaction (see, mutatis mutandis, Raza v. Bulgaria, no. 31465/08, § 88, 11 February 2010, with further references). It sees no reason to reach a different conclusion in this case. Furthermore, it is relevant that, as noted above, the applicants themselves have not been very active in seeking a solution that would allow them to put an end to their unlawful occupation of land in Batalova Vodenitsa (see paragraphs 13, 43 and 51 above). B. Costs and expenses 172. The applicants claimed EUR 5,786.82 for costs and expenses relating to the domestic proceedings and the proceedings before the Court. This sum included legal fees for eighty-one hours of legal work at the hourly rate of EUR 70 and court fees in the amount of EUR 116.82. The applicants submitted copies of a legal fees agreement, a time sheet and receipts. They requested that any sums awarded under this head should be paid directly into the bank account of the Bulgarian Helsinki Committee, the organisation which provided them with legal assistance. 173. The Government considered that the claim was excessive as the hourly rate claimed allegedly exceeded several times the usual rates charged by lawyers in Bulgaria. 174. Having regard to the relevant criteria and considering that the number of hours of legal work claimed appears to be excessive, the Court awards EUR 4,000 in respect of costs and expenses. C. Default interest 175. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | In this case, in June 2008, the Court indicated to the Bulgarian Government under its rule on interim measures, that the applicants should not be evicted until such time as the authorities assured the Court of the measures they had taken to secure housing for the children, elderly, disabled or otherwise vulnerable people. The district mayor informed the Court that she had suspended the removal order pending the resolution of the housing problems of the settlement’s residents. The Court then lifted its interim measure. |
951 | Refusal to allow internally displaced persons to vote | RELEVANT LEGAL FRAMEWORK AND PRACTICE Domestic law and practice Constitution of Ukraine, 1996 Constitution of Ukraine, 1996 Constitution of Ukraine, 1996 13. Under Article 70 the right to vote is conferred on all citizens of Ukraine who have attained the age of eighteen, with the exception of those who have been declared legally incompetent by a court. Local Elections Act, 2015 (in force until 1 January 2020) 14. Section 3 of the Act provided that whether a citizen “belongs” to a particular territorial community and whether that citizen had his or her residence within that community was determined by whether or not he or she had his or her registered place of residence there. Under the same Article, the identity of a voter and his or her citizenship and registered place of residence were confirmed by information in his or her national passport. 15. Paragraph 3 of Section 30 of the Act provided insofar as relevant as follows: “3. A voter who is outside the settlement in which he or she resides on the day of the election shall not participate in the local elections... The provisions of paragraph 3 of Section 7 of the On the State Register of Voters Act do not apply in local elections.” State Register of Voters Act, 2007 16. Under paragraph 3 of section 7 the place of voting of a voter can be temporarily changed without a change being made to his or her electoral address. 17. Under paragraph 2 of section 8 of the Act the electoral address of a voter is determined by his registered place of residence and the address of the voter’s home, in accordance with the Freedom of Movement and Free Choice of Residence in Ukraine Act. 18. With adoption of the Electoral Code in 2019 (see paragraph 28 below) section 7 of the Act was supplemented by a new paragraph 4, similar to that which was previously contained in the Local Elections Act (see paragraph 15 above) which stipulates that a temporary change of the place of voting does not apply to local elections. 19. Furthermore, section 8 of the Act was supplemented by a new paragraph 3 which foresees: “At the request of a voter, the body which maintains the Register may determine a different electoral address than the one determined in accordance with paragraph 2 of this section.” Freedom of Movement and Free Choice of Residence in Ukraine Act, 2004 20. Under section 6 of the Act, any person who moves to a new place of residence must register it as such by submitting documents to the relevant registration authority. No one may have more than one official residence; if a person has several de facto places of residence, he or she must choose which of those he or she wishes to register as his or her official address. Local Self-Government Act, 1997 21. Under section 1 of the Act a “ territorial community” is defined as (i) inhabitants united by permanent residence within the boundaries of a village, settlement or city (which must be independent administrative-territorial units), or (ii) a voluntary association of inhabitants of several villages that share a single administrative centre. Ensuring the Rights and Freedoms of Internally Displaced Persons Act, 2014 (“the IDP Act”) 22. Section 1 of the Act defines an “internally displaced person” as a person with permanent residence in Ukraine who has been expelled or forced to leave his or her place of residence as a result of – or in order to avoid the negative consequences of – armed conflict, temporary occupation, widespread violence, human rights violations or emergencies of a natural or man-made nature. 23. Under section 5 of the Act, an IDP certificate certifies the place of residence of its holder for the period of existence of the grounds specified in section 1 of the Act. 24. Section 8 of the Act guarantees to IDPs the right to vote. In its original wording of 2014, it read as follows: “An internally displaced person shall exercise his or her right to vote in elections of the President of Ukraine, people’s deputies of Ukraine, local elections and referenda by changing the place of voting without changing the electoral address in accordance with paragraph 3 of section 7 of the State Register of Voters Act.” 25. With adoption of the Electoral Code in 2019 (see paragraph 28 below) the reference to paragraph 3 of section 7 of the State Register of Voters Act was replaced with the general reference “in accordance with the procedure established by law.” Ensuring the Rights and Freedoms of Citizens and the Legal Regime in respect of the Temporarily Occupied Territories within Ukraine Act, 2014 26. Paragraph 5 of section 8 of this Act stipulates that no local or regional elections or referenda should be conducted within the temporarily occupied territories. Decision of the Supreme Court of 25 July 2018 in case no. K/9901/17330/18 27. The claimant in this case challenged the refusal by the Lutsk department of the State Register of Voters to include her name in the voters’ list for local elections to be held at the place of her actual residence as an IDP (where she had resided for more than a year). The Administrative Court of Cassation (which forms part of the Supreme Court) in its decision upheld the finding of the lower-instance courts that the fact that a person “belonged” to a particular territorial community was confirmed by that person’s registered place of residence, as indicated in his or her passport; the court also upheld the lower-instance courts’ finding that the place of residence noted in a person’s passport was of key legal significance in respect of the resolution of election-related disputes concerning a person’s inclusion in a voters’ list. Electoral Code of Ukraine, 2019 28. On 19 December 2019 the Ukrainian Parliament adopted the Electoral Code (came into force on 1 January 2020), which introduced amendments to some of the legal instruments cited above (see paragraphs 17, 18 and 25 above) and allowed IDPs to participate in local elections without changing their registered place of residence in their passports. International documentsRecommendation 419 (2018) by the Congress of Local and Regional Authorities of the Council of Europe, entitled “Voting rights at the local level as an element of the successful long-term integration of migrants and IDPs in Europe’s municipalities and regions” Recommendation 419 (2018) by the Congress of Local and Regional Authorities of the Council of Europe, entitled “Voting rights at the local level as an element of the successful long-term integration of migrants and IDPs in Europe’s municipalities and regions” Recommendation 419 (2018) by the Congress of Local and Regional Authorities of the Council of Europe, entitled “Voting rights at the local level as an element of the successful long-term integration of migrants and IDPs in Europe’s municipalities and regions” 29. The Recommendation reads, in so far as relevant, as follows: “1. In the context of mass migration that currently occurs in the area of the Council of Europe for political, humanitarian and socio-economic reasons as well as due to military conflicts, an increasing number of people have settled or have been re-settled with varying degrees of permanence in countries or regions other than their country or region of origin. Considering effective integration policies for Internally Displaced Persons (IDPs), voting rights are a natural starting point for a successful long-term integration as voting encourages IDPs to actively participate in the life of their community. 2. Even though IDPs are frequently disenfranchised because they face legal and practical challenges with regard to voting rights, international standards and best practices promote the enforcement of their right to political participation. In particular, the existence of a “genuine link” between IDPs and the place where they cast a ballot at local level is of critical importance with respect to voting rights as a successful element of their integration. ... 4. The Congress recognises the responsibility municipalities and regions bear with regard to promoting the integration, participation and non-discrimination of IDPs and encouraging good relations between them and local residents. ... 6. Against this background, the Congress has specifically examined the international standards and best practices with regard to voting rights at local level of IDPs. As a consequence, it recommends that the Committee of Ministers invite the governments of member States to ensure that: - residence requirements do not prevent IDPs from exercising their voting rights, in particular that procedures for changing residence are appropriate so that IDPs can easily move their registration between their constituency of origin and their current constituency (and vice versa) without undue obstacles or delays; - legal provisions do not require IDPs to choose between expressing their voting rights and being eligible for IDP status ...” Recommendation Rec(2006)6 of the Committee of Ministers to member [S]tates on internally displaced persons 30. This recommendation, adopted by the Committee of Ministers on 5 April 2006, reads, in so far as relevant, as follows: “The Committee of Ministers ... Considering that a large number of citizens of the Council of Europe member [S]tates cannot fully benefit from their human rights as a consequence of the fact that they have been forced or obliged to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalised violence, violations of human rights or natural or man-made disasters, without crossing an internationally recognised state border; ... Recognising that internally displaced persons have specific needs by virtue of their displacement; ... Recommends that governments of member [S]tates be guided, when formulating their internal legislation and practice, and when faced with internal displacement, by the following principles: ... 2. Internally displaced persons shall not be discriminated against because of their displacement. Member states should take adequate and effective measures to ensure equal treatment among internally displaced persons and between them and other citizens. This may entail the obligation to consider specific treatment tailored to meet internally displaced persons’ needs; ... 9. Member states should take appropriate legal and practical measures to enable internally displaced persons to effectively exercise their right to vote in national, regional or local elections and to ensure that this right is not infringed by obstacles of a practical nature...” Code of Good Practice in Electoral Matters 31. This document, adopted by the European Commission for Democracy through Law (Venice Commission) at its 51st Plenary Session (5-6 July 2002) and submitted to the Parliamentary Assembly of the Council of Europe on 6 November 2002, includes the Commission’s guidelines as to the residence requirement in respect of voting and standing in elections: “c. Residence: i. a residence requirement may be imposed; ii. residence in this case means habitual residence; iii. a length of residence requirement may be imposed on nationals solely for local or regional elections; iv. the requisite period of residence should not exceed six months; a longer period may be required only to protect national minorities; ...” 32. The explanatory report to the Code further elaborates: “c. Thirdly, the right to vote and/or the right to stand for election may be subject to residence requirements, residence in this case meaning habitual residence. Where local and regional elections are concerned, the residence requirement is not incompatible a priori with the principle of universal suffrage, if the residence period specified does not exceed a few months; any longer period is acceptable only to protect national minorities. Conversely, quite a few states grant their nationals living abroad the right to vote, and even to be elected. This practice can lead to abuse in some special cases, e.g. where nationality is granted on an ethnic basis. Registration could take place where a voter has his or her secondary residence, if he or she resides there regularly and it appears, for example, on local tax payments; the voter must not then of course be registered where he or she has his or her principal residence. The freedom of movement of citizens within the country, together with their right to return at any time is one of the fundamental rights necessary for truly democratic elections. If persons, in exceptional cases, have been displaced against their will, they should, provisionally, have the possibility of being considered as resident at their former place of residence.” THE LAW JOINDER OF THE APPLICATIONS 33. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 1 OF protocol No. 12 to THE CONVENTION 34. The applicants complained under Article 1 of Protocol No. 12 to the Convention that they had not been allowed to participate in local elections in Kyiv, where they were registered as IDPs. That provision reads as follows: “1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.” Admissibility 35. The Government did not object to the admissibility of the applications. 36. The Court notes that the applications are neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible. MeritsThe applicants’ submissions The applicants’ submissions The applicants’ submissions 37. The applicants maintained that no local elections were held at their registered place of residence and that it was not easy for them to change their registered place of residence even if they wished to. Furthermore, changing their place of residence would entail the risk of losing their IDP status, as having one’s registered place of residence in the occupied territories was a prerequisite for obtaining IDP status. They furthermore maintained that their registered residence had an important symbolic meaning for them as it signified their bond with their abandoned home and that changing their registered place of residence would mean a loss of their property and their right to live in it. They also noted that they could get access to all other services provided by the State, such as medical care, on the basis of the address indicated in the IDP certificate, so the right to vote in local elections was the only right to which they were not entitled in their current territorial community. 38. The applicants submitted that they could not be compared to other people who did not reside at their own registered places of residence, as they had been forced to leave their homes and could not go back to them. As no elections were held at their registered places of residence, they could not participate in local elections at all, which also distinguished them from those who could return to their registered places of residence and vote in local elections. 39. The applicants agreed that it was necessary to regulate the participation of citizens in local elections; they considered, however, that the way that such participation was regulated under national law and current administrative and judicial practice was to their detriment and did not take into account their situation as IDPs. They considered themselves to be more integrated into the local community – in which they had been residing for more than a year, and were paying local taxes and were using medical, social and other services provided by local authorities – than people whose registered place of residence was in Kyiv but who lived elsewhere. Even so, the latter were considered as belonging to the local community in Kyiv and could vote there, while the applicants did not enjoy of that right. 40. The applicants considered that they belonged to a uniquely disadvantaged and vulnerable group that required the Government to take particular measures in order to ensure their equal participation in local elections. Therefore, they considered that the difference in treatment to which they were subjected had no reasonable and objective justification. The Government’s submissions 41. The Government maintained that under the law in force, IDPs were not allowed to vote in local elections without changing their registered place of residence. The applicants were thus not treated differently from any other Ukrainian citizen living outside his or her registered place of residence. The Government furthermore noted that the applicants had not complained that they had been treated differently but rather that they should – because of their IDP status – be treated differently from other people living outside their registered place of residence. According to the Government, IDPs did not constitute a vulnerable group that under the Court’s case-law would require special treatment and positive discrimination. The Court’s assessment (a) General principles 42. The Court reiterates that whereas Article 14 of the Convention prohibits discrimination in the enjoyment of “the rights and freedoms set forth in [the] Convention”, Article 1 of Protocol No. 12 extends the scope of protection to “any right set forth by law”. It thus introduces a general prohibition on discrimination (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 53, ECHR 2009). 43. The term “discrimination” used in Article 14 is also used in Article 1 of Protocol No. 12. The Court reiterates that notwithstanding the difference in scope between those provisions, the meaning of this term in Article 1 of Protocol No. 12 was intended to be identical to that in Article 14 (see paragraph 18 of the Explanatory Report to Protocol No. 12). The Court sees no reason to depart from the settled interpretation of “discrimination”, as developed in the jurisprudence concerning Article 14 in applying the same term under Article 1 of Protocol No. 12 (ibid., § 55; see also Zornić v. Bosnia and Herzegovina, no. 3681/06, § 27, 15 July 2014). 44. In order for an issue of discrimination to arise under Article 14, there must be a difference in the treatment of persons in analogous, or relevantly similar, situations (see, mutatis mutandis, Molla Sali v. Greece [GC], no. 20452/14, § 133, 19 December 2018, with further references, and D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007 ‑ IV). The right not to be discriminated against is also violated when States, without an objective and reasonable justification, fail to treat differently persons whose situations are significantly different. The prohibition of discrimination will therefore also give rise to positive obligations for the Contracting States to make necessary distinctions between persons or groups whose circumstances are relevantly and significantly different (see, mutatis mutandis, Berkman v. Russia, no. 46712/15, § 49, 1 December 2020, with further references). 45. Lastly, the Court notes that the responsibility of the State would also be engaged if the discrimination complained of resulted from a failure on the State’s part to secure to the applicant under domestic law the rights set forth in the Convention. When examining this question under Article 1 of Protocol No. 12 to the Convention, such a failure on the State’s part may concern “any right set forth by law” ( Baralija v. Bosnia and Herzegovina, no. 30100/18, § 50, 29 October 2019). (b) Application of those principles to the present case 46. The Court notes that it is not disputed that the applicants had a general right set forth by the Constitution (namely the right to vote), and that they met the general conditions for the exercise of that constitutional right (see paragraph 13 above). It sees no reason to hold otherwise. 47. It is not disputed, either, that the applicants were treated in the same way as any other person residing outside their registered place of residence, in so far as the right to vote in local elections was concerned. 48. The residence requirement for voters in local elections under Ukrainian law does not imply any requisite period of residence, but solely the fact that voters’ place of residence within the given constituency has been formally registered. From the relevant decisions of the administrative bodies and the courts it is clear that such an understanding of the domestic law is predominant. Moreover, as the Supreme Court noted in its review of a decision delivered by the lower-instance courts in respect of a case similar to that of the applicants (see paragraph 27 above), the registered place of residence indicated in a person’s passport has been of key significance in the resolution of election disputes concerning the inclusion of such a person in a constituency’s list of voters; that is because it serves as confirmation that that person “belongs” to a particular local community and thus to the electoral constituency contained therein. 49. Thus, the domestic law and practice that applied at the material time clearly provided that persons who did not have a registered place of residence and, hence an electoral address, in the constituency where they actually lived were not allowed to participate in local elections, regardless of any other factors or circumstances. Even though the participation of IDPs in local elections was guaranteed by section 8 of the IDP Act, it provided that IDPs could do so “by changing a place of voting without changing the electoral address” (see paragraph 24 above). Thus, this provision was not fully aligned to the relevant legislation on local elections which consistently provided that the mentioned procedure of changing a voting address did not apply to local elections (see paragraphs 15 and 17 above). Therefore, as the Government submitted, in practice IDPs were not treated in this respect any differently from any other group of people who lived outside their registered places of residence and could not participate in local elections at places of their actual residence. However, failure to treat differently persons whose situation is significantly different may amount to discrimination (see, mutatis mutandis, Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000 ‑ IV). Furthermore, the Court has previously accepted that a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered to be discriminatory, regardless of whether or not it is specifically aimed at that group, and that discrimination potentially contrary to the Convention may result from a de facto situation (see D.H. and Others, cited above, § 175 ). 50. The question is therefore whether the applicants, as IDPs, were in a significantly different situation and therefore required treatment that would put them, de facto, on an equal footing with other citizens of Ukraine in respect of the enjoyment of their right to vote in local elections, as guaranteed by the national law. 51. The Court takes note of the arguments presented by the applicants as to (i) why they should be allowed to keep their registered places of residence respectively in Crimea and Donetsk and (ii) the fact that they would risk losing their IDP status in the event that they changed their registered residential addresses (see paragraph 37 above). Indeed, the applicants found themselves in a situation that was clearly different from that faced by other mobile population groups, as they were forced to leave their registered places of residence and no local elections were organised at their places of residence, as those territories were outside of the Government’s control (see paragraphs 8 and 38 above). Therefore, despite the provisions of the IDP Act (see paragraph 24 above), the applicants in practice were not entitled to participate in local elections without changing their electoral addresses which were linked exclusively to their registered places of residence at the material time (see paragraph 17 above). 52. The above considerations demonstrate that the applicants, as well as any other IDPs, were in a significantly different situation from citizens living at their registered places and even from other mobile groups of population who could come back to their registered places of residence and vote in local elections there. It follows that measures to put them on an equal footing with others in order to be able effectively to enjoy a right guaranteed by national law – the right to vote in local elections – were necessary in order to avoid discriminating against them. 53. The Court reiterates that there are numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe which it is for each Contracting State to mould into their own democratic vision (see, Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, §.61, ECHR 2005 ‑ IX ). Therefore, the States are allowed a wide margin of appreciation in this area. 54. The Court notes that the Government made efforts to secure the rights of IDPs by enacting the special IDP Act (see, paragraphs 22 to 24 above), which intended to guarantee, among other things, the right of IDPs to participate in local elections. The IDP Act, however, was not supported at the material time by further amendments to the relevant legislation on local elections, which required that the citizens should “belong” to a local community in order to able to participate in local elections (see paragraph 14 above) and, as a result, the intended guarantee did not materialise. In these circumstances, the requirement of “belonging” to a local community, which was undoubtedly legitimate in principle, could be satisfied in only one way: through the registration of one’s place of residence as being located within the local community in question. There was no exception to this rule and no alternative means existed of proving that the person in question was sufficiently integrated into the local community and “belonged” to it. Therefore, the adoption of the IDP Act did not in itself put the applicants on an equal footing as others in the enjoyment of the right to vote in local elections. 55. As a result, even though they had resided in Kyiv for about a year (or even longer), were payers of local taxes and consumers of local services (see paragraph 39 above) and thus were concerned with the community’s day to day problems and had sufficient knowledge of them (see and compare, Sitaropoulos and Giakoumopoulos v. Greece [GC], no. 42202/07, § 79, ECHR 2012 ), they had no possibility to participate in the local affairs of their new communities for the period of their enforced absence from their permanent homes, despite the fact that such participation was deemed to constitute an important element of IDPs’ integration (see paragraphs 22 to 25 above). 56. The Court notes that the relevant legislation was later amended to unlink the electoral address from the registered place of residence upon request of a voter, which allowed IDPs to seek inclusion in the voters’ list for local elections (see paragraph 28 above). These amendments, however, took place more than four years after the impugned events and cannot affect the Court’s conclusions in the present case. 57. In sum, the Court finds that at the material time, by failing to take into consideration their particular different situation, the authorities discriminated against them in the enjoyment of their right to vote in local elections, guaranteed under domestic law. 58. There has accordingly been a violation of Article 1 of Protocol No. 12 to the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 59. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 60. Ms Terekhova claimed 25,000 euros (EUR) in respect of non ‑ pecuniary damage. The other three applicants asked to be awarded, in respect of non-pecuniary damage, whatever amounts that the Court saw fit. 61. The Government considered that there had been no violation of the Convention and that these claims had therefore to be rejected. 62. The Court considers it equitable to award EUR 4,500 to each of the applicants in respect of non-pecuniary damage, plus any tax that may be chargeable. Costs and expenses 63. Ms Terekhova claimed EUR 8,700 for the costs and expenses incurred before the Court. She submitted a time sheet from her representatives. 64. The other three applicants claimed, jointly, 5,083.84 pounds sterling (GBP) as well as EUR 683.06 (the equivalent of GBP 590.17), and 75,750 Ukrainian hryvnias (UAH – the equivalent of GBP 2,041.76), related to their legal representation before the Court. They submitted several time sheets from their lawyers and several invoices for translation expenses. 65. The Government submitted that there was no proof that the amounts claimed had been actually paid to the applicants’ representatives. They also doubted the reasonableness of those expenses. 66. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court also points out that under Rule 60 of the Rules of Court any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents or vouchers, failing which the Chamber may reject the claim in whole or in part (see Malik Babayev v. Azerbaijan, no. 30500/11, § 97, 1 June 2017). In the present case the applicants failed to produce any contract with their representatives or any other documents showing that they had paid or were under a legal obligation to pay the fees charged by their representatives (see Merabishvili v. Georgia [GC], no. 72508/13, § 372, 28 November 2017). As regards the part of the claim for translation of various documents, the Court does not consider that the translation of those documents was necessary for its proceedings (see Allahverdiyev v. Azerbaijan, no. 49192/08, § 71, 6 March 2014, and Sakit Zahidov v. Azerbaijan, no. 51164/07, § 70, 12 November 2015 ). Therefore, the Court dismisses the claim for costs and expenses. Default interest 67. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 1 (general prohibition of discrimination) to the Convention, finding that the Ukrainian authorities had failed to take into consideration the particular situation of the applicants as internally displaced persons and had discriminated against them in the enjoyment of their right to vote in local elections. |
939 | Concurrent judicial functions in the same case | II. RELEVANT DOMESTIC AND INTERNATIONAL LAW A. The United Nations Single Convention on Narcotic Drugs, 1961 27. The relevant provisions of the United Nations Single Convention on Narcotic Drugs of 30 March 1961, to which France is a party, read as follows: Article 35 – Action against the Illicit Traffic “Having due regard to their constitutional, legal and administrative systems, the Parties shall: (a) Make arrangements at the national level for coordination of preventive and repressive action against the illicit traffic; to this end they may usefully designate an appropriate agency responsible for such coordination; (b) Assist each other in the campaign against the illicit traffic in narcotic drugs; (c) Cooperate closely with each other and with the competent international organisations of which they are members with a view to maintaining a coordinated campaign against the illicit traffic; (d) Ensure that international cooperation between the appropriate agencies be conducted in an expeditious manner; and (e) Ensure that where legal papers are transmitted internationally for the purposes of a prosecution, the transmittal be effected in an expeditious manner to the bodies designated by the Parties; this requirement shall be without prejudice to the right of a Party to require that legal papers be sent to it through the diplomatic channel; (f) Furnish, if they deem it appropriate, to the Board and the Commission through the Secretary-General, in addition to information required by Article 18, information relating to illicit drug activity within their borders, including information on illicit cultivation, production, manufacture and use of, and on illicit trafficking in, drugs; and (g) Furnish the information referred to in the preceding paragraph as far as possible in such manner, and by such dates as the Board may request; if requested by a Party, the Board may offer its advice to it in furnishing the information and in endeavouring to reduce the illicit drug activity within the borders of that Party.” B. The United Nations Convention on the Law of the Sea, signed at Montego Bay on 10 December 1982 28. The relevant provisions of the United Nations Convention on the Law of the Sea (“the Montego Bay Convention”) (to which Cambodia is not a party) read as follows: Article 108: Illicit traffic in narcotic drugs or psychotropic substances “1. All States shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions. 2. Any State which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances may request the cooperation of other States to suppress such traffic.” Article 110: Right of visit “1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in accordance with Articles 95 and 96, is not justified in boarding it unless there is reasonable ground for suspecting that: (a) the ship is engaged in piracy; (b) the ship is engaged in the slave trade; (c) the ship is engaged in unauthorised broadcasting and the flag State of the warship has jurisdiction under Article 109; (d) the ship is without nationality; or (e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship. 2. In the cases provided for in paragraph 1, the warship may proceed to verify the ship’s right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration. 3. If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained. 4. These provisions apply mutatis mutandis to military aircraft. 5. These provisions also apply to any other duly authorised ships or aircraft clearly marked and identifiable as being on government service.” C. The United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, signed in Vienna on 20 December 1988 29. The relevant provisions of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (“the Vienna Convention”) (to which France is a party but not Cambodia) read as follows: Article 17 – Illicit traffic by sea “1. The Parties shall cooperate to the fullest extent possible to suppress illicit traffic by sea, in conformity with the international law of the sea. 2. A Party which has reasonable grounds to suspect that a vessel flying its flag or not displaying a flag or marks of registry is engaged in illicit traffic may request the assistance of other Parties in suppressing its use for that purpose. The Parties so requested shall render such assistance within the means available to them. 3. A Party which has reasonable grounds to suspect that a vessel exercising freedom of navigation in accordance with international law, and flying the flag or displaying marks of registry of another Party is engaged in illicit traffic may so notify the flag State, request confirmation of registry and, if confirmed, request authorisation from the flag State to take appropriate measures in regard to that vessel. 4. In accordance with paragraph 3 or in accordance with treaties in force between them or in accordance with any agreement or arrangement otherwise reached between those Parties, the flag State may authorise the requesting State to, inter alia : (a) Board the vessel; (b) Search the vessel; (c) If evidence of involvement in illicit traffic is found, take appropriate action with respect to the vessel, persons and cargo on board. 5. Where action is taken pursuant to this Article, the Parties concerned shall take due account of the need not to endanger the safety of life at sea, the security of the vessel and the cargo or to prejudice the commercial and legal interests of the flag State or any other interested State. 6. The flag State may, consistent with its obligations in paragraph 1 of this Article, subject its authorisation to conditions to be mutually agreed between it and the requesting Party, including conditions relating to responsibility. 7. For the purposes of paragraphs 3 and 4 of this Article, a Party shall respond expeditiously to a request from another Party to determine whether a vessel that is flying its flag is entitled to do so, and to requests for authorisation made pursuant to paragraph 3. At the time of becoming a Party to this Convention, each Party shall designate an authority or, when necessary, authorities to receive and respond to such requests. Such designation shall be notified through the Secretary-General to all other Parties within one month of the designation. 8. A Party which has taken any action in accordance with this Article shall promptly inform the flag State concerned of the results of that action. 9. The Parties shall consider entering into bilateral or regional agreements or arrangements to carry out, or to enhance the effectiveness of, the provisions of this Article. 10. Action pursuant to paragraph 4 of this Article shall be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorised to that effect. 11. Any action taken in accordance with this Article shall take due account of the need not to interfere with or affect the rights and obligations and the exercise of jurisdiction of coastal States in accordance with the international law of the sea.” D. Council of Europe Agreement on Illicit Traffic by Sea, implementing Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, done at Strasbourg on 31 January 1995 and which entered into force on 1 May 2000 (“the Council of Europe Agreement of 31 January 1995”) 30. The relevant provisions of this agreement, signed by twenty-two member States of the Council of Europe (but not by France) and ratified by thirteen, read as follows: “The member States of the Council of Europe, having expressed their consent to be bound by the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, done at Vienna on 20 December 1988, hereinafter referred to as ‘the Vienna Convention’, Considering that the aim of the Council of Europe is to bring about a closer union between its members; Convinced of the need to pursue a common criminal policy aimed at the protection of society; Considering that the fight against serious crime, which has become an increasingly international problem, calls for close cooperation on an international scale; Desiring to increase their cooperation to the fullest possible extent in the suppression of illicit traffic in narcotic drugs and psychotropic substances by sea, in conformity with the international law of the sea and in full respect of the principle of right of freedom of navigation; Considering, therefore, that Article 17 of the Vienna Convention should be supplemented by a regional agreement to carry out, and to enhance the effectiveness of the provisions of that Article, Have agreed as follows: ... Section 3 – Rules governing action Article 9 – Authorised actions 1. Having received the authorisation of the flag State, and subject to the conditions or limitations, if any, made under Article 8, paragraph 1, the intervening State may take the following actions: THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 38. The applicants claimed that they had been arbitrarily deprived of their liberty after the ship was boarded by the French authorities. They relied on Article 5 § 1 of the Convention, the relevant parts of which provide: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...” A. The Chamber judgment 39. The Chamber disagreed with the French courts’ approach in so far as they referred to international conventions to which Cambodia was not party and relied on legal provisions which, at the material time, provided for extraterritorial intervention by the French authorities only on French ships, “ships flying the flag of a State Party to the Vienna Convention of 20 December 1988 [which Cambodia has not ratified, as mentioned previously] ... or lawfully registered in such a State, at the request or with the agreement of the flag State”, and on ships flying no flag or having no nationality. In addition to the fact that the Winner did not fit into any of those categories, it noted that the Law of 15 July 1994 had been amended, inter alia, so that it no longer referred only to States Parties to the Vienna Convention. It also considered that the Government’s argument concerning the applicability of and compliance with the legal provisions concerned was based on a contradiction, as they had submitted that at the time of the interception the Winner had been flying no flag, while at the same time asserting that the French authorities had previously sought confirmation from the Cambodian authorities that the ship was registered in their country and that the ship had been identified as the Winner before the operations commenced. 40. The Chamber nevertheless agreed that, regard being had to Article 108 of the Montego Bay Convention, the Cambodian authorities’ diplomatic note of 7 June 2002 could be considered to have provided a legal basis for the interception and boarding of the Winner by the French authorities, although this did not apply to the thirteen days’ deprivation of liberty imposed on the crew on board the ship. It further found that neither French law nor Article 17 of the Vienna Convention made any more specific provision for deprivation of liberty of the type and duration of that to which the applicants were subjected. 41. In the Chamber’s opinion, the legal provisions relied on by the Government did not afford sufficient protection against arbitrary violations of the right to liberty: firstly, none of those provisions referred specifically to depriving the crew of the intercepted ship of their liberty or regulated the conditions of deprivation of liberty on board the ship; secondly, they neglected to place the detention under the supervision of a judicial authority. On this last point the Chamber noted that although measures taken under the Law of 15 July 1994 were taken under the supervision of the public prosecutor, the public prosecutor was not a “competent legal authority” within the meaning the Court’s case-law gave to that notion (see Schiesser v. Switzerland, 4 December 1979, §§ 29-30, Series A no. 34). 42. It accordingly found that the applicants had not been deprived of their liberty “in accordance with a procedure prescribed by law”, within the meaning of Article 5 § 1. B. The parties’ submissions before the Grand Chamber 1. The applicants 43. The applicants, who shared the analysis followed by the Chamber in its judgment, considered that the action taken by the French authorities on the high seas and their detention on board the Winner had no legal basis. They submitted that there was no legal basis for the boarding of the Winner either in international conventions to which Cambodia was not a party, be it the Montego Bay Convention or the Vienna Convention, or in the diplomatic note of the Ministry of Foreign Affairs of 7 June 2002. 44. They argued that Article 108 of the Montego Bay Convention was not applicable in this case because, in their submission, it was not Cambodia, the flag State, that had requested the cooperation of France, but France that had taken the initiative of requesting authorisation to stop a ship flying the Cambodian flag. The fact that Cambodia granted that request could not be likened to a request for cooperation within the meaning of Article 108 of the Montego Bay Convention. As to Article 110 of that Convention, they submitted that the Government were proposing an interpretation which distorted its meaning, as the Winner had not been without nationality and had not had the same nationality as the French warship. 45. The applicants also considered that Law no. 94-589 of 15 July 1994 was not applicable, particularly because it referred to international conventions to which Cambodia was not a party. 46. They considered it established that domestic and international law failed to afford effective protection against arbitrary interference when it did not provide for the possibility of contacting a lawyer or family member but did, according to the Government, authorise thirteen days’ detention. 47. Concerning the diplomatic note of 7 June 2002, the applicants also challenged the Government’s legal interpretation. They maintained that it could not be considered as a delegation of jurisdiction to France. Even assuming, for argument’s sake, that such an ad hoc agreement did justify French intervention in keeping with the principle of public international law that a State could relinquish part of its sovereignty other than by a convention, they alleged that the limits of such an exceptional transfer of power had been considerably exceeded in the present case. According to the Government’s own submissions, the agreement had merely concerned a “request to intercept”, while the Cambodian government had only authorised the “stopping” of the ship (“ arraisonnement ” in French). Strictly speaking, this consisted solely in stopping the ship at sea or on arrival in port to make certain verifications (concerning its identity and its nationality, for example): it did not extend to searches or arrests on board the ship. Yet that was what had happened in this case: the applicants had been arrested and confined to their cabins for thirteen days. Their detention on board the Winner and their judgment in another country had not been authorised by Cambodia. The applicants thus challenged the existence of any ad hoc agreement justifying the stopping of the Winner and considered that even if there had been such an agreement, it did not justify the detention of the crew following the French military operation. 48. The applicants further submitted that the production before the Grand Chamber of a diplomatic note dated 9 September 2008, sent by the Cambodian authorities at the request of the French Government seven years after the events and two months after the Fifth Section of the Court had pronounced judgment in their favour, was “very late and quite astounding”. They requested that the note, which had never been produced in the proceedings before the domestic courts and the Fifth Section of the Court, as it had not existed at the time and amounted to a reinterpretation of the facts after the event, be disallowed as evidence. 2. The Government 49. In their preliminary observations the Government stressed that the events in this case had taken place on the high seas, so that it was necessary to take into account the specificities of the maritime environment and of navigation at sea. In the Government’s submissions this had two specific consequences. First of all, the Convention was completely silent about maritime matters and the Government argued that it was possible to draw a parallel with the solution adopted by the Court in cases concerning the handing over of persons by one State to another in the context of extradition (see Öcalan v. Turkey [GC], no. 46221/99, ECHR 2005-IV; Freda v. Italy, no. 8916/80, Commission decision of 7 October 1980, Decisions and Reports (DR) 21, p. 254; Altmann (Barbie) v. France, no. 10689/83, Commission decision of 4 July 1984, DR 37, p. 230; and Sánchez Ramirez v. France, no. 28780/95, Commission decision of 24 June 1996, DR 86-A, p. 155). The Government considered that “the same reasoning, mutatis mutandis, could be applied in this case” for want of any provision in the Convention concerning arrangements for rerouting ships, or specific provisions concerning maritime matters, which made the Convention inapplicable ratione materiae. 50. Secondly, they submitted that freedom to come and go on board a ship had more restrictive limits, which were the confines of the ship itself: the lawful rerouting of a ship therefore necessarily authorised restrictions on the movements of the people on board; the specificities and the risks of navigation at sea justified the extensive powers enjoyed by ships’ captains. The Government inferred that the applicants had not been deprived of their liberty within the meaning of Article 5 but had been subjected to restrictions of liberty that were justified, restrictions they were challenging on a purely formalistic and litigious basis. The Government submitted that Article 5 of the Convention was not applicable in the present case. 51. In the alternative, on the merits, the Government submitted that the deprivation of liberty imposed on the applicants for the thirteen days during which the Winner had been rerouted had been lawful, and disputed the findings of the Chamber. 52. The lawfulness of the measure had to be examined from two points of view, that of public international law and that of domestic law. 53. With regard to public international law, the Government pointed out that the Winner had been flying no flag and had refused to identify itself. The ship’s crew had therefore deliberately placed itself in the situation provided for in Article 110 of the Montego Bay Convention, which provided expressly for a warship to be able to stop a ship that is “refusing to show its flag”, a principle unanimously accepted under the law of the sea. 54. The Government considered in any event that the agreement given by Cambodia to the French authorities by diplomatic note had made the intervention of the French navy perfectly lawful from the international law perspective. The Montego Bay Convention well illustrated the signatory States’ aim of “cohabitation” in what belonged to all and yet to none, by strictly defining the conditions in which a State could interfere with another State’s sovereignty by having a naval vessel inspect a ship flying a foreign flag. And although Cambodia was not a party to the Vienna Convention, the agreement which that sovereign State had given by diplomatic note had been self-sufficient with regard to the principles of public international law and the law of the sea. The diplomatic note of 7 June 2002 had authorised the stopping of the ship and all “its consequences”, as confirmed by the Cambodian authorities in their note of 9 September 2008. In such circumstances the agreement concerned had provided a legal basis for the rerouting of the Winner and its crew. 55. The Government submitted in addition that the agreement concerned had been fully in compliance with the requirements of public international law. The damage caused by drug trafficking in democratic societies explained why Article 108 of the Montego Bay Convention of 1982, the Vienna Convention of 1988 and the Council of Europe Agreement of 31 January 1995 all provided for the requisite cooperation between States to put a stop to the traffic. As the sea could be a “safe haven” (see Öcalan, cited above, § 88) for traffickers, international law had provided for the flag State to be able to delegate its power to combat this type of crime. The Government further noted that in Rigopoulos v. Spain ((dec.), no. 37388/97, ECHR 1999-II), the Court had found that the verbal agreement given to Spain by Panama had been sufficient to make the operations lawful under public international law. 56. With regard to domestic law, the Government contested the Chamber’s analysis, pointing out that according to the Court’s case-law it was first and foremost for the domestic authorities to interpret and apply their country’s law, especially when, as in this case, what was in question was not the substance of the law but its scope. They submitted that in any event the Investigation Division had not based its findings solely on Article 17 of the Vienna Convention, but also on the general provisions of Law no. 94-589 of 15 July 1994, which empowered commanders of naval vessels responsible for surveillance at sea to carry out, or have carried out “inspection and coercion measures”. They accordingly considered that that part of the law had provided a legal basis for the measures complained of, because the ship was suspected of drug trafficking and because it had been flying no flag, had refused to identify itself and had responded aggressively by making dangerous manoeuvres. 57. The Government set great store by two factors. First, a State not party to a convention could, by special agreement, in given circumstances, consent to the application of provisions of the convention concerned, and the French courts had thus been able to find that French law should apply. Secondly, French law applied because the Winner had been flying no flag and had refused to identify itself. 58. As to the quality of the legal basis, which the Chamber had questioned, the Government maintained that the specificity of the law of the sea had to be taken into consideration to appreciate the precise meaning of the legal standards; the French Law of 15 July 1994, in conjunction with Cambodia’s agreement in conformity with the provisions of Article 17 § 4 of the Vienna Convention and the Montego Bay Convention, had authorised the rerouting of the ship. So, as the law provided for the ship to be rerouted, it also provided for restriction of the freedom of movement of those on board, as the two were inseparable. According to the Government, the rerouting was nevertheless to be considered as a preliminary to the suspects being brought before the judicial authorities. 59. In any event, the unpredictability of navigation and the vastness of the oceans made it impossible to provide in detail for every eventuality when ships were rerouted. The Government considered that the allegation that it had not been possible for the applicants to contact a relative or a lawyer was unfounded, as the technical conditions for such contact were not always available; besides, as the applicants had not established that they had been in contact with their families or their lawyers prior to the interception by the French navy, their practical situation had not been altered by the rerouting of their ship. The Government also pointed out that the length of the voyage had merely been a material contingency and that the applicants had not been questioned during the thirteen days spent on board, naval personnel having no power to take such action. Accordingly, the Government considered that the right to contact a lawyer or a family member would have been theoretical and illusory. 60. The Government then broached the matter of supervision by the public prosecutor. They argued that the Chamber judgment confused the notions referred to in Article 5 §§ 1 (c) and 3 of the Convention, while noting that the applicants were to be presented, when they arrived in Brest, not to the public prosecutor but to an investigating judge. 61. They saw the fact that the rerouting of the ship had been carried out under the supervision of the public prosecutor as a guarantee against arbitrary treatment, arguing that in view of the guarantees of independence public prosecutors offered, they should be considered judicial authorities. On this last point the Government developed arguments demonstrating the guarantees of the independence of public prosecutors in terms of their status, the way they were recruited, their powers and their institutional role. They pointed out, in particular, that Article 64 of the French Constitution enshrined the independence of the “judicial authority” and that the Constitutional Council had found that the said judicial authority included both judges and public prosecutors. C. The Court’s assessment 1. Article 1 of the Convention 62. The Court considers that the first question to be decided in this case is whether the events in dispute, from the stopping of the Winner on the high seas and throughout the thirteen days of alleged deprivation of liberty until the ship reached Brest, brought the applicants within the jurisdiction of France for the purposes of Article 1 of the Convention, which reads as follows: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.” 63. Article 1 sets a limit, notably territorial, on the reach of the Convention. In particular, the engagement undertaken by a Contracting State is confined to “securing” (“ reconnaître ” in the French text) the listed rights and freedoms to persons within its own “jurisdiction”. Further, the Convention does not govern the actions of States not parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States (see Soering v. the United Kingdom, 7 July 1989, § 86, Series A no. 161, and Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, § 66, ECHR 2001-XII). 64. In keeping with the essentially territorial notion of jurisdiction, the Court has accepted only in exceptional cases that acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them for the purposes of Article 1 of the Convention (see Banković and Others, cited above, § 67, and Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 314, ECHR 2004 ‑ VII). In its first Loizidou judgment (preliminary objections), for example, the Court found that bearing in mind the object and purpose of the Convention, the responsibility of a Contracting Party might also arise when as a consequence of military action – whether lawful or unlawful – it exercised effective control of an area outside its national territory (see Loizidou v. Turkey (preliminary objections), 23 March 1995, § 62, Series A no. 310). This excluded situations, however, where – as in the Banković and Others case – what was at issue was an instantaneous extraterritorial act, as the provisions of Article 1 did not admit of a “cause and effect” notion of “jurisdiction” (cited above, § 75). 65. Additionally, the Court notes that other recognised instances of the extraterritorial exercise of jurisdiction by a State include cases involving the activities of its diplomatic or consular agents abroad and on board aircraft and ships registered in, or flying the flag of, that State. In these specific situations, customary international law and treaty provisions have clearly recognised and defined the extraterritorial exercise of jurisdiction by the relevant State (ibid., § 73). 66. In the instant case, the Court notes that a French warship, the frigate Lieutenant de vaisseau Le Hénaff, was specially instructed by the French naval authorities to intercept the Winner, and that the frigate sailed out of Brest harbour on that mission carrying on board the French navy commando unit Jaubert, a special forces team specialised in boarding vessels at sea. When the Winner was spotted off Cape Verde on 13 June 2002, the frigate issued several warnings and fired warning shots, before firing directly at the merchant ship, under orders from France’s maritime prefect for the Atlantic. When they boarded the Winner, the French commando team were obliged to use their weapons to defend themselves, and subsequently kept the crew members under their exclusive guard and confined them to their cabins during the journey to France, where they arrived on 26 June 2002. The rerouting of the Winner to France, by a decision of the French authorities, was made possible by sending a tug out of Brest harbour to tow the ship back to the French port, escorted by another warship, the frigate Commandant Bouan, all under orders from the maritime prefect and at the request of the Brest public prosecutor. 67. That being so, the Court considers that, as this was a case of France having exercised full and exclusive control over the Winner and its crew, at least de facto, from the time of its interception, in a continuous and uninterrupted manner until they were tried in France, the applicants were effectively within France’s jurisdiction for the purposes of Article 1 of the Convention (contrast Banković and Others, cited above). 2. The Government’s preliminary observations 68. The Court notes at the outset that the Government contended for the first time before the Grand Chamber, in their preliminary observations, that the applicants’ complaints were incompatible ratione materiae with the provisions of Article 5 of the Convention, their observations on the merits being submitted only “in the alternative”. 69. The Grand Chamber reiterates that it is not precluded from deciding in appropriate cases questions concerning the admissibility of an application under Article 35 § 4 of the Convention, as that provision enables the Court to dismiss applications it considers inadmissible “at any stage of the proceedings” (see Odièvre v. France [GC], no. 42326/98, § 22, ECHR 2003-III; Azinas v. Cyprus [GC], no. 56679/00, § 32, ECHR 2004-III; Yumak and Sadak v. Turkey [GC], no. 10226/03, § 72, ECHR 2008; and Mooren v. Germany [GC], no. 11364/03, § 57, 9 July 2009). Under Rule 55 of the Rules of Court, any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its observations on the admissibility of the application submitted as provided in Rule 54 (compare N.C. v. Italy [GC], no. 24952/94, § 44, ECHR 2002-X; Azinas, cited above, §§ 32 and 37; Sejdovic v. Italy [GC], no. 56581/00, § 41, ECHR 2006-II; and Mooren, cited above). Only exceptional circumstances, such as the fact that the grounds for the objection of inadmissibility came to light late in the day, can dispense a government from the obligation to raise their objection in their observations on the admissibility of the application before the adoption of the Chamber’s admissibility decision (see N.C. v. Italy, cited above, § 44; Sejdovic, cited above, § 41; and Mooren, cited above). 70. In the instant case, the Court notes that, in the written observations on admissibility which they submitted to the Chamber, the Government did not argue that the complaints were incompatible ratione materiae with the provisions of Article 5 of the Convention, and the Court can discern no exceptional circumstance capable of dispensing the Government from raising that objection in their observations to the Chamber on admissibility. 71. The Government are accordingly estopped from raising a preliminary objection of incompatibility ratione materiae at this stage in the proceedings. In spite of this estoppel, however, the Court must examine this question, which goes to its jurisdiction, the extent of which is determined by the Convention itself, in particular by Article 32, and not by the parties’ submissions in a particular case (see Demir and Baykara v. Turkey [GC], no. 34503/97, ECHR 2008). 72. First of all, referring also to its finding that the applicants were within the jurisdiction of France for the purposes of Article 1 of the Convention, the Court considers that the preliminary observations on the applicability of Article 5 actually concern the merits of the application. 73. As to the observations concerning the existence or otherwise of the deprivation of liberty, the Court reiterates that Article 5 – paragraph 1 of which proclaims the “right to liberty” – is concerned with a person’s physical liberty. Its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion. In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5 the starting-point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question (see Amuur v. France, 25 June 1996, § 42, Reports of Judgments and Decisions 1996-III). The difference between deprivation of and restriction upon liberty is merely one of degree or intensity, and not one of nature or substance (see Guzzardi v. Italy, 6 November 1980, Series A no. 39, and Amuur, cited above). 74. In the Court’s opinion, while it is true that the applicants’ movements prior to the boarding of the Winner were already confined to the physical boundaries of the ship, so that there was a de facto restriction on their freedom to come and go, it cannot be said, as the Government submitted, that the measures taken after the ship was boarded merely placed a restriction on their freedom of movement. The crew members were placed under the control of the French special forces and confined to their cabins during the voyage. True, the Government maintained that during the voyage the restrictions were relaxed. In the Court’s view that does not alter the fact that the applicants were deprived of their liberty throughout the voyage as the ship’s course was imposed by the French forces. 75. Accordingly, the Court concludes that the applicants’ situation on board the Winner after it was boarded, because of the restrictions endured, amounted in practice to a deprivation of liberty, and that Article 5 § 1 applies to their case. 3. Article 5 § 1 of the Convention (a) The general principles 76. The Court reiterates that Article 5 of the Convention protects the right to liberty and security. This right is of the highest importance “in a democratic society” within the meaning of the Convention (see, among many other authorities, De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 65, Series A no. 12, and Winterwerp v. the Netherlands, 24 October 1979, § 37, Series A no. 33). 77. All persons are entitled to the protection of this right, that is to say, not to be deprived, or continue to be deprived, of their liberty (see Weeks v. the United Kingdom, 2 March 1987, § 40, Series A no. 114), save in accordance with the conditions specified in paragraph 1 of Article 5. 78. The list of exceptions to the right to liberty secured in Article 5 § 1 is an exhaustive one (see Quinn v. France, 22 March 1995, § 42, Series A no. 311, and Labita v. Italy [GC], no. 26772/95, § 170, ECHR 2000 ‑ IV), and only a narrow interpretation of those exceptions is consistent with the aim of that provision (see Engel and Others v. the Netherlands, 8 June 1976, § 58, Series A no. 22, and Amuur, cited above, § 42). 79. The Court further reiterates that where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law but also, where appropriate, to other applicable legal standards, including those which have their source in international law. In all cases it establishes the obligation to conform to the substantive and procedural rules of the laws concerned, but it also requires that any deprivation of liberty be compatible with the purpose of Article 5, namely, to protect the individual from arbitrariness (see, among many other authorities, Bozano v. France, 18 December 1986, § 54, Series A no. 111; Amuur, cited above, § 50; Assanidze v. Georgia [GC], no. 71503/01, § 171, ECHR 2004-II; Ilaşcu and Others, cited above, § 461; McKay v. the United Kingdom [GC], no. 543/03, § 30, ECHR 2006-X; and Mooren, cited above, § 76). 80. The Court stresses that where deprivation of liberty is concerned it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic and/or international law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires that all law be sufficiently precise to avoid all risk of arbitrariness and to allow the citizen – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances of the case, the consequences which a given action may entail (see, among other authorities, Amuur, cited above; Steel and Others v. the United Kingdom, 23 September 1998, § 54, Reports 1998 ‑ VII; Baranowski v. Poland, no. 28358/95, §§ 50-52, ECHR 2000-III; and Jėčius v. Lithuania, no. 34578/97, § 56, ECHR 2000-IX ). 81. Lastly, the Grand Chamber shares the view of the Government and the Chamber that it must be borne in mind that the measures taken by the French authorities against the Winner and its crew were taken in the context of France’s participation in the effort to combat international trafficking in drugs. As it has pointed out on numerous occasions, in view of the ravages drugs cause it can see in particular why the authorities of the Contracting States are so firm towards those who contribute to the spread of this scourge, and it is fully aware of the need to combat drug trafficking and, accordingly, to secure fruitful cooperation between States in this area. Nevertheless, the special nature of the maritime environment relied upon by the Government in the instant case cannot justify an area outside the law where ships’ crews are covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the Convention which the States have undertaken to secure to everyone within their jurisdiction, any more than it can provide offenders with a “safe haven”. (b) Application of the above principles 82. The Court notes first of all that it is not disputed that the purpose of the deprivation of liberty to which the applicants were subjected on board the Winner while it was being escorted to France was to bring them “before the competent legal authority” within the meaning of Article 5 § 1 (c) of the Convention. In this case, the Court notes that the parties disagree as to whether the facts of the case had a “legal basis” under public international law and domestic law. 83. The Court notes at the outset that in cases concerning drug trafficking on the high seas public international law upholds the principle that the flag State – in this case Cambodia – has jurisdiction. It also notes that Cambodia is party neither to the Montego Bay Convention nor to the Vienna Convention. 84. The Government subscribe to the Court of Cassation’s view that the intervention of the French authorities found justification in Article 108 § 2 of the Montego Bay Convention. However, Article 108 § 2 specifically authorises “a State which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in drugs” to request the cooperation of other States. It does not provide in general for States to request cooperation whenever they suspect a ship not flying their flag of such trafficking. The Court considers that Article 108 does not provide any legal basis for the action taken by the French authorities in this case. As Cambodia is not party to the Montego Bay Convention, it cannot have been acting under that Convention when it sent its diplomatic note of 7 June 2002. Nor did France’s request for cooperation from the Cambodian authorities fall within the scope of Article 108, as it was not based on France’s suspicion that a ship flying the French flag was engaged in drug trafficking. 85. This lacuna in Article 108 of the Montego Bay Convention vis-à-vis the fight against illicit trafficking in drugs is also reflected in the rest of the text: not only are the provisions concerning the fight against drug trafficking minimal – in comparison with those concerning piracy, for example, on which there are eight Articles, which lay down, inter alia, the principle of universal jurisdiction as an exception to the rule of the exclusive jurisdiction of the flag State – but fighting drug trafficking is not among the offences, listed in Article 110, suspicion of which gives rise to the right to board and inspect foreign vessels. Lastly, while the provisions of the Montego Bay Convention concerning illegal drug trafficking on the high seas appear to suggest that the issue was not a part of customary law when that Convention was signed, the Government have not shown that there has since been any constant practice on the part of the States capable of establishing the existence of a principle of customary international law generally authorising the intervention of any State which has reasonable grounds for believing that a ship flying the flag of another State is engaged in illicit traffic in drugs. 86. According to the Government, Article 110 of the Montego Bay Convention, which provides for a warship to be able to board a ship which refuses to fly its flag, is applicable in the instant case. 87. The Court notes that if at all, Article 110 would only be relevant to the present case in so far as paragraph 1 (d) refers to a ship “without nationality”. The case of a ship “refusing to show its flag” provided for in paragraph 1 (e) refers only to a ship that “is, in reality, of the same nationality as the warship”, which is not the case here. 88. Furthermore, as regards the nationality of the ship, the Court shares the view of the Chamber and the applicants that the Government’s arguments are based on a contradiction. It is an undisputed fact that the meeting of the frigate Lieutenant de vaisseau Le Hénaff and the Winner owed nothing to chance. The Winner was under the observation of the American, Spanish and Greek drug control agencies when the Central Office Against Illegal Drug Trafficking (“the OCRTIS”), which suspected it of transporting a large quantity of drugs for the European market, requested authorisation to intercept it. The ship’s nationality being known in fact as early as 7 June 2002, the French embassy requested Cambodia’s consent to the French authorities’ intervention; that agreement was given in a diplomatic note of 7 June 2002 and the Ministry of Defence in Paris was immediately informed. Thus, by 7 June 2002 at the latest the Winner had been precisely identified as a ship flying the Cambodian flag, as expressly stated in the diplomatic note sent by the Cambodian authorities. As to the frigate Lieutenant de vaisseau Le Hénaff, it had been at anchor in Brest harbour, and had already been assigned another mission off the African coast when, instead, it was specially instructed to set sail immediately to intercept the Winner. In order to carry out this clearly defined mission it took on board a French navy special forces team specialised in boarding vessels at sea, as well as three experts from the OCRTIS. 89. In view of these elements, the Government cannot reasonably argue that the situation provided for in Article 110 of the Montego Bay Convention, concerning the possibility for a warship to board a ship if it has reasonable grounds to suspect that that ship is without nationality (see paragraph 28 above), applies to the present case. The circumstances of the case do not support such an assertion. Moreover, the judgment of the Investigation Division of the Rennes Court of Appeal states quite plainly that the merchant ship spotted on 13 June 2002 at 6 a.m. was identified as the Winner (see paragraph 22 above). 90. Concerning the relevant French law, apart from the fact that its main purpose was to transpose the international treaties, and in particular the Vienna Convention, into domestic law, it cannot override the treaties concerned, or the principle of the exclusive jurisdiction of the flag State. Thus, as Cambodia was not a party to the conventions transposed into domestic law, and as the Winner was not flying the French flag and none of its crew members were French nationals – even assuming that the nationality of the crew members could be pleaded as an alternative to the principle of the flag State –, there were no grounds for French law to be applied. 91. The Court further notes that French law has since been amended: the reference limiting its scope to States Parties to the Vienna Convention has been deleted – in spite of the position of the Court of Cassation in the Medvedyev case – and the content of the coercion measures has been specified (see paragraphs 34-37 above). 92. Nor could it be argued that French law satisfied the general principle of legal certainty, as it failed to meet the requisite conditions of foreseeability and accessibility: it is unreasonable to contend that the crew of a ship on the high seas flying the Cambodian flag could have foreseen – even with appropriate advice – that they might fall under French jurisdiction in the circumstances of the case. Furthermore, although the purpose of the Montego Bay Convention was, inter alia, to codify or consolidate the customary law of the sea, its provisions concerning illicit traffic in narcotic drugs on the high seas – like those of the complementary Vienna Convention, organising international cooperation without making it mandatory – reflect a lack of consensus and of clear, agreed rules and practices in the matter at the international level. 93. The Court notes, however, that independently of the Montego Bay and Vienna Conventions, and of French law, Cambodia consented in a diplomatic note to the intervention of the French authorities, a fact which, according to the Government, attested to the existence of an ad hoc agreement between the two countries on the interception of the Winner and the subsequent events. 94. The question is therefore whether the diplomatic note of the Ministry of Foreign Affairs of Cambodia dated 7 June 2002 provided a legal basis for the impugned measures. 95. In the Court’s opinion, although the provisions of Article 108 § 2 of the Montego Bay Convention do not apply to the present case, as Cambodia has not ratified that instrument, they do not prevent States from envisaging other forms of collaboration to combat drug trafficking at sea. The United Nations Single Convention on Narcotic Drugs, 1961 (see paragraph 27 above, Article 35 (c)) and the Montego Bay and Vienna Conventions (see paragraphs 28-29 above, Article 108 § 1 and Article 17 § 1 respectively) all provide expressly for cooperation between States on this matter. Such cooperation may take various forms, particularly in view of the vague wording of the provisions of Article 17 § 4 (c), which merely refers to “appropriate action”, and give rise, for example, to regional agreements, like the Council of Europe Agreement of 31 January 1995 implementing Article 17 of the Vienna Convention (see paragraph 30 above) and the San José Agreement of 10 April 2003 on regional cooperation in the Caribbean (see paragraphs 31-33 above), or to the bilateral treaties referred to in Article 17 § 9 of the Vienna Convention. 96. Moreover, diplomatic notes are a source of international law comparable to a treaty or an agreement when they formalise an agreement between the authorities concerned, a common stance on a given matter or even, for example, the expression of a unilateral wish or commitment. 97. The Court accordingly considers, like the Government, that the diplomatic note issued by the Cambodian authorities on 7 June 2002 officialised Cambodia’s agreement to the interception of the Winner, Cambodia having the right to engage in cooperation with other countries outside the framework of the Montego Bay and Vienna Conventions. 98. However, the existence of an ad hoc agreement does not solve the problem of its scope, which it is for the Court to appreciate in order to determine whether or not the diplomatic note authorised the arrest and detention of the crew members on board the ship and their transfer to France. 99. On this point the Court observes first of all that the text of the diplomatic note mentions “the ship Winner, flying the Cambodian flag”, the sole object of the agreement, confirming the authorisation to intercept, inspect and take legal action against it (see paragraph 10 above). Evidently, therefore, the fate of the crew was not covered sufficiently clearly by the note and so it is not established that their deprivation of liberty was the subject of an agreement between the two States that could be considered to represent a “clearly defined law” within the meaning of the Court’s case ‑ law. As to the explanatory diplomatic note produced by the Cambodian authorities on 9 September 2008 in response to a request from the French authorities of 3 September 2008 and submitted by the respondent Government for the first time to the Grand Chamber, after the Chamber pronounced its finding of a violation of Article 5 § 1 of the Convention and more than six years after the events, the applicants having had no opportunity at the material time to familiarise themselves with the explanations given, the Court does not consider it decisive. 100. Secondly, the Court considers that the diplomatic note did not meet the “foreseeability” requirement either. Nor have the Government demonstrated the existence of any current and long-standing practice between Cambodia and France in the battle against drug trafficking at sea in respect of ships flying the Cambodian flag; on the contrary, the use of an ad hoc agreement by diplomatic note, in the absence of any permanent bilateral or multilateral treaty or agreement between the two States, attests to the exceptional, one-off nature of the cooperation measure adopted in this case. Added to the fact that Cambodia had not ratified the relevant conventions, this shows that the intervention of the French authorities on the basis of an ad hoc agreement cannot reasonably be said to have been “foreseeable” within the meaning of the Court’s case-law, even with the help of appropriate advice. In any event, the Court considers that the foreseeability, for an offender, of prosecution for drug trafficking should not be confused with the foreseeability of the law pleaded as the basis for the intervention. Otherwise, any activity considered criminal under domestic law would release the States from their obligation to pass laws having the requisite qualities, particularly with regard to Article 5 § 1 of the Convention and, in so doing, deprive that provision of its substance. 101. It is regrettable, in the Court’s view, that the international effort to combat drug trafficking on the high seas is not better coordinated bearing in mind the increasingly global dimension of the problem. The fact remains that when a flag State, like Cambodia in this case, is not a party to the Montego Bay or Vienna Conventions, the insufficiency of such legal instruments, for want of regional or bilateral initiatives, is of no real consequence. In fact, such initiatives are not always supported by the States in spite of the fact that they afford the possibility of acting within a clearly defined legal framework. In any event, for States that are not parties to the Montego Bay and Vienna Conventions one solution might be to conclude bilateral or multilateral agreements, like the San José Agreement of 2003, with other States. Having regard to the gravity and enormity of the problem posed by illegal drug trafficking, developments in public international law which embraced the principle that all States have jurisdiction as an exception to the law of the flag State would be a significant step in the fight against illegal trade in narcotics. This would bring international law on drug trafficking into line with what has already existed for many years now in respect of piracy. 102. In view of the above and of the fact that only a narrow interpretation is consistent with the aim of Article 5 § 1 of the Convention (see paragraph 78 above), the Court accordingly finds that the deprivation of liberty to which the applicants were subjected between the boarding of their ship and its arrival in Brest was not “lawful” within the meaning of Article 5 § 1, for lack of a legal basis of the requisite quality to satisfy the general principle of legal certainty. 103. There has, therefore, been a violation of Article 5 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 104. The applicants also complained that they had not been brought “promptly” before a judge or other officer authorised by law to exercise judicial power after their ship was intercepted. They relied on Article 5 § 3 of the Convention, which provides: “3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. The Chamber judgment 105. The Chamber found no violation of Article 5 § 3 of the Convention, considering that the instant case had a lot in common with the Rigopoulos case (cited above) and that, here too, it had not been materially possible to bring the applicants “physically” before a “legal authority” any sooner. Having regard to the evidence in its possession, the Government having produced no information concerning the exact details of the police custody in Brest and the relevant reports (see paragraph 64 of the judgment), it also found that two or three days in police custody after thirteen days at sea were justified under the circumstances. The Chamber considered that the duration of the deprivation of liberty suffered by the applicants was justified by “wholly exceptional circumstances”, in particular the time it inevitably took to get the Winner to France. B. The parties’ submissions before the Grand Chamber 1. The applicants 106. The applicants argued that the case-law of the Court has always emphasised the importance of the provisions of Article 5 § 3 of the Convention and the need for the Contracting States to have a legal framework that offers sufficient guarantees against arbitrary deprivation of liberty. They submitted that the “exceptional circumstances” found in the Rigopoulos case (cited above) had not been established in their case: inevitable duration of the sea voyage, deprivation of liberty under the supervision of a “judge or other officer authorised by law to exercise judicial power” within the meaning of Article 5 § 3 of the Convention and immediate presentation before a judge upon landing. 107. They contended that exceptional circumstances could justify failure to bring a person promptly before a judge only if the detention was supervised and controlled by a legal authority, which was not the case here. The applicants considered that the reasons given by the Chamber in its judgment (paragraph 68) were insufficient and left some important questions unanswered. They objected to the argument concerning “the time it inevitably took the Winner to reach France” in so far as they could have been repatriated on the French frigate instead of the Winner, which was in a deplorable state of repair. 108. The applicants further complained that after thirteen days of detention at sea they had been held in police custody for two or three days before being presented before a judge or other officer authorised by law to exercise judicial power, and finally all placed under investigation and remanded in custody, regardless of their degree of involvement in the traffic. 109. As well as disputing the fact that police custody helped to protect individual freedoms and the rights of the defence, because they had had no access to the case file and had been unable to consult a lawyer before the seventy-second hour, they complained that they had not been brought before the liberties and detention judge as soon as they arrived in Brest. On this point they noted that the interception had been planned for several weeks and the investigation opened no later than 24 June 2002: the two or three extra days in police custody had therefore been unnecessary. In view of the thirteen days’ deprivation of liberty on board the Winner, those two or three extra days were not in compliance with the requirement of promptness enshrined in Article 5 § 3. 110. In any event, the circumstances of the present case differed from the “exceptional circumstances” that justified the Rigopoulos decision. While noting that the Spanish authorities had acted legally in boarding a ship flying a Panamanian flag, Spain and Panama being Parties to the Vienna Convention of 1988, the applicants objected to the fact that their detention on the ship had not been under the supervision of a “judge or other officer authorised by law to exercise judicial power” but under that of the public prosecutor, who was not such an officer according to the Court’s case-law (see Schiesser, cited above; Huber v. Switzerland, 23 October 1990, Series A no. 188; and Brincat v. Italy, 26 November 1992, Series A no. 249-A), in particular because of his lack of independence vis ‑ à ‑ vis the executive. They maintained that the purely formal criterion relied on by the Government was ineffective in the light of the functional criterion developed by the Court in its case-law, as confirmed in the Chamber judgment. Thus, unlike the Spanish authorities in the Rigopoulos case, where the deprivation of liberty had been decided by the Central Investigating Court, an officer authorised by law to exercise judicial power within the meaning of Article 5 § 3 of the Convention, by means of a promptly issued, duly reasoned detention order, the French authorities had made no attempt to regularise the applicants’ situation. Yet their ship was not an “area outside the law”, especially considering that an investigating judge could have been contacted by radio, and the crew could have been informed of their rights and allowed to contact a lawyer and alert a family member. In addition to the resulting alleged violation of Article 5 § 3, the applicants, referring to the partially dissenting opinion expressed by three of the Chamber judges, pointed out that they had had to wait another two or three days to be brought before the liberties and detention judge. 2. The Government 111. The Government denied that the applicants had had to wait two or three days after arriving in Brest before they were brought before a judge or other officer authorised by law to exercise judicial power within the meaning of Article 5 § 3. They contended – producing the official reports for the first time before the Grand Chamber – that the applicants had in fact all been presented that very day, only hours after their arrival in Brest, to an investigating judge who had the power to order their release. They further argued that in any event the initial application to the Court concerned only the period of thirteen days it took to reroute the ship to France. 112. The Government reiterated that the notion of promptness had been clarified in the case of Brogan and Others v. the United Kingdom (29 November 1988, Series A no. 145-B), and confirmed recently in McKay (cited above, § 30). They contended, inter alia, that in the Rigopoulos case the Court had found that it was necessary to examine each case with reference to its particular characteristics in order to determine whether the authorities had complied with the requirement of promptness, while pointing out that it had been materially impossible to bring the applicant before the investigating judge any sooner and that the applicant had been presented to the investigating judge the day after his arrival on Spanish soil. 113. The Government also considered that in its McKay judgment the Court had accepted derogations from the principle of the automatic nature of the review. 114. Concerning the characteristics and powers of the officer concerned, the Government maintained that although the Court had found that a public prosecutor or other judicial officer appearing for the prosecution could not be considered a “judge” for the purposes of Article 5 § 3 (see Huber, cited above), the same could not be said of an investigating judge. Investigating judges were fully independent judges whose job was to seek evidence both for and against the accused party, without participating in the prosecution or the judgment of the cases they investigated. In France the investigating judge supervised all custodial measures taken in the cases under his responsibility – be it police custody or detention pending trial – and could terminate them at any time. Although he had to apply to the liberties and detention judge when contemplating remanding a suspect in custody, he had full power to release people or place them under court supervision. The Government pointed out that the Court had already ruled that the investigating judge fulfilled the conditions laid down in Article 5 § 3 (see A.C. v. France (dec.), no. 37547/97, 14 December 1999). 115. The Government affirmed that the applicants had been brought before the investigating judges, without having had to ask, the same day they arrived in Brest, as soon as had been possible. 116. Lastly, the Government considered that the public prosecutor was a legal authority independent of the executive, and that his supervision while the Winner was rerouted to Brest had provided the protection against arbitrariness which Article 5 of the Convention was meant to guarantee. C. The Court’s assessment 1. General principles 117. The Court reiterates that Article 5 of the Convention is in the first rank of the fundamental rights that protect the physical security of an individual, and that three strands in particular may be identified as running through the Court’s case-law: the exhaustive nature of the exceptions, which must be interpreted strictly and which do not allow for the broad range of justifications under other provisions (Articles 8 to 11 of the Convention in particular); the repeated emphasis on the lawfulness of the detention, procedurally and substantively, requiring scrupulous adherence to the rule of law; and the importance of the promptness or speediness of the requisite judicial controls under Article 5 §§ 3 and 4 (see McKay, cited above, § 30). 118. The Court also notes the importance of the guarantees afforded by Article 5 § 3 to an arrested person. The purpose of this provision is to ensure that arrested persons are physically brought before a judicial officer promptly. Such automatic expedited judicial scrutiny provides an important measure of protection against arbitrary behaviour, incommunicado detention and ill-treatment (see, among other authorities, Brogan and Others, cited above, § 58; Brannigan and McBride v. the United Kingdom, 26 May 1993, §§ 62-63, Series A no. 258-B; Aquilina v. Malta [GC], no. 25642/94, § 49, ECHR 1999-III; Dikme v. Turkey, no. 20869/92, § 66, ECHR 2000 ‑ VIII; and Öcalan, cited above, § 103). 119. Article 5 § 3, as part of this framework of guarantees, is structurally concerned with two separate matters: the early stages following an arrest, when an individual is taken into the power of the authorities, and the period pending any trial before a criminal court, during which the suspect may be detained or released with or without conditions. These two limbs confer distinct rights and are not on their face logically or temporally linked (see T.W. v. Malta [GC], no. 25644/94, § 49, 29 April 1999). 120. Taking the initial stage under the first limb, which is the only one at issue here, the Court’s case-law establishes that there must be protection, through judicial control, of an individual arrested or detained on suspicion of having committed a criminal offence. Such control serves to provide effective safeguards against the risk of ill-treatment, which is at its greatest in this early stage of detention, and against the abuse of powers bestowed on law enforcement officers or other authorities for what should be narrowly restricted purposes and exercisable strictly in accordance with prescribed procedures. The judicial control must satisfy the following requirements (see McKay, cited above, § 32): (a) Promptness 121. The judicial control on the first appearance of an arrested individual must above all be prompt, to allow detection of any ill-treatment and to keep to a minimum any unjustified interference with individual liberty. The strict time constraint imposed by this requirement leaves little flexibility in interpretation, otherwise there would be a serious weakening of a procedural guarantee to the detriment of the individual and the risk of impairing the very essence of the right protected by this provision (see Brogan and Others, cited above, § 62, where periods of four days and six hours in detention without appearance before a judge were held to be in violation of Article 5 § 3, even in the special context of terrorist investigations). (b) Automatic nature of the review 122. The review must be automatic and not depend on the application of the detained person; in this respect it must be distinguished from Article 5 § 4, which gives a detained person the right to apply for release. The automatic nature of the review is necessary to fulfil the purpose of that paragraph, as a person subjected to ill-treatment might be incapable of lodging an application asking for a judge to review their detention; the same might also be true of other vulnerable categories of arrested person, such as the mentally frail or those ignorant of the language of the judicial officer (see Aquilina, cited above). (c) The characteristics and powers of the judicial officer 123. Since Article 5 § 1 (c) forms a whole with Article 5 § 3, “competent legal authority” in paragraph 1 (c) is a synonym, of abbreviated form, for “judge or other officer authorised by law to exercise judicial power” in paragraph 3 (see, among other authorities, Lawless v. Ireland (no. 3), 1 July 1961, Series A no. 3, and Schiesser, cited above, § 29). 124. The judicial officer must offer the requisite guarantees of independence from the executive and the parties, which precludes his subsequent intervention in criminal proceedings on behalf of the prosecuting authority, and he or she must have the power to order release, after hearing the individual and reviewing the lawfulness of, and justification for, the arrest and detention (see, among many other authorities, Assenov and Others v. Bulgaria, 28 October 1998, §§ 146 and 149, Reports 1998-VIII). As regards the scope of that review, the formulation which has been at the basis of the Court’s long-established case-law dates back to the early Schiesser case (cited above, § 31): “In addition, under Article 5 para. 3 (art. 5-3), there is both a procedural and a substantive requirement. The procedural requirement places the ‘officer’ under the obligation of hearing himself the individual brought before him (see, mutatis mutandis, the above-mentioned Winterwerp judgment, p. 24, para. 60); the substantive requirement imposes on him the obligations of reviewing the circumstances militating for or against detention, of deciding, by reference to legal criteria, whether there are reasons to justify detention and of ordering release if there are no such reasons (above-mentioned Ireland v. the United Kingdom judgment, p. 76, para. 199).” Or, in other words, “Article 5 § 3 requires the judicial officer to consider the merits of the detention” (see T.W. v. Malta, and Aquilina, both cited above, § 41 and § 47 respectively). 125. The initial automatic review of arrest and detention accordingly must be capable of examining lawfulness issues and whether or not there is a reasonable suspicion that the arrested person has committed an offence; in other words, whether detention falls within the permitted exceptions set out in Article 5 § 1 (c). When the detention does not, or is unlawful, the judicial officer must then have the power to release (see McKay, cited above, § 40). 126. The Court has noted on several occasions that the investigation of terrorist offences undoubtedly presents the authorities with special problems (see Brogan and Others, cited above, § 61; Murray v. the United Kingdom, 28 October 1994, § 58, Series A no. 300-A; and Aksoy v. Turkey, 18 December 1996, § 78, Reports 1996-VI). This does not mean, however, that the investigating authorities have carte blanche under Article 5 to arrest suspects for questioning, free from effective control by the domestic courts and, ultimately, by the Convention supervisory institutions, whenever they choose to assert that terrorism is involved (see Öcalan, cited above, § 104). The same approach applies to the fight against drug trafficking on the high seas, the importance of which the Court has acknowledged in paragraph 81 above and which also undoubtedly presents special problems. 2. Application of the above principles 127. The Court notes that the arrest and detention of the applicants began with the interception of the ship on the high seas on 13 June 2002. The applicants were not placed in police custody until 26 June 2002, after arriving in Brest. Before the Grand Chamber, and for the first time since the proceedings began – which the Court can only find regrettable – the Government submitted substantiated information concerning the presentation of the applicants, at the end of the day, to the investigating judges in charge of the case (see paragraph 19 above). 128. The fact remains that the applicants were not brought before the investigating judges – who may certainly be described as “judge[s] or other officer[s] authorised by law to exercise judicial power” within the meaning of Article 5 § 3 of the Convention – until thirteen days after their arrest. 129. The Court points out that in the Brogan and Others case it held that a period of detention in police custody amounting to four days and six hours without judicial review fell outside the strict constraints permitted by Article 5 § 3, even though it was designed to protect the community as a whole from terrorism (see Brogan and Others, cited above, § 62). It also found a period of seven days without being brought before a judge incompatible with Article 5 § 3 (see Öcalan, cited above, §§ 104-05). 130. The Court observes, however, that it did accept, in the Rigopoulos decision (cited above), which concerned the interception on the high seas by the Spanish customs authorities, in the context of an international drug trafficking investigation, of a ship flying the Panamanian flag and the detention of its crew for as long as it took to escort their ship to a Spanish port, that a period of sixteen days was not incompatible with the notion of “promptness” required under Article 5 § 3 of the Convention, in view of the existence of “wholly exceptional circumstances” that justified such a delay. In its decision, the Court noted that the distance to be covered was “considerable” (the ship was 5,500 km from Spanish territory when it was intercepted), and that a forty-three-hour delay caused by resistance put up by the ship’s crew “could not be attributed to the Spanish authorities”. It concluded that it had been “materially impossible to bring the applicant physically before the investigating judge any sooner”, while taking into account the fact that once he had arrived on Spanish soil the applicant had been immediately transferred to Madrid by air and brought before the judicial authority on the following day. Lastly, the Court considered “unrealistic” the applicant’s suggestion that, under an agreement between Spain and the United Kingdom to prevent illicit traffic in narcotic drugs, instead of being diverted to Spain the ship could have been taken to Ascension Island, which was approximately 1,600 km from where it was intercepted. 131. In the present case, the Court notes that at the time of its interception the Winner was also on the high seas, off the coast of the Cape Verde islands, and therefore a long way from the French coast, comparable to the distance in the Rigopoulos case. There was nothing to indicate that it took any longer than necessary to escort it to France, particularly in view of the weather conditions and the poor state of repair of the Winner, which made it impossible for it to travel any faster. In addition, the applicants did not claim that they could have been handed over to the authorities of a country nearer than France, where they could have been brought promptly before a judicial authority. As to the idea of transferring them to a French naval vessel to make the journey faster, it is not for the Court to assess the feasibility of such an operation in the circumstances of the case, particularly as it has not been established that the frigate was capable of accommodating all the crew members in sufficiently safe conditions. 132. The Court notes, lastly, that the applicants were placed in police custody at 8.45 a.m. on 26 June 2002 and effectively brought before an investigating judge at the police station in Brest, according to the reports produced by the Government, between 5.05 and 5.45 p.m. in the case of the first judge and at undocumented times in the case of the second judge (see paragraph 19 above), it being understood that the applicants do not dispute the fact that the meetings with the second judge took place at about the same time. This means that after arriving in France the applicants spent only about eight or nine hours in police custody before they were brought before a judge. 133. That period of eight or nine hours was perfectly compatible with the concept of “brought promptly” enshrined in Article 5 § 3 of the Convention and in the Court’s case-law. 134. Accordingly, there has been no violation of Article 5 § 3 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 135. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 136. The applicants claimed 10,000 euros (EUR) each in respect of non ‑ pecuniary damage. 137. The Government did not express an opinion on this matter. 138. Ruling on an equitable basis as required by Article 41 of the Convention, the Court awards each of the applicants EUR 5,000 under this head. B. Costs and expenses 139. The applicants claimed EUR 10,000 for the costs and expenses incurred before the Court. They submitted two requests for payment on account, dated 24 April and 6 December 2008, each for EUR 5,000, concerning the successive proceedings before the Chamber and the Grand Chamber of the Court. 140. The Government did not comment. 141. The Court notes that the applicants have produced vouchers in support of their claim. It considers reasonable the sum of EUR 10,000 claimed by the applicants and awards it to them jointly. C. Default interest 142. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 5 § 1 (right to liberty and security) and no violation of Article 5 § 3 (right to be brought promptly before a judge or other officer authorised by the law to exercise judicial power) of the Convention in respect of the applicants. It noted in particular that the “judicial officer” must offer the requisite guarantees of independence from the executive and the parties, which precludes his subsequent intervention in criminal proceedings on behalf of the prosecuting authority, and he or she must have the power to order release, after hearing the individual and reviewing the lawfulness of, and justification for, the arrest and detention. |
571 | Cases in which the Court found a violation of Article 4 of Protocol No. 4 to the Convention | RELEVANT LEGAL FRAMEWORK AND PRACTICE Domestic law 17. The relevant parts of section 5(1) of Act no. LXXXIX of 2007 on State Borders (hereinafter “the State Borders Act”) reads as follows: “(1) In accordance with this [Act], it shall be possible to use, in Hungarian territory, a 60-metre strip [of land] from the external borderline, as defined in Article 2(2) of the Schengen Borders Code, or from the signs demarcating the border, in order to build, establish or operate facilities for maintaining order at the border – including those referred to in section 15/A – and to carry out tasks relating to defence and national security, disaster management, border surveillance, asylum and immigration. (1a) The police may, in Hungarian territory, apprehend foreign nationals staying illegally in Hungarian territory, within an 8-km strip [of land] from the external borderline, as defined in Article 2(2) of the Schengen Borders Code, or from the signs demarcating the border, and escort them through the gate of the nearest facility referred to in [subsection] 1, except where they are suspected of having committed an offence.” 18. Section 15/A of the State Borders Act provides as follows: “(1) A transit zone may be created in the area referred to in section 5(1) to serve as a temporary place of stay for persons applying for asylum or subsidiary protection and as the place where asylum and migration control procedures take place and which is equipped with the facilities necessary for that purpose. (2) The applicant for international protection present in the transit zone may enter Hungarian territory if the competent asylum authority takes a decision granting international protection; the conditions for applying the general rules governing the asylum procedure are met, or in the cases specified in section 71/A(4) and (5) of the Asylum Act. (3) In the transit zone, public bodies shall perform their duties and exercise their powers in accordance with the legislative provisions applicable to them.” 19. Section 71/A of Act no. LXXX of 2007 on Asylum (hereinafter “the Asylum Act”) provides: “(1) If an applicant lodges his or her application before admission to the territory of Hungary or after being intercepted within 8 km of the external borderline as defined by [Article 2(2)] of the Schengen [Borders] Code or of the [signs demarcating] the State border and escorted through the nearest gate in the security border fence facility, in a transit zone defined by the [State Borders Act], the provisions of this chapter [on the procedure for recognition as a refugee or a beneficiary of subsidiary protection] shall apply [accordingly, with the differences specified in this section]. (2) In the border procedure, the applicant shall not have the rights stipulated in section 5(1)(a) and (c) [the right to stay in Hungarian territory and to work under certain conditions]. (3) The asylum authority shall decide on the admissibility of an application as a priority and no later than eight days after it is made. The asylum authority shall promptly communicate the decision adopted in the procedure. (4) If a decision has not been taken within four weeks, the immigration authority shall grant entry in accordance with the provisions of the law. (5) If the application is not inadmissible, the immigration authority shall grant entry in accordance with the provisions of the law. (6) If the applicant has been granted entry to the territory of Hungary, the asylum authority shall conduct the procedure applying the general rules. (7) The rules applicable to the procedure in the transit zone shall not apply to persons requiring special treatment.” 20. Following a request for information by the Hungarian Helsinki Committee, the Chief Commissioner of the National Police explained on 20 October 2016 that in the course of applying the measure under section 5 of the State Borders Act, the police informed the persons concerned of the unlawful nature of their entry to Hungarian territory, the purpose of the measure under section 5 and the possibility of applying for asylum in the transit zones, and escorted them through the closest border gate to the other side of the border fence. Furthermore, the police did not register any personal data in the course of the procedure but could take pictures and recordings. European Union law and practice 21. As regards European Union law and practice, see N.D. and N.T. v. Spain ([GC], nos. 8675/15 and 8697/15, §§ 41-43, 45-48 and 50-51, 13 February 2020) and the case-law summarised in Khlaifia and Others v. Italy ([GC], no. 16483/12, §§ 42-45, 15 December 2016). 22. The relevant provisions of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third ‑ country nationals (“the Return Directive”) state as follows: Article 3 - Definitions “For the purpose of this Directive the following definitions shall apply: ... 5. ‘removal’ means the enforcement of the obligation to return, namely the physical transportation out of the Member State; ...” Article 5 - Non-refoulement, best interests of the child, family life and state of health “When implementing this Directive, Member States shall take due account of: (a) the best interests of the child; (b) family life; (c) the state of health of the third-country national concerned and respect the principle of non-refoulement.” Article 6 - Return decision “1. Member States shall issue a return decision to any third-country national staying illegally on their territory, without prejudice to the exceptions referred to in paragraphs 2 to 5. ...” Article 12 - Form “1. Return decisions and, if issued, entry-ban decisions and decisions on removal shall be issued in writing and give reasons in fact and in law as well as information about available legal remedies. The information on reasons in fact may be limited where national law allows for the right to information to be restricted, in particular in order to safeguard national security, defence, public security and for the prevention, investigation, detection and prosecution of criminal offences. ...” Article 13 - Remedies “1. The third-country national concerned shall be afforded an effective remedy to appeal against or seek review of decisions related to return, as referred to in Article 12(1), before a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence. ...” 23. The relevant provisions of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (“the Asylum Procedures Directive”) read as follows: Article 3 - Scope “1. This Directive shall apply to all applications for international protection made in the territory, including at the border, in the territorial waters or in the transit zones of the Member States, and to the withdrawal of international protection. ...” Article 6 - Access to the procedure “1. When a person makes an application for international protection to an authority competent under national law for registering such applications, the registration shall take place no later than three working days after the application is made. If the application for international protection is made to other authorities which are likely to receive such applications, but not competent for the registration under national law, Member States shall ensure that the registration shall take place no later than six working days after the application is made. Member States shall ensure that those other authorities which are likely to receive applications for international protection such as the police, border guards, immigration authorities and personnel of detention facilities have the relevant information and that their personnel receive the necessary level of training which is appropriate to their tasks and responsibilities and instructions to inform applicants as to where and how applications for international protection may be lodged. 2. Member States shall ensure that a person who has made an application for international protection has an effective opportunity to lodge it as soon as possible. Where the applicant does not lodge his or her application, Member States may apply Article 28 accordingly. 3. Without prejudice to paragraph 2, Member States may require that applications for international protection be lodged in person and/or at a designated place. 4. Notwithstanding paragraph 3, an application for international protection shall be deemed to have been lodged once a form submitted by the applicant or, where provided for in national law, an official report, has reached the competent authorities of the Member State concerned. 5. Where simultaneous applications for international protection by a large number of third-country nationals or stateless persons make it very difficult in practice to respect the time limit laid down in paragraph 1, Member States may provide for that time limit to be extended to 10 working days.” 24. Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) (“the Reception Conditions Directive”) applies to all third-country nationals and stateless persons who make an application for international protection on the territory, including at the border, in the territorial waters or in the transit zones of a Member State, as long as they are allowed to remain on the territory as applicants, as well as to family members, if they are covered by such application for international protection according to national law. It governs, among other things, residence and freedom of movement, and the conditions under which the applicants may be detained. 25. After repeatedly expressing its concerns as to the compatibility of Hungarian asylum legislation with EU law, the European Commission, on 21 December 2018, brought an action for failure to fulfil obligations before the Court of Justice of the European Union (“CJEU”), seeking a declaration that part of the Hungarian asylum and border control legislation infringed certain provisions of Directives 2008/115/EC, 2013/32/EU and 2013/33/EU. In its action, the Commission criticised Hungary for, in particular, having restricted access to the international protection procedure, established a system of systematic detention of applicants for that protection and forcibly deported, to a strip of land at the border, illegally staying third-country nationals, without observing the guarantees provided for in Directive 2008/115/EC. The CJEU, sitting as the Grand Chamber, assessed Hungary’s compliance with the directives with respect to the period up to 8 February 2018. On 17 December 2020 it upheld most of the Commission’s action (C ‑ 808/18). In addition to the legislation in force at the time of the applicant’s removal in the present case, the CJEU’s judgment also takes account of the legislative changes introduced in 2017, in particular Act no. XX of 2017 on amending certain laws related to the strengthening of the procedure conducted in the guarded border area. The following findings of the CJEU are of particular relevance to the present case: “ 118 It follows that the Commission has proved, in a sufficiently documented and detailed manner, the existence, at the end of the period laid down in the reasoned opinion, namely 8 February 2018, of a consistent and generalised administrative practice of the Hungarian authorities aimed at limiting access to the transit zones of Röszke and Tompa so systematically and drastically that third-country nationals or stateless persons who, arriving from Serbia, wished to access, in Hungary, the international protection procedure, in practice were confronted with the virtual impossibility of making an application for international protection in Hungary. ... 121 ... it should be noted, first of all, that it is true that that Member State disputes the fact that the administrative instructions sought to limit the daily number of applications for international protection that could be made in each of the transit zones of Röszke and Tompa. 122 However, in addition to the fact that that assertion is formally contradicted by the reports referred to in paragraphs 115 and 116 of the present judgment, Hungary has not explained, to the requisite legal standard, the reason why, in the presumed absence of such instructions, waiting lists – the existence of which it acknowledges – had been drawn up in order to establish the order in which persons situated in Serbia, in the immediate vicinity of the transit zones of Röszke and Tompa, and wishing to make an application for international protection in one of those zones, could enter them. 123 In that regard, even if, as Hungary contends, the Hungarian authorities did not participate in the drawing up of those lists or influence the order of access to the transit zones thus established by them, the fact remains that the very existence of the lists has to be seen as the unavoidable consequence of the practice identified in paragraph 118 of the present judgment. 124 Moreover, Hungary’s argument that the gradual dissipation of the long queues at the entrance of those transit zones proves that there is no restriction on entry into those same zones cannot succeed, either. 125 After all, it is undisputed that there is no infrastructure available on the strip of land separating the Serbian-Hungarian border from the entry gate of the transit zones of Röszke and Tompa, meaning that it is extremely difficult to remain there for a long period of time. Furthermore, as the Commission has rightly pointed out, it can be inferred from the reports annexed to its application that the length of the queues at the entrance of each of the transit zones has decreased as from the date on which the waiting lists, mentioned in paragraph 122 of the present judgment, appeared, with only the persons placed in a favourable position on those lists being taken, by the Serbian authorities, to the strip of land separating the Serbian-Hungarian border from the entry gate of the transit zone concerned, on the eve of the date prescribed for those persons to enter that transit zone. 126 It follows that the dissipation of the long queues at the entrance of the transit zones of Röszke and Tompa cannot call into question the finding that the Hungarian authorities decided to limit access to those zones drastically. 127 Lastly, although, as Hungary recalls, it is indeed for Member States to ensure, inter alia, that external borders are crossed legally, in accordance with Regulation 2016/399, compliance with such an obligation cannot, however, justify the Member States’ infringement of Article 6 of Directive 2013/32. 128 It follows from all the foregoing considerations that Hungary has failed to fulfil its obligations under Article 6 of Directive 2013/32, read in conjunction with Article 3 thereof, in providing that applications for international protection from third-country nationals or stateless persons who, arriving from Serbia, wish to access, in its territory, the international protection procedure, may be made only in the transit zones of Röszke and Tompa, while adopting a consistent and generalised administrative practice drastically limiting the number of applicants authorised to enter those transit zones daily. ... 254 In the case at hand, first, it should be noted that Hungary does not dispute that, under [section 5(1b) of the State Borders Act], third-country nationals staying illegally in its territory may be subject to forcible deportation beyond the border fence, without prior compliance with the procedures and safeguards provided for in Article 5, Article 6(1), Article 12(1) and Article 13(1) of Directive 2008/115. In that regard, it must be stated that the safeguards surrounding the intervention of the police services, put forward by Hungary and summarised in paragraph 240 of the present judgment, clearly cannot be regarded as corresponding to the safeguards provided for in Directive 2008/115. 255 Second, contrary to what Hungary contends, the forced deportation of an illegally staying third-country national beyond the border fence erected in its territory must be treated in the same way as a removal from that territory. 256 While it is true that, according to Article 3(5) of Directive 2008/115, removal means the physical transportation out of the Member State in enforcement of an obligation to return, the fact remains that the safeguards surrounding the return and removal procedures provided for in that directive would be deprived of their effectiveness if a Member State could dispense with them, even if it forcibly displaced a third-country national, which is, in practice, equivalent to transporting him or her physically outside its territory. 257 Hungary acknowledges that the space between the border fence – beyond which illegally staying third-country nationals may be forcibly deported – and the Serbian-Hungarian border is merely a narrow strip of land devoid of any infrastructure. After having been forcibly deported by the Hungarian police to that narrow strip of land, the third-country national therefore has no choice other than to leave Hungarian territory and go to Serbia in order to be housed and fed. 258 In that regard, it should be noted that, contrary to what Hungary submits, that national does not have the effective possibility of entering, from that strip of land, one of the two transit zones of Röszke and Tompa to make an application for international protection there. 259 As has been noted in paragraph 128 of the present judgment, there was, at least until the end of the period laid down in the reasoned opinion issued by the Commission to Hungary [8 February 2018], a consistent and generalised practice of the Hungarian authorities consisting in drastically reducing access to those transit zones which rendered completely illusory the possibility, for an illegally staying third-country national forcibly deported beyond the border fence, of entering one of those transit areas at short notice. ... 266 It follows from all the foregoing considerations that, in allowing the removal of all third-country nationals staying illegally in its national territory, with the exception of those of them who are suspected of having committed an offence, without observing the procedures and safeguards laid down in Article 5, Article 6(1), Article 12(1) and Article 13(1) of Directive 2008/115, Hungary has failed to fulfil its obligations under those provisions.” 26. On 27 January 2021 Frontex, the European Border and Coast Guard Agency, announced that it had suspended all its operational activities on the ground in Hungary until the latter implemented the CJEU’s above judgment. Prior to that, on 14 October 2016, the Fundamental Rights Officer of Frontex also expressed concerns about the potential human rights violations related to the migration policies at the Hungarian border (FRO observations, Situation at the Hungarian-Serbian border, 2016). The situation was described as follows: “The 8-km rule, which allows Hungarian border guards to send migrants stopped within 8 km of the Serbian border directly back to Serbia without any registration or opportunity to apply for international protection, poses serious risks to the right to asylum (Art. 18 [of the EU Charter on Fundamental Rights]), the prohibition of non ‑ refoulment (Art. 19) as Serbia is not a safe country of asylum according to UNHCR; and the prohibition against collective expulsions (Art. 19). The coercive tactics (e.g., beatings, dog bites, pepper spraying) allegedly used to enforce the 8-km rule have led to incidents that jeopardize the right to human dignity (Art. 1); the right to life (Art. 2); the right to the integrity of the person (Art. 3); and the prohibition of inhuman or degrading treatment (Art. 4). Hungary’s entry limit of 30 asylum-seekers per day impedes the right to asylum (Art. 19) of those forced to wait in Serbia, in particular for vulnerable groups for whom no prioritization system exists. Moreover, the dire humanitarian situation on the Serbian side can negatively impact the right to human dignity (Art. 1) and the rights of the child (Art. 24).” COuNCIL OF EUROPE DOCUMENTS 27. The relevant Council of Europe documents are cited in N.D. and N.T. (cited above, §§ 53, 54 and 59). 28. In a report (SG/Inf(2017)33) dated 13 October 2017 of the fact ‑ finding mission in June 2017 by Ambassador Tomáš Boček, Special Representative of the Secretary General of the Council of Europe on Migration and Refugees, the following observations were made concerning Serbia and the Röszke and Tompa transit zones in Hungary: “Almost every migrant we have met in the asylum and reception centres that we visited in Serbia complained about the long waiting time, in most of the cases lasting for months, before his/her turn on “the list for Hungary” would come up. ... It is my understanding that the waiting list for entry into Hungary is an informal practical tool that governs the migration flow from Serbia into Hungary. The authorities of the two countries do not have formal competence over it, do not play any formal role in its compilation and do not formally communicate with each other on any aspect related to this list. However, several discussions led me to conclude that staff members of the Serbian Commissariat for Refugees and Migration are involved informally in the selection of community leaders as well as in including names in the waiting list. Several people have reported to us that the information about their place on this list is communicated to them by Commissariat staff. There were also several allegations made by migrants and refugees that they had had to pay bribes to be included in or ranked higher on the waiting list. I have also heard that migrants and refugees who had not been able to pay the required fee were ranked further down the list or that their names disappeared completely from it. Despite the lack of any official status, the waiting list for admission into Hungary de facto determines the amount of time that migrants and refugees actually spend in asylum and reception centres in Serbia, which in most of the cases is several months ... ... Also, the level of informality and the lack of transparency with which this waiting list is compiled and handled create a lot of suspicion that corruption is involved. Many migrants and refugees prefer dealing with smugglers to waiting for long periods of time until their turn on the list comes up. Hence, the waiting list should be seen as one of the many aspects contributing to a favourable environment for smuggling migrants and refugees in both Serbia and Hungary. ... Pushbacks of migrants and refugees by competent authorities without acknowledging and assessing their asylum claims raise concerns regarding the respect of the principle of non-refoulement, which requires that states refrain from removing asylum-seekers without an individual assessment of their cases. ... Due to the quotas restricting admission into Röszke and Tompa, many migrants and refugees try to enter Hungary illegally ... However, during a state of crisis caused by mass migration declared by the government, asylum applications can only be submitted in the transit zones. Migrants and refugees who have crossed into Hungary illegally and who are apprehended are rarely taken to these zones. During our visit in Serbia, notably in the reception centres of Sombor and Obrenovac, we met several persons, including unaccompanied children, who alleged that they had been apprehended by Hungarian police within Hungarian territory and, thereafter, returned to Serbia without passing through the transit zones. They alleged that violence had been used against them by the police; and they had been beaten or attacked with dogs. ... While it is true that, generally speaking, the objective of migrants and refugees who entered Hungary illegally is only to transit through Hungary towards their countries of destination, it is clear that, in practice, they do not have a real opportunity to express their intention to seek asylum in Hungarian territory and to access the asylum procedure.” OTHER INTERNATIONAL MATERIALS 29. The relevant international instruments and reports are summarised in N.D. and N.T. (cited above, §§ 62-67). 30. In May 2016 the Office of the United Nations High Commissioner for Refugees (UNHCR) issued its observations on restrictive legal measures and subsequent practice implemented between July 2015 and March 2016 in Hungary concerning refugees and asylum-seekers. It noted, inter alia, the following: “22. After the transit zones became operational on 15 September 2015, the Ministry of Interior informed UNHCR that a maximum of 10 asylum-seekers would be permitted to enter each transit zone at any one time, and a maximum of 100 asylum ‑ seekers a day per zone would be processed by the OIN between 06:00 and 22:00. On 21 February 2016, the processing capacity was reduced to 50 people a day and, on 22 March, following the introduction of level 2 security level in the whole country, it was further reduced to 30 people a day. However, such ceilings may be incompatible with Hungary’s obligations under EU law. The EU Asylum Procedures Directive (recast) makes express provision to ensure that basic principles and guarantees are respected in the event large numbers of asylum-seekers arrive and need to be dealt with under border procedures. 23. In practice, OIN did not register 100 asylum applications per day. Between 15 and 19 September 2015, several thousand individuals arrived at Röszke wanting to enter Hungary and they were made to camp out in front of the entry door to the transit zone without water, food or shelter. Many left for Croatia after waiting for two days or more and only 352 individuals were allowed to enter and submit asylum applications. After 22 September 2015, UNHCR observed that single males and persons who were not visibly in need of special treatment were actively discouraged from approaching the transit zones. Official – government contracted – interpreters, told them that their asylum applications would be denied. Vulnerable people are not systematically prioritized and the lack of a clear admission system leads to frustration among the asylum-seekers. Families with small children have to wait outside the transit zone with no shelter, water or food. They are not given information on the procedures and interpretation is not always available.” 31. In August 2016 UNHCR, in Europe’s Refugee Emergency Response Update #30, reported the following concerning the pre-transit zone areas at Röszke and Tompa: “Serbian authorities, UNHCR, partners and refugee community leaders continued to encourage asylum-seekers to move to governmental centres instead of camping in open spaces near the Hungarian border. Consequently, the number of asylum-seekers staying outdoors on the Serbian side in front of the Hungarian transit zones at Horgos and Kelebija border-crossings decreased to 280 at the end of the month, compared to its peak of over 1,000 in mid-July. Hungarian authorities continued to admit around 30 asylum-seekers daily through the transit zones in Horgoš and Kelebija [these are the transit zones of Röszke and Tompa]. At the same time, in August, UNHCR and partners encountered over 550 individuals claiming they were pushed back from Hungary without being allowed access to asylum procedures and protection in Hungary. Among those, several cases made serious allegations of use of force during the [pushbacks]. UNHCR remains deeply concerned about the restrictive law, increased reports of violence, and a deterioration of the situation at border with Serbia. Nearly 800 asylum-seekers and migrants entered Hungary in August out of which the police apprehended 345 people inside the country for crossing the border irregularly, while 418 people entered through the transit zones on the border with Serbia. Since the new border regulations came into force on 5 July 2016, allowing the police to return to the other side of the border fence people intercepted within 8 km from the border, the police reported that 8,201 people have been prevented from accessing the Hungarian territory. A total of 4,700 people were blocked entry upon attempting to cross the border irregularly and 3,501 were intercepted inside Hungary and escorted back to the other side of the border fence. ... By the end of August, around 260 asylum-seekers and migrants (170 in Röszke and 80 in Tompa) were in the waiting areas without adequate shelter, awaiting admission into the transit zones while the daily admission rate remained 15 people per day in each transit zone. The average waiting time for families and UACs ranged between 30-70 days in Röszke, 35-50 days in Tompa and for single men up to 90 days. Therefore, many single men are resorting to smugglers to cross the border irregularly.” THE LAW PRELIMINARY issues 32. The Government argued that the applicant had failed to prove that he had ever personally suffered the measure complained of. In particular, he had not applied for asylum in Hungary and had therefore not shown even a likelihood that he had been a victim of a violation within the meaning of Article 34 of the Convention. There was also no indication that had been sent back to Pakistan as a result of chain refoulement. 33. They further argued that the medical certificate issued in Serbian and submitted by the applicant did not contain his name. 34. The applicant argued that the evidence obtained from the authorities and in the criminal investigation file (see paragraph 15 above) supported beyond reasonable doubt his allegation that he, together with eleven other men, had been escorted by Hungarian officers from Hungary through the border fence towards Serbia on 12 August 2016 on the basis of section 5 of the State Borders Act. He further submitted that his name on the medical report had been misspelled. 35. According to the Court’s case-law, the distribution of the burden of proof and the level of persuasion necessary for reaching a particular conclusion are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake (see, among other authorities, El Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 151). In the context of the expulsion of migrants, the Court has previously stated that where the absence of identification and personalised treatment by the authorities of the respondent State is at the very core of an applicant’s complaint, it is essential to ascertain whether the applicant has furnished prima facie evidence in support of his or her version of events. If that is the case, the burden of proof should shift to the Government ( see N.D. and N.T., cited above, § 85). 36. In the present case, the Court notes that the applicant’s apprehension and escort to the external side of the border fence has been confirmed by the video footage provided by the Hungarian police, as well other information from official sources (see paragraphs 9, 10, 12 and 15 above). While it is true that the applicant changed his statement as regards his return to Pakistan following the events complained of, he himself acknowledged and corrected the initial misinformation (see paragraph 16 above). Having regard to the fact that his return to Pakistan is not the subject-matter of the present case, the Court finds that this element alone cannot be considered sufficient to undermine the credibility of his account concerning the measures taken against him on 12 August 2016. 37. In such circumstances, the Court considers that the applicant has presented sufficient evidence of being apprehended and escorted to the external side of the border fence, which has not been refuted by the Government. 38. In so far as the Government argued that the applicant had not lodged an application for international protection in Hungary, the Court observes that, in fact, he has not claimed to have lodged such an application. On the contrary, he complained of his inability to do so because of the limited access to the Röszke and Tompa transit zones. The Court notes that the question of whether or to what extent he was prevented from making his application for international protection in Hungary is closely linked and should thus be joined to the examination of the merits of his complaint under Article 4 of Protocol No. 4. 39. Lastly, the Government also pointed out that the spelling of the name on the medical report which allegedly concerned the applicant’s examination in the hospital in Subotica did not correspond to that of the applicant (see paragraph 11 above). The Court notes that the present case concerns complaints under Article 4 of Protocol No. 4 and Article 13, and that the applicant lodged a separate application concerning his alleged ill ‑ treatment by the Hungarian police in which he relied on Article 3 of the Convention. It is therefore unnecessary to establish in the present case whether the applicant suffered injuries at the hands of the Hungarian police. 40. In conclusion, the Court finds it sufficiently established that the applicant was apprehended and escorted to the external side of the border fence on 12 August 2016. As regards the Government’s objection of lack of victim status on account of the fact that the applicant did not lodge an application for international protection, the Court joins it to the examination of the merits of the complaint under Article 4 of Protocol No. 4. ALLEGED VIOLATION OF ARTICLE 4 of Protocol No. 4 to THE CONVENTION 41. The applicant complained that he had been part of a collective expulsion, in violation of Article 4 of Protocol No. 4 to the Convention, which reads as follows: “Collective expulsion of aliens is prohibited.” AdmissibilityThe parties’ arguments The parties’ arguments The parties’ arguments 42. The Government argued that the applicant’s complaint fell outside the ambit of Article 4 of Protocol No. 4, since the escort measure did not amount to either collective expulsion or expulsion in general, given that it was made to Hungarian territory and not Serbian territory. They emphasised that, under the relevant provision of the State Borders Act, those intercepted were escorted through the nearest gate in the temporary security border fence to the other side of the border fence situated in the direction of Serbia but in Hungarian territory. Although their “functional jurisdiction” in this border zone was limited on account of EU law concerning the external borders of the Schengen area, it was still Hungarian territory. People escorted through the gate were in a position to freely decide whether to apply for asylum in the transit zone or leave Hungarian territory. They could apply for asylum after a temporary return to Serbia, which at the time had been common practice. In support of their argument that the applicant’s complaint was incompatible ratione materiae with the Convention, the Government also submitted that “expulsion” carried with it an entry ban for a specific period, whereas the escort measure did not have such a legal consequence. 43. The applicant argued that the “apprehension and escort” measure to which he had been subjected fell within the meaning of “collective expulsion”. In his view, the question of whether the external side of the fence to which he had been made to go was or was not part of Hungarian territory was irrelevant to the resolution of his case. The relevant question was whether he had had any practically feasible opportunity of accessing the Hungarian authorities and asylum procedure from the place to which he had been escorted. Any other view would make Article 4 of Protocol No. 4 devoid of its purpose in circumstances such as those in the present case. It was of particular importance that he had not been escorted to any of the transit zones with a view of having his asylum claim, based on Articles 2 and 3 of the Convention, examined. When attempting to reach any of the transit zones, he had had to enter Serbia irregularly. His return had thus been de facto expulsion to Serbia or at least to the so-called “no man’s land” between the two countries. 44. The applicant further submitted that the classification of the measure under domestic law was irrelevant and that even under domestic law, not all expulsion decisions carried an entry ban. The Court’s assessment 45. In order to determine whether Article 4 of Protocol No. 4 is applicable, the Court must seek to establish whether the Hungarian authorities subjected the applicant to “expulsion” within the meaning of that provision. 46. The Court refers to the general principles summarised in M.K. and Others v. Poland (nos. 40503/17 and 2 others, §§ 197-200, 23 July 2020) and reiterates that it has interpreted the term “expulsion” in the generic meaning in current use (“to drive away from a place”) (see Khlaifia and Others, cited above, § 243, and Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 174, ECHR 2012), as referring to any forcible removal of an alien from a State’s territory, irrespective of the lawfulness of the person’s stay, the length of time he or she has spent in the territory, the location in which he or she was apprehended, his or her status as a migrant or an asylum-seeker and his or her conduct when crossing the border (see N.D. and N.T ., cited above, § 185). It has also applied Article 4 of Protocol No. 4 to those who were apprehended in an attempt to cross a national border by land and were immediately removed from the State’s territory by border guards (ibid., § 187). 47. Turning to the present case, the Court observes that the applicant, together with eleven other Pakistani nationals, entered Hungary in an unauthorised manner by cutting a hole in the border fence between Hungary and Serbia. He was intercepted some hours later when resting in a field. Together with the eleven other men, he was subjected to the “apprehension and escort” measure under section 5(1a) of the State Borders Act. The latter stipulated that within 8 km of the State border the police could intercept foreign persons unlawfully staying in Hungarian territory and escort them through the nearest gate in the border fence. After being removed to the external side of the border fence, the applicant, who had been injured, went to a reception centre in Subotica, Serbia, and from there was taken to a nearby hospital. 48. Referring to the principles established in its case-law (see paragraph 46 above), the Court finds that the fact that the applicant entered Hungary irregularly and was apprehended within hours of crossing the border and possibly in its vicinity do not preclude the applicability of Article 4 of Protocol No. 4. Moreover, as regards the Government’s argument concerning the nature of the escort measure and its legal consequences (see paragraph 42 above), it is noted that Article 4 of Protocol No. 4 may apply even if the measure in question is not classified as “expulsion” in domestic law (see M.K. and Others, § 198, and Khlaifia and Others, §§ 243 and 244, both cited above). It remains to be examined whether the fact that the applicant was not removed directly to the territory of another State but to the strip of land which belonged to Hungary – that is to say the land between the border fence and the actual border between Hungary and Serbia – means that the impugned measure fell outside the scope of Article 4 of Protocol No. 4. 49. The Court observes in this connection that the border fence which the applicant was made to cross had clearly been erected in order to secure the border between Hungary and Serbia. The narrow strip of land on the external side of that fence to which the applicant was escorted only had a technical purpose linked to the management of the border (see paragraph 17 above). There appears to have been no infrastructure on that strip of land and, as the respondent Government confirmed (see paragraph 42 above), in order to enter Hungary, deported migrants had to go to one of the transit zones, which normally involved crossing Serbia. The CJEU in its judgment of 17 December 2020 also found that migrants removed pursuant to section 5(1a) of the State Borders Act had no choice but to leave Hungarian territory (cited in paragraph 25 above, §§ 255-58). Another relevant, though not decisive, consideration is that according to the applicant and the statements of the officers who were standing on the external side of the border fence, he and the other men in the group were directed towards Serbia (see paragraphs 9 and 13 above). Having regard to the nature of the procedure to which he was subjected (see paragraph 9 above), the instruction given by the police officers could only be understood by him to be an order that had to be obeyed. 50. In view of the above, the Court finds that the measure to which the applicant was subjected on 12 August 2016 aimed at and resulted in his removal from Hungarian territory. It reiterates that the object and purpose of the Convention, as an instrument for the protection of human rights, requires that its provisions must be interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory (see Soering v. the United Kingdom, 7 July 1989, § 87, Series A no. 161, and Hirsi Jamaa and Others, cited above, § 175). Bearing this in mind, the Court notes that relying merely on the formal status of the strip of land on the external side of the border fence as part of Hungarian territory and disregarding the practical realities referred to in the preceding paragraph would lead to Article 4 of Protocol No. 4 being devoid of practical effectiveness in cases such as the present case, and would allow States to circumvent the obligations imposed on them by virtue of that provision. 51. While the Court accepts that the measure in question was aimed at preventing unauthorised border crossings at a time when Hungary was faced with a substantial influx of migrants, it emphasises that problems with managing migratory flows cannot justify having recourse to practices which are not compatible with the State’s obligations under the Convention (see Hirsi Jamaa and Others, cited above, § 179). The Court finds it appropriate to reiterate that the special nature of the context as regards migration cannot justify an area outside the law where individuals are covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the Convention which the States have undertaken to secure to everyone within their jurisdiction (see N.D. and N.T., cited above, § 110). 52. Having regard to the foregoing, the Court considers that the removal of the applicant to the external side of the border fence amounted to expulsion within the meaning of Article 4 of Protocol No. 4. This provision is therefore applicable. The Government’s objection should be accordingly dismissed. 53. Since this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention, it must be declared admissible. MeritsThe parties’ arguments The parties’ arguments The parties’ arguments 54. The applicant argued that when being apprehended by the Hungarian police, he had clearly stated in English and Urdu that he wished to apply for asylum, but to no avail. Following his return to Serbia, he had had no direct access to the two transit zones, which had been the only available option to enter Hungary and claim asylum. He had thus been denied any opportunity to claim international protection or rely on the non-refoulement principle. 55. The applicant pointed out that collective expulsions had become a daily routine since 5 July 2016. They had been done in a summary manner without any provision as to how the police should communicate with intercepted migrants and how they should register and deal with their claims and responses. 56. The applicant further submitted that the transit zones could only be reached by irregularly crossing Serbia. Furthermore, even if the applicant could physically get to the location of the transit zones from Serbian territory, he would have had no real chance of gaining access to them as people were obliged to wait for several months in order to be granted access and have their asylum applications submitted. As regards the wait before the transit zone, the applicant referred to the reports by UNHCR and other organisations indicating the severe conditions in which those waiting to access the transit zone were made to live. He claimed to have endured inhumane conditions without the ability to meet basic human needs and in a state of uncertainty. He emphasised that he had attempted to register his name on the waiting list before and after the last removal on 12 August 2016 but had been denied the opportunity to do so. 57. The Government explained that when escorting people under the State Borders Act, the police were obliged to supply them with multi-language information brochures, inform them of their violation of the law, the measure taken and its aim, the possibility and manner of filing a complaint against the police measure, the location of the nearest transit zone and the possibility of applying for asylum. After that, the police were obliged to escort those intercepted through the nearest gate in the temporary security border fence. Those concerned could apply for asylum in one of the transit zones after a temporary return to Serbia. If the asylum application was rejected, the decision on expulsion was taken in proceedings containing appropriate safeguards. The Court’s assessment (a) Relevant principles 58. The Court refers to the principles concerning the “collective” nature of an expulsion summarised in N.D. and N.T. (cited above, §§ 193 ‑ 201). It reiterates that the decisive criterion in order for an expulsion to be characterised as “collective” is the absence of “a reasonable and objective examination of the particular case of each individual alien of the group” (ibid., § 195). In line with this, in Hirsi Jamaa and Others v. Italy the Court found a violation of Article 4 of Protocol No. 4 because the applicants, who had been intercepted on the high seas, were returned to Libya without the Italian authorities carrying out any identification or examination of their individual circumstances (cited above, § 185). 59. Exceptions to the above rule have been found in cases where the lack of an individual expulsion decision could be attributed to the applicant’s own conduct (see Berisha and Haljiti v. the former Yugoslav Republic of Macedonia (dec.), no. 18670/03, 16 June 2005, and Dritsas v. Italy (dec), no. 2344/02, 1 February 2011). In the case of N.D. and N.T. (cited above), the Court considered that the exception absolving the responsibility of a State under Article 4 of Protocol no. 4 should also apply to situations in which the conduct of persons who crossed a land border in an unauthorised manner, deliberately took advantage of their large numbers and used force, was such as to create a clearly disruptive situation which was difficult to control and endangered public safety (§ 201). The Court added that in such situations, it should be taken into account whether in the circumstances of the particular case the respondent State provided genuine and effective access to means of legal entry, in particular border procedures, and if it did, whether there were cogent reasons for the applicants not to make use of it which were based on objective facts for which the respondent State was responsible (ibid.). (b) Application of the above principles to the present case 60. In the present case, the applicant maintained that he had expressed his wish to apply for asylum during the police procedure leading to his return, but that this had been denied (see paragraphs 8 and 54 above). While the Government submitted that those removed pursuant to section 5(1a) of the State Borders Act, like the applicant, were given certain information about the possibility of applying for asylum in one of the transit zones (see paragraph 57 in connection with paragraph 20 above), it has not been disputed that the applicant was removed from Hungary without being subjected to any identification procedure or examination of his situation by the Hungarian authorities. This should lead to the conclusion that his expulsion was of a collective nature (see Hirsi Jamaa and Others, cited above, §§ 185 and 186), except if the lack of examination of his situation could be attributed to his own conduct (see paragraph 59 above). The Court will therefore proceed to examine whether in the circumstances of the present case and having regard to the principles developed in its case-law, in particular the judgment in N.D. and N.T. (cited above, see paragraph 59 above), the lack of individual removal decision can be justified by the applicant’s own conduct. 61. The Court takes note of the fact that the applicant, together with eleven other migrants, crossed the Hungarian border in an unauthorised manner. However, the Government have not argued that their crossing of the border created a disruptive situation which was difficult to control, or that public safety was compromised as a result. The group, including the applicant, were apprehended after walking for several hours. The video footage submitted to the Court shows the presence of numerous officers, who encircled the men, transported them in a van and then escorted them through the gate in the border fence. According to the criminal investigation file, there were at least eleven officers present during the removal (see paragraphs 9, 10 and 15 above). There is no indication that the applicant or other men in the group used any force or resisted the officers. On the contrary, the video footage shows that the situation was entirely under the officers’ control and that the migrants, including the applicant, followed the orders given by the officers. The Court therefore considers that, apart from the applicant’s unauthorised manner of entry, the present case cannot be compared to the situation in N.D. and N.T., where the applicants were apprehended during an attempt to cross the land border en masse by storming the border fences (cited above, §§ 22, 166, 206 and 231). It will nevertheless proceed to examine whether, by crossing the border irregularly, the applicant circumvented an effective procedure for legal entry. 62. The Court reiterates that with regard to Contracting States like Hungary, whose borders coincide, at least partly, with external borders of the Schengen Area, the effectiveness of the Convention rights requires that these States make available genuine and effective access to means of legal entry, in particular border procedures for those who have arrived at the border. Those means should allow all persons who face persecution to submit an application for protection, based in particular on Article 3 of the Convention, under conditions which ensure that the application is processed in a manner consistent with international norms, including the Convention (see N.D. and N.T., cited above, § 209). The Court also observes that the Convention does not prevent States, in fulfilment of their obligation to control borders, from requiring applications for international protection to be submitted at the existing border crossing points (ibid., § 210). What is important is that such entry points secure the right to request protection under the Convention, and in particular Article 3, in a genuine and effective manner (ibid.). 63. In the present case, it is uncontested that the only possibilities for the applicant to legally enter Hungary were the two transit zones, Tompa and Röszke, located approximately 40 km and 84 km respectively from the location to which the applicant was returned. The Court notes that once a person entered the transit zone and made a request for international protection, that request was dealt with in accordance with the procedure set out in the Asylum Act (see paragraphs 18 and 19 above). However, it does not need to assess the quality of that procedure because in the present case the applicant argued that he had had no realistic chance of entering the transit zones and making his request for international protection. He submitted that although he could physically reach the area surrounding the transit zones, he could not have made use of the asylum procedure because of the limited access to the transit zones resulting from the limit on the daily number of applications. Migrants could only enter the transit zone after being called from a waiting list on which they had to register their name beforehand. It took several months for single men to be called from the waiting list. Moreover, the applicant argued that he had tried to register his name on the aforementioned waiting list but that this had been denied because of his status as a single man (see paragraphs 6, 16 and 54 above). 64. The Court observes that the above accounts of the applicant have not been refuted by the Government, who provided no information as to how the entries to the transit zones had been organised and managed at the material time. The Court, having regard to the applicant’s submissions corroborated by the reports of UNHCR, finds it established that at the time of the events in issue each transit zone admitted only fifteen applicants for international protection per day, which was significantly low (see paragraphs 30 and 31 above). It also finds it established that those wishing to enter the transit zone had to first register their name on the waiting list – an informal tool for establishing the order of entering the transit zones – and then potentially wait several months in Serbia before being allowed to enter (see paragraphs 25, 28 and 31 above). It further takes note of the applicant’s submission that he had in fact never been registered on the waiting list even though he had asked the person managing the list to add his name. In this regard, the Court observes that both UNHCR and the Special Representative of the Secretary General of the Council of Europe on Migration and Refugees pointed to irregularities and a lack of transparency in managing access to the transit zones and the handling of the waiting lists (see paragraphs 28 and 30 above). UNHCR also observed that single men who had not been visibly in need of special treatment had been actively discouraged from approaching the transit zones (see paragraph 30 above). In view of the foregoing and, in particular, the informal nature of this procedure, the applicant could not be criticised for not having his name added to the waiting list. 65. Having regard to the limited access to the transit zones and lack of any formal procedure accompanied by appropriate safeguards governing the admission of individual migrants in such circumstances, the Court considers that the responded State failed to secure the applicant effective means of legal entry. The lack of an individual expulsion decision could not therefore be attributed to the applicant’s own conduct. 66. In light of the above circumstances, the Court finds that the Government’s objection as to the applicant’s victim status based on the argument that he did not lodge an application for international protection (see paragraphs 32, 38 and 40 above) must be dismissed. 67. In view of the fact that Hungarian authorities removed the applicant without identifying him and examining his situation, and having regard to the above finding that he did not have effective access to means of legal entry, the Court concludes that his removal was of a collective nature (see paragraph 59 above). 68. There has therefore been a violation of Article 4 of Protocol No. 4 to the Convention. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION in conjuNction with Article 4 of Protocol No. 4 to the convention 69. The applicant complained, under Article 13 of the Convention, that he had had no remedy at his disposal that would have enabled him to complain of a violation of Article 4 of Protocol No. 4 to the Convention. Article 13 reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” Admissibility 70. The Government argued that the complaint under Article 13 of the Convention was essentially identical to that under Article 4 of Protocol No. 4. They further argued that Article 13 was inapplicable because it did not provide for the right to challenge a Contracting State’s primary legislation before a national authority on the grounds that it was contrary to the Convention. 71. The applicant argued that he was not contesting the legislation as such but was complaining about the measure taken against him based on it. He submitted that the application of the measure in question had clearly led to him being unable to apply for asylum and have access to domestic proceedings that complied with Article 13 requirements. 72. The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured. The effect of that provision is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and grant appropriate relief (see Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000 ‑ XI). 73. The Court notes that the applicant’s complaint does not concern the legislation as such but, as he rightly pointed out, the alleged lack of an effective remedy in relation to a particular measure taken against him. It further notes that the finding of a violation of Article 4 of Protocol No. 4 does not preclude it from also examining the applicant’s complaint under Article 13 taken together with of Article 4 of Protocol No. 4 (see, for instance, M.K. and Others, cited above, §§ 219-20). The finding of a violation (see paragraph 66 above), on the other hand, indicates that the complaint lodged by the applicant on this point is arguable for the purposes of Article 13 (see, for instance, Hirsi Jamaa and Others, § 201, and M.K. and Others, § 219, both cited above). 74. The Court accordingly finds that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. Merits 75. The applicant argued that as his removal had not been accompanied by any procedural safeguards and no decision had been issued in that regard, he had had no effective way of challenging it. The law did not provide for any remedy against the removal carried out under section 5(1a) of the State Borders Act, but legalised the practice of summary and automatic expulsions. The applicant argued that he had had the right to have the credibility of his claims under Articles 2 and 3 of the Convention examined before his removal. 76. The Government did not comment on the merits of this complaint apart from submitting that it raised no separate issue to that already raised under Article 4 of Protocol No. 4 taken alone. 77. The Court notes that the scope of the Contracting States’ obligations under Article 13 varies depending on the nature of the applicant’s complaint. However, the remedy required by that provision must be “effective” in practice as well as in law (see, among many other authorities, Kudła, cited above, § 157). Where an applicant alleges that the expulsion procedure was “collective” in nature, he or she should have an effective possibility of challenging the expulsion decision by having a sufficiently thorough examination of his or her complaints carried out by an independent and impartial domestic forum (see Khlaifia and Others, cited above, § 279). 78. Turning to the facts before it, the Court notes that the Government mentioned in connection with Article 4 of Protocol No. 4 that persons being removed pursuant to section 5(1a) of the State Borders Act were informed of their right to, inter alia, complain against the police measure (see paragraph 57 above). However, they did not indicate the legal basis for such a complaint, let alone submit any domestic case-law in this regard. In view of the foregoing, the Court finds that they failed to illustrate the effectiveness of the remedy to which they referred in their submissions (see, mutatis mutandis, Yarashonen v. Turkey, no. 72710/11, § 63, 24 June 2014). The Court further notes that the Government did not refer to any other remedy the applicant could have used to complain about his removal from Hungary and that no remedy appears to be provided for by law regulating such removals (see paragraph 18 above). Consequently, and in view of the above finding that the applicant had no effective access to the procedure for examining his personal situation because of the limited access to the transit zones, the Court considers that he did not have at his disposal any remedy which might satisfy the criteria under Article 13 of the Convention. 79. There has accordingly been a violation of Article 13 of the Convention taken in conjunction with Article 4 of Protocol No. 4. APPLICATION OF ARTICLE 41 OF THE CONVENTION 80. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 81. The applicant claimed 5,000 euros (EUR) in respect of non-pecuniary damage for the emotional distress and damage to physical and mental health suffered as a result of the violations complained of. 82. The Government argued that the claim was excessive. 83. In view of the particular circumstances of the present case and the nature of the violations found, the Court considers that the sum claimed by the applicant is reasonable and awards him the amount in full, plus any tax that may be chargeable. Costs and expenses 84. The applicant also claimed EUR 12,105 for the costs and expenses incurred before the Court. The sum corresponds to 80.5 hours of legal work at an hourly rate of EUR 150, plus EUR 30 for clerical expenses. The applicant’s representative submitted that, according to their agreement, the applicant would only be obliged to pay the costs of legal representation if he succeeded with the application before the Court. 85. The Government argued that the expenses claimed were excessive, especially in view of the similarity of the applicant’s observations and annexes to those submitted in other cases by the applicant’s representative and the fact that a significant proportion of the applicant’s submissions were news articles and NGO reports lacking any probative value and thus relevance to the case. 86. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 5,000 for the proceedings before the Court, plus any tax that may be chargeable to the applicant. Default interest 87. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 4 of Protocol No. 4 to the Convention, finding that the applicant had been subject to a “collective” expulsion, as his individual situation had not been ascertained by the authorities, and they had not provided genuine and effective ways to enter Hungary, and his removal had not been a result of his conduct. The Court also held that there had been a violation of Article 13 (right to an effective remedy) of the Convention taken in conjunction with Article 4 of Protocol No. 4, finding that the applicant had not had an adequate legal remedy available to him. |
1,046 | Domestic workers | II. RELEVANT DOMESTIC LAW AND PRACTICE 32. Section 4 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 created the offence of trafficking people for exploitation. It provides that: “ (1) A person commits an offence if he arranges or facilitates the arrival in the United Kingdom of an individual (the “passenger”) and— (a) he intends to exploit the passenger in the United Kingdom or elsewhere, or (b) he believes that another person is likely to exploit the passenger in the United Kingdom or elsewhere. (2) A person commits an offence if he arranges or facilitates travel within the United Kingdom by an individual (the “passenger”) in respect of whom he believes that an offence under subsection (1) may have been committed and— (a) he intends to exploit the passenger in the United Kingdom or elsewhere, or (b) he believes that another person is likely to exploit the passenger in the United Kingdom or elsewhere. (3) A person commits an offence if he arranges or facilitates the departure from the United Kingdom of an individual (the “passenger”) and— (a) he intends to exploit the passenger outside the United Kingdom, or (b) he believes that another person is likely to exploit the passenger outside the United Kingdom. (4) For the purposes of this section a person is exploited if (and only if)— (a) he is the victim of behaviour that contravenes Article 4 of the Human Rights Convention (slavery and forced labour), (b) he is encouraged, required or expected to do anything as a result of which he or another person would commit an offence under the Human Organ Transplants Act 1989 (c. 31) or the Human Organ Transplants (Northern Ireland) Order 1989 (S.I. 1989/2408 (N.I. 21)), (c) he is subjected to force, threats or deception designed to induce him— (i) to provide services of any kind, (ii) to provide another person with benefits of any kind, or (iii) to enable another person to acquire benefits of any kind, or (d) he is requested or induced to undertake any activity, having been chosen as the subject of the request or inducement on the grounds that— (i) he is mentally or physically ill or disabled, he is young or he has a family relationship with a person, and (ii) a person without the illness, disability, youth or family relationship would be likely to refuse the request or resist the inducement. (5) A person guilty of an offence under this section shall be liable— (a) on conviction on indictment, to imprisonment for a term not exceeding 14 years, to a fine or to both, or (b) on summary conviction, to imprisonment for a term not exceeding twelve months, to a fine not exceeding the statutory maximum or to both.” 33. On 12 November 2009 the Coroners and Justice Act 2009 received Royal Assent. Section 71, which will come into force “on such day as the Secretary of State may by order appoint”, provides as follows: “71 Slavery, servitude and forced or compulsory labour (1) A person (D) commits an offence if— (a) D holds another person in slavery or servitude and the circumstances are such that D knows or ought to know that the person is so held, or (b) D requires another person to perform forced or compulsory labour and the circumstances are such that D knows or ought to know that the person is being required to perform such labour. (2) In subsection (1) the references to holding a person in slavery or servitude or requiring a person to perform forced or compulsory labour are to be construed in accordance with Article 4 of the Human Rights Convention (which prohibits a person from being held in slavery or servitude or being required to perform forced or compulsory labour). (3) A person guilty of an offence under this section is liable— (a) on summary conviction, to imprisonment for a term not exceeding the relevant period or a fine not exceeding the statutory maximum, or both; (b) on conviction on indictment, to imprisonment for a term not exceeding 14 years or a fine, or both. (4) In this section— “Human Rights Convention” means the Convention for the Protection of Human Rights and Fundamental Freedoms agreed by the Council of Europe at Rome on 4 November 1950; “the relevant period” means— (a) in relation to England and Wales, 12 months; (b) in relation to Northern Ireland, 6 months.” III. RELEVANT INTERNATIONAL LAW AND PRACTICE 1. The ILO Forced Labour Convention 34. Articles 1 and 2 of the Convention provide as follows: “Article 1 1. Each Member of the International Labour Organisation which ratifies this Convention undertakes to suppress the use of forced or compulsory labour in all its forms within the shortest possible period. 2. With a view to this complete suppression, recourse to forced or compulsory labour may be had, during the transitional period, for public purposes only and as an exceptional measure, subject to the conditions and guarantees hereinafter provided. 3. At the expiration of a period of five years after the coming into force of this Convention, and when the Governing Body of the International Labour Office prepares the report provided for in Article 31 below, the said Governing Body shall consider the possibility of the suppression of forced or compulsory labour in all its forms without a further transitional period and the desirability of placing this question on the agenda of the Conference. Article 2 1. For the purposes of this Convention the term forced or compulsory labour shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily. 2. Nevertheless, for the purposes of this Convention, the term forced or compulsory labour shall not include-- (a) any work or service exacted in virtue of compulsory military service laws for work of a purely military character; (b) any work or service which forms part of the normal civic obligations of the citizens of a fully self-governing country; (c) any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations; (d) any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests, and in general any circumstance that would endanger the existence or the well-being of the whole or part of the population; (e) minor communal services of a kind which, being performed by the members of the community in the direct interest of the said community, can therefore be considered as normal civic obligations incumbent upon the members of the community, provided that the members of the community or their direct representatives shall have the right to be consulted in regard to the need for such services.” 2. The ILO indicators of forced labour 35. The ILO has developed indicators of forced labour which provide a valuable benchmark in the identification of forced labour. These indicators are: “1. Threats or actual physical harm to the worker. 2. Restriction of movement and confinement to the work place or to a limited area. 3. Debt bondage: where the worker works to pay off a debt or loan, and is not paid for his or her services. The employer may provide food and accommodation at such inflated prices that the worker cannot escape the debt. 4. Withholding of wages or excessive wage reductions, that violate previously made agreements. 5. Retention of passports and identity documents, so that the worker cannot leave, or prove his/her identity and status. 6. Threat of denunciation to the authorities, where the worker is in an irregular immigration status.” 3. The Council of Europe Convention on Action Against Trafficking 36. The United Kingdom ratified the Convention on 17 December 2008 and it came into force on 1 April 2009. 37. Article 4 defines “trafficking in human beings" as follows: “(a) the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs; (b) The consent of a victim of “trafficking in human beings” to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used; 38. Article 19 provides that: “Each Party shall consider adopting such legislative and other measures as may be necessary to establish as criminal offences under its internal law, the use of services which are the object of exploitation as referred to in Article 4 paragraph (a) of this Convention, with the knowledge that the person is a victim of trafficking in human beings.” 4. The Slavery Convention 1926 39. Article 5 of this Convention, which the United Kingdom ratified in 1927, provides that: “The High Contracting Parties recognise that recourse to compulsory or forced labour may have grave consequences and undertake, each in respect of the territories placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage, to take all necessary measures to prevent compulsory or forced labour from developing into conditions analogous to slavery. It is agreed that: (1) Subject to the transitional provisions laid down in paragraph (2) below, compulsory or forced labour may only be exacted for public purposes. (2) In territories in which compulsory or forced labour for other than public purposes still survives, the High Contracting Parties shall endeavour progressively and as soon as possible to put an end to the practice. So long as such forced or compulsory labour exists, this labour shall invariably be of an exceptional character, shall always receive adequate remuneration, and shall not involve the removal of the labourers from their usual place of residence. (3) In all cases, the responsibility for any recourse to compulsory or forced labour shall rest with the competent central authorities of the territory concerned.” 5. Recommendations 1523 (2001) and 1663 (2004) of the Parliamentary Assembly of the Council of Europe 40. Recommendation 1523 (2001) provides, as relevant, that: “1. In the last few years a new form of slavery has appeared in Europe, namely domestic slavery. It has been established that over 4 million women are sold each year in the world. 2. In this connection the Assembly recalls and reaffirms Article 4, paragraph 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which prohibits slavery and servitude, and also the definition of slavery derived from the opinions and judgments of the European Commission of Human Rights and the European Court of Human Rights. 3. The Assembly also recalls Article 3 of the ECHR, which provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment, and Article 6, which proclaims the right of access to a court in civil and criminal matters, including cases where the employer enjoys immunity from jurisdiction. ... ... ... 5. It notes that the victims’ passports are systematically confiscated, leaving them in a situation of total vulnerability with regard to their employers, and sometimes in a situation bordering on imprisonment, where they are subjected to physical and/or sexual violence. 6. Most of the victims of this new form of slavery are in an illegal situation, having been recruited by agencies and having borrowed money to pay for their journey. 7. The physical and emotional isolation in which the victims find themselves, coupled with fear of the outside world, causes psychological problems which persist after their release and leave them completely disoriented. ... ... ... 9. It regrets that none of the Council of Europe member states expressly make domestic slavery an offence in their criminal codes. 10. It accordingly recommends that the Committee of Ministers ask the governments of member states to: THE LAW I. ALLEGED VIOLATION OF ARTICLE 4 OF THE CONVENTION 42. The applicant complained that at the time of her ill-treatment the Government were in breach of their positive obligations under Article 4 of the Convention to have in place criminal laws penalising forced labour and servitude. Article 4 of the Convention provides as follows: “1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. 3. For the purpose of this article the term ‘forced or compulsory labour’ shall not include: (a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of [the] Convention or during conditional release from such detention; (b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service; (c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community; (d) any work or service which forms part of normal civic obligations.” 43. The Government contested that argument. A. Admissibility 44. The Government submitted that the application was manifestly ill ‑ founded and therefore inadmissible because there was insufficient evidence to conclude that the applicant had been subjected to the kind of treatment prohibited by Article 4 and because the protection afforded by English law against conduct prohibited by Article 4 was sufficient to discharge the positive obligation on the State. 45. The Court finds that the question of whether or not the applicant’s complaint under Article 4 is manifestly ill-founded is a matter to be determined on the merits. 46. It notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicant 47. The applicant submitted that the Government were under a positive obligation to enact domestic law provisions specifically criminalising the conduct prohibited by Article 4; they failed to enact such provisions until 2009; and, as she had made a credible allegation of ill-treatment contrary to Article 4 in 2006, any investigation into her complaints was ineffective as it was not directed at determining whether or not she had been a victim of treatment contrary to Article 4 and could not therefore result in a prosecution. 48. The applicant noted that in Siliadin v. France, no. 73316/01, § 123, ECHR 2005 ‑ VII the Court defined servitude as a “particularly serious form of denial of freedom” which included “in addition to the obligation to perform certain services for others ... the obligation for the ‘serf’ to live on another person’s property and the impossibility of altering his condition”. She submitted that she was required to live with Mr and Mrs K., who demanded difficult care and needed her to be “on call” twenty-four hours a day. She did so under coercion by S. and M. and she received no notable remuneration. Her working hours and conditions, and the removal of her travel documents, were such as to render her unable to alter her own situation. 49. In Siliadin the Court defined forced or compulsory labour with reference to the International Labour Organisation Forced Labour Convention, which included “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”. The Court itself noted that the term brought to mind the idea of “physical or mental constraint”. In Siliadin the Court found this element to be present where the applicant was an adolescent girl, unlawfully present in a foreign land and living in fear of arrest by the police. In the present case, in light of the definition adopted by the Court and the ILO, and taking into consideration the reports by the POPPY Project and the consultant psychiatrist, the applicant submitted that the police’s conclusion that the lack of payment for the applicant’s work was no more than an absence of “honour among thieves” betrayed a fundamental disregard of the ILO’s key indicators of forced labour and a troubling ignorance of the vulnerabilities of illegal immigrants. 50. The applicant submitted that the relevant domestic law provisions did not, at the relevant time, include the criminal offence of forced labour or servitude. Indeed, the police confirmed to the applicant in writing that there was no offence known to them which encapsulated her situation. As a result, notwithstanding the strong evidence of treatment falling within the scope of Article 4 of the Convention, no effective investigation could be conducted into her treatment and no person had been arrested or prosecuted in relation to it. Moreover, there was not even a domestic offence akin to those relied on by the French Government in Siliadin, namely provisions criminalising the obtaining of performance of services for no payment or for manifestly disproportionate underpayment, and the subjection of another to living or working conditions incompatible with human dignity. The best that could be advanced by the British Government were general offences such as kidnapping, fraud, or psychological assault, none of which fulfilled the positive obligation under Article 4 of the Convention. 51. The applicant submitted that the decision of the Court in Siliadin made it clear that what was required was legislation specifically criminalising conduct falling within the scope of Article 4. Ancillary offences which might also be committed during the course of forced labour or servitude did not provide sufficient protection under the Convention. 52. Finally, the applicant submitted that in introducing section 71 of the Coroners and Justice Bill, which created specific offences of slavery, servitude and forced or compulsory labour, the Government had accepted that there was a “lacuna in the law” which needed to be filled. (b) The Government 53. The Government did not accept that the applicant had been subjected to slavery, domestic servitude or forced or compulsory labour. First, an investigation into her complaints had been conducted by a specialist police unit. Having investigated the complaint, they reached three important conclusions: that the evidence was insufficient to establish that the applicant had been trafficked into the United Kingdom; that the evidence was insufficient to establish that whilst in the United Kingdom she had been held in slavery or required to perform forced or compulsory labour; and that the evidence was insufficient to establish that she had been the victim of any criminal offence. 54. Secondly, the Government submitted that the police did not terminate the investigation or decide not to bring a prosecution on the basis that there was no specific offence in English law which criminalised the conduct complained of. On the contrary, the crime report of 26 March 2009 made it clear that the decision to terminate the investigation was taken on a substantive assessment of the evidence, which led to the conclusion that it could not be established that the applicant had been trafficked, held in slavery or required to perform forced or compulsory labour. 55. Thirdly, the Government submitted that the conclusions of the police were reasonable and proper and were, in fact, reinforced by the Asylum and Immigration Tribunal, which found most of the applicant’s account to be implausible and had serious concerns about her credibility. 56. In any case, the Government submitted that in the applicant’s situation the protections offered by domestic law were sufficient to comply with the positive obligation to have in place criminal law provisions which penalised the conduct falling within the scope of Article 4. Article 4 did not require that the effective protection against the prohibited conduct should be achieved by means of the adoption of a single, specific criminal offence. At the time of the conduct alleged by the applicant there were a number of offences in English law which criminalised the essential aspects of slavery, servitude and forced or compulsory labour. These included false imprisonment, for which the maximum sentence was life imprisonment; kidnapping, for which the maximum sentence was also life imprisonment; grievous bodily harm, which carried a maximum sentence of life imprisonment; assault, battery and causing physical or psychiatric harm, the more serious offences of which carried a maximum sentence of five years’ imprisonment; blackmail, which carried a maximum sentence of fourteen years’ imprisonment; harassment, which carried a maximum sentence of five years’ imprisonment; and a number of employment-related offences, such as those relating to the national minimum wage and working time limits. 57. In addition, English criminal law now had a well-established offence of human trafficking introduced by section 4 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004. Section 4 made provision for offences of trafficking into, within and from the United Kingdom a person who had been exploited and, for the purposes of the offences, exploitation meant behaviour that contravened Article 4. 58. Moreover, in England there was now a specific offence relating to the prohibition in Article 4. Section 71 of the Coroners and Justice Act 2009, which came into force on 6 April 2010, made provision for an offence of holding a person in slavery or servitude or requiring a person to perform forced or compulsory labour. The Government rejected the applicant’s assertion that this offence was introduced to fill a lacuna in the domestic law; rather, they submitted that Parliament had considered it “useful to introduce a further bespoke offence” even though the new offences were “already covered by extensive legislation and regulations”. In any case, the Government submitted that even if the offence under section 71 had applied at the time of the conduct alleged by the applicant, the evidence in her case would have been insufficient to bring a prosecution. 59. Finally, the Government submitted that the positive obligation under Article 4 of the Convention was discharged in the applicant’s case by the carrying out of an effective official investigation which went directly to the heart of her Article 4 complaint. The applicant was extensively and carefully questioned and further enquiries were undertaken. A witness provided a statement indicating that the applicant had agreed that her wages should be paid to S. and that she did not complain about this arrangement for over three years. On reviewing the evidence, the police concluded that it was not sufficient to establish that the applicant had been the victim of conduct prohibited by Article 4 of the Convention. Rather, the police concluded that she had entered the United Kingdom voluntarily, had worked voluntarily, and had agreed that her wages should be paid to a family member in order to avoid her detection by the authorities as an illegal immigrant. 60. Consequently, the Government submitted that in the circumstances there was no arguable case that the applicant’s rights under Article 4 had been violated. (c) The third party interveners α. The Aire Centre 61. The Aire Centre invited the Court to expand upon the notion of positive obligations which it had developed in its case-law on Article 4. It stressed that victims of human trafficking were particularly unlikely to be identified by the authorities as victims of crime and that States must therefore take a pro-active approach. An effective deterrent must mean an approach to human trafficking and any other conduct contrary to Article 4 that recognised the subtle ways in which individuals might fall under the control of another. It also required a considered response to allegations of such treatment in all cases. β. The Equality and Human Rights Commission 62. The Commission submitted that since the ratification of ILO Convention no. 29 in 1931 the United Kingdom had been under a positive obligation to formally penalise the exaction of forced labour and to adequately enforce such penalties. However, until 6 April 2010 there was no specific prohibition on servitude and forced labour despite strong evidence of severe exploitation and forced labour within the United Kingdom. Indeed, the Commission indicated that from 1 December 2004 to March 2010 there were 22 prosecutions under section 4 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004, and yet 207 individuals were recognised as victims of trafficking between 1 April 2009 and 1 April 2010 alone. In fact, in a number of cases, particularly involving domestic workers, victims had to resort to judicial review because of a lack of investigation of their complaints by the police. 63. The Commission further submitted that there had been a number of cases which in substance concerned forced labour or servitude but which had not been adequately investigated or prosecuted and there was therefore a need for clarity on what amounted to forced labour as distinct from exploitation. Moreover, the Commission did not consider section 71 of the Coroners and Justice Act 2009 to be of assistance because it merely reproduced the text of the Convention without explaining it in light of present day conditions. There was therefore a risk that the new statute would not result either in clear deterrence or effective prosecutions, and would not improve the failures in investigation. 64. Finally, the Commission submitted that there was no adequate system of compensation for victims of servitude and forced labour. 2. The Court’s assessment (a) General principles 65. The Court reiterates that, together with Articles 2 and 3, Article 4 enshrines one of the basic values of the democratic societies making up the Council of Europe ( Siliadin, cited above, § 82). Unlike most of the substantive clauses of the Convention, Article 4 § 1 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation. 66. In its Siliadin judgment the Court confirmed that Article 4 entailed a specific positive obligation on member States to penalise and prosecute effectively any act aimed at maintaining a person in a situation of slavery, servitude or forced or compulsory labour (cited above, §§ 89 and 112; see also C.N. and V. v. France, no. 67724/09, § 105, 11 October 2012). 67. In its Rantsev judgment, the Court held that as with Articles 2 and 3 of the Convention, Article 4 may, in certain circumstances, require a State to take operational measures to protect victims, or potential victims, of treatment in breach of that Article (see, mutatis mutandis, Osman, cited above, § 115; and Mahmut Kaya v. Turkey, no. 22535/93, § 115, ECHR 2000-III). In order for a positive obligation to take operational measures to arise in the circumstances of a particular case, it must be demonstrated that the State authorities were aware, or ought to have been aware that an identified individual had been, or was at real and immediate risk of being subjected to such treatment. In the case of an answer in the affirmative, there will be a violation of Article 4 of the Convention where the authorities fail to take appropriate measures within the scope of their powers to remove the individual from that situation or risk (see, mutatis mutandis, Osman, cited above, §§116 to 117; and Mahmut Kaya, cited above, §§ 115 to 116). 68. Bearing in mind the difficulties involved in policing modern societies and the operational choices which must be made in terms of priorities and resources, the obligation to take operational measures must, however, be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities (see, mutatis mutandis, Osman, cited above, § 116). 69. Like Articles 2 and 3, Article 4 also entails a procedural obligation to investigate where there is a credible suspicion that an individual’s rights under that Article have been violated. The requirement to investigate does not depend on a complaint from the victim or next-of-kin: once the matter has come to the attention of the authorities they must act of their own motion (see, mutatis mutandis, Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 69, ECHR 2002-II). For an investigation to be effective, it must be independent from those implicated in the events. It must also be capable of leading to the identification and punishment of individuals responsible, an obligation not of result but of means. A requirement of promptness and reasonable expedition is implicit in all cases but where the possibility of removing the individual from the harmful situation is available, the investigation must be undertaken as a matter of urgency. The victim or the next-of-kin must be involved in the procedure to the extent necessary to safeguard their legitimate interests (see, mutatis mutandis, Paul and Audrey Edwards, cited above, §§ 70 to 73). (b) Application of the general principles to the present case 70. In the present case the applicant alleges that there was a failure properly to investigate her complaints and that this failure was at least in part rooted in defective legislation which did not effectively criminalise treatment falling within the scope of Article 4 of the Convention. 71. The Court observes that in Rantsev, in the context of trafficking, it held that in order for an obligation to investigate to have arisen, the circumstances must have given rise to a “credible suspicion” that the applicant had been trafficked. Likewise, it considers that for an obligation to have arisen in the present case, it must be satisfied that the applicant’s complaints to the domestic authorities gave rise to a credible suspicion that she had been held in domestic servitude. 72. The Court notes that the authorities were first made aware of the applicant’s claim to have been kept in conditions amounting to domestic servitude after she collapsed at the HSBC bank in Kilburn in August 2006. On 21 September 2006 she made an application for asylum, in the course of which she complained, inter alia, that she had been forced to work for the K family without remuneration. Furthermore, in April 2007 the applicant’s solicitor wrote to the police and asked that they investigate her case. She was interviewed by the Human Trafficking Team on 21 June 2007 and gave a detailed statement in which she set out her domestic servitude complaints. The Court does not consider that the applicant’s complaints concerning her treatment by S. and M. were inherently implausible. Indeed, it notes that the circumstances which she described were remarkably similar to the facts of the Siliadin case, the only notable differences being that the applicant was older than the applicant in Siliadin and that it was an agent – and not her “employers” – who she claimed were responsible for the treatment contrary to Article 4 of the Convention. Although the Government have submitted that the applicant’s account was not in fact credible, the Court observes that this was a conclusion reached following further investigation of her complaints. Indeed, the fact that the domestic authorities conducted any investigation into the applicant’s complaints strongly indicates that, at least on their face, they were not inherently implausible. Consequently, the Court considers that the applicant’s complaints did give rise to a credible suspicion that she had been held in conditions of domestic servitude, which in turn placed the domestic authorities under an obligation to investigate those complaints. 73. It is clear that the domestic authorities did investigate the applicant’s complaints. However, the applicant submits that the investigation was deficient because the lack of specific legislation criminalising domestic servitude meant that it was not directed at determining whether or not she had been a victim of treatment contrary to Article 4 of the Convention. 74. It is not in dispute that at the time the applicant alleged that she was subjected to treatment falling within the scope of Article 4 of the Convention, such conduct was not specifically criminalised under domestic law. There were, however, a number of criminal offences which criminalised certain aspects of slavery, servitude and forced or compulsory labour. In particular, the Government directed the Court’s attention to the offences of trafficking, false imprisonment, kidnapping, grievous bodily harm, assault, battery, blackmail and harassment. 75. In Siliadin, the Court found that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably required greater firmness in assessing breaches of the fundamental values of democratic societies. ( Siliadin v. France, cited above, § 148). In that case, the Court found that Articles 2250-13 and 225-14 of the French Criminal Code, which concerned exploitation through labour and subjection to working and living conditions incompatible with human dignity, were not sufficiently specific and were too restrictive to protect the applicant’s rights under Article 4 of the Convention. 76. In view of the Court’s findings in Siliadin, it cannot but find that the legislative provisions in force in the United Kingdom at the relevant time were inadequate to afford practical and effective protection against treatment falling within the scope of Article 4 of the Convention (see, mutatis mutandis, M.C. v. Bulgaria, no. 39272/98, § 179, ECHR 2003 ‑ XII). Instead of enabling the authorities to investigate and penalise such treatment, the authorities were limited to investigating and penalising criminal offences which often – but do not necessarily – accompany the offences of slavery, servitude and forced or compulsory labour. Victims of such treatment who were not also victims of one of these related offences were left without any remedy. 77. Consequently, the Court considers that the criminal law in force at the material time did not afford practical and effective protection against treatment falling within the scope of Article 4 of the Convention. 78. Nevertheless, the Government have submitted that the reason no action was taken following investigation of the applicant’s complaints was not the absence of appropriate legislation but rather the absence of evidence to support the facts alleged by her. In short, the domestic authorities simply did not believe the applicant’s account. The Court must therefore consider whether the lack of specific legislation criminalising domestic servitude prevented the domestic authorities from properly investigating the applicant’s complaints, or whether her complaints were properly investigated but no evidence was found to support them. In carrying out this assessment, the Court reiterates that it is not its task to replace the domestic authorities in the assessment of the facts of the case. 79. The Court recalls that the investigation into the applicant’s complaints was commenced by the Metropolitan Police Human Trafficking Team, a police unit specialising in the investigation of human trafficking offences. On 26 September 2007 they informed the applicant’s solicitor that there was “no evidence of trafficking for domestic servitude”. Likewise, on 5 September 2008 they noted that there was “no evidence to substantiate the applicant’s allegation that she had been trafficked into the United Kingdom”. She had been well looked after by the K family, although there had been a dispute over money and it may have been that “her cousin kept more than he should have done”. Again, on 18 September 2008 the police stated that “it was decided that there was insufficient evidence to substantiate the allegation of trafficking and thus further investigation was not warranted” and on 25 February 2009 they noted that “there is no evidence that would support exploitation of any kind”. Later, on 27 March 2009, the police recorded that “there is no evidence to show that this female is/was a victim of slavery or forced labour”. Finally, on 12 August 2009 the police wrote to the applicant’s solicitor, indicating that her case did not appear to constitute an offence of trafficking for the purposes of exploitation and that they were “not aware of any specific offence of forced labour or servitude”. 80. While the Court notes the credibility concerns voiced by the domestic authorities, it cannot but be concerned by the investigating officers’ heavy focus on the offence of trafficking for exploitation as set out in section 4 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004. In particular, it observes that the investigation into the applicant’s complaints was carried out by a specialist trafficking unit and while investigators occasionally referred to slavery, forced labour and domestic servitude it is clear that at all times their focus was on the offence enshrined in section 4 of the 2004 Act. As indicated by the Aire Centre and the Equality and Human Rights Commission in their third party interventions, domestic servitude is a specific offence, distinct from trafficking and exploitation, which involves a complex set of dynamics, involving both overt and more subtle forms of coercion, to force compliance. A thorough investigation into complaints of such conduct therefore requires an understanding of the many subtle ways an individual can fall under the control of another. In the present case, the Court considers that due to the absence of a specific offence of domestic servitude, the domestic authorities were unable to give due weight to these factors. In particular, the Court is concerned by the fact that during the course of the investigation into the applicant’s complaints, no attempt appears to have been made to interview S. despite the gravity of the offence he was alleged to have committed (see, by way of comparison, M. and Others v. Italy and Bulgaria, no. 40020/03, §§ 104 - 107, 31 July 2012). For the Court, the lacuna in domestic law at the time may explain this omission, together with the fact that no apparent weight was attributed to the applicant’s allegations that her passport had been taken from her, that S. had not kept her wages for her as agreed, and that she was explicitly and implicitly threatened with denunciation to the immigration authorities, even though these factors were among those identified by the ILO as indicators of forced labour. 81. Consequently, the Court finds that the investigation into the applicant’s complaints of domestic servitude was ineffective due to the absence of specific legislation criminalising such treatment. 82. Accordingly, there has been a violation of Article 4 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 83. The applicant further complained under Article 8 of the Convention that her right to respect for her private and family life was profoundly violated by the treatment she was subjected to between 2002 and 2006. 84. The Court does not consider the applicant’s complaint under Article 8 to be manifestly ill-founded within the meaning of Article 35 §§ 3 of the Convention. It further notes that it is not inadmissible on any other grounds and must, therefore, be declared admissible. However, having regard to its findings under Article 4 (see paragraphs 70 – 82, above), the Court considers that no separate issue arises under Article 8 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 85. Finally, the applicant complained that the absence of any specific criminal offence of domestic servitude or forced labour denied her an effective remedy in respect of her complaints under Articles 4 and 8 of the Convention. 86. The Court does not consider the applicant’s complaints under Article 13 to be manifestly ill-founded within the meaning of Article 35 §§ 3 of the Convention. It further notes that they are not inadmissible on any other grounds and must, therefore, be declared admissible. However, having regard to its findings under Article 4 (see paragraphs 70 – 82, above), the Court considers that no separate issue arises under Article 13 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 87. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 88. The applicant claimed ten thousand euros (EUR 10,000) in respect of non-pecuniary damages. She considered this figure to be appropriate in light of the recent case of M.C. v. Bulgaria (cited at paragraph 76, above) and K.U. v. Finland, no. 2872/02, ECHR 2008, and taking into account the duration of the ill-treatment. 89. The Government submitted that the finding of a violation would in itself provide just satisfaction and that it would not be necessary for the Court to make an award of non-pecuniary damages. In the alternative, they submitted that if the Court considered an award of damages to be appropriate, it should not exceed the sum of EUR 8,000 awarded in M.C. v. Bulgaria. 90. In view of its recent findings in M.C. v. Bulgaria, the purely procedural nature of the violation found, and the Government’s genuine concerns about the applicant’s credibility, the Court awards her EUR 8,000 in respect of non-pecuniary damage. B. Costs and expenses 91. The applicant also claimed GBP 38,275.86 for costs and expenses incurred before the Court. 92. The Government submitted that this figure was excessive. The Government did not consider it necessary for the applicant to have instructed Queen’s Counsel. However, having appointed Queen’s Counsel, they considered the solicitor’s hourly rate of GBP 240 to be excessive. Moreover, the total number of hours claimed by the three representatives – 157 hours in total – appeared to be more than was reasonable for a case which was not exceptionally complicated. They therefore submitted that recovery of the applicant’s legal costs should be capped at GBP 9,000. 93. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 20,000 for the proceedings before the Court. C. Default interest 94. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 4 (prohibition of slavery and forced labour) of the Convention. It found that the legislative provisions in force in the United Kingdom at the relevant time had been inadequate to afford practical and effective protection against treatment contrary to Article 4. Due to this absence of specific legislation criminalising domestic servitude, the investigation into the applicant’s allegations of domestic servitude had been ineffective. |
675 | Public persons or political figures | RELEVANT LEGAL FRAMEWORK AND PRACTICE 36. Article 22 of the Constitution protects private life. 37. The Law on Providing Information to Society ( Visuomenės informavimo įstatymas ) read as follows at the relevant time: Article 14. Protection of Private Life “1. In producing and disseminating public information, it is mandatory to ensure a person’s right to have his personal and family life respected. ... 3. Information concerning private life may be published without a person’s consent in cases where the publication of the information does not cause harm to the person or where the information assists in uncovering violations of the law or crimes ... In addition, information about the private life of a public figure may be disseminated without his or her consent, if such information discloses circumstances of that person’s private life or his or her character traits which [are of] public interest.” 38. The Law on the Government ( Vyriausybės įstatymas ) at the material time read: Article 4. Basic Principles of the Activities of the Government “The Government shall ground its activities on the principles of collegiality, democracy, lawfulness and openness.” 39. At the material time the Code of Conduct for State Politicians ( Valstybės politikų elgesio kodeksas ) read: Article 2. Definitions “1. “State politicians” shall mean persons who are elected, in accordance with the procedure set forth by laws, as a member of the Seimas, President of the Republic, a member of the European Parliament, a member of a municipal council or a mayor of a municipality, or appointed as a member of Government or a deputy mayor of a municipality. ... 4. “Private life” shall mean the personal, home and domestic, and intimate life of a State politician, as well as his activities not related to the duties of a State politician, political activities or the institution in which he holds office. The conduct or personal features of a State politician that are related to certain circumstances of his private life and are likely to have influence over public interests shall not be considered [to constitute] private life. ... 6. “Political activities” shall mean a State politician’s actions, conduct and participation in the activities of representative and executive institutions during his tenure. 7. “Public interests” shall mean a public interest that in public life a politician would act in compliance with the Constitution of the Republic of Lithuania and its legal acts and would take decisions only for the benefit of the State, a municipality and the society. 8. “Public life” shall mean a State politician’s political activities as well as a State politician’s conduct not related to his private life.” Article 4. Principles of Conduct of State Politicians “In public life, a State politician shall adhere to the following principles of conduct: ... 3) honesty – shall perform his duties honestly and adhere to the highest standards of conduct, and avoid situations that may influence taking the decisions that may raise doubts in the society; 4) transparency and publicity – when taking decisions, shall not raise doubts as to honesty, reveal the motives of his conduct and decisions to society, always upkeep the principles of openness and publicity, except for the cases specified by laws restricting the disclosure of information, and declare his private interests; ... 6) exemplarity – shall act properly in public and adhere to the universally accepted norms of morality, morals and ethics; 7) selflessness – shall serve the state and public interests, avoid any apparent or real conflict of public and private interests, and, in the event of such conflict, undertake all the required measures to resolve them promptly and make them coincide with the public interests, and shall not use his post or position seeking to influence the decision to be taken by another person, which might be beneficial for the politician or a person closely related to him; ...” 40. The Law on the Seimas Provisional Investigation Commissions ( Seimo laikinųjų tyrimo komisijų įstatymas ) read as follows at the material time: Article 4. Rights of the Commission “1. The Commission has the right: 1) to be familiarised with all the information relevant to the investigation, and to receive documents, data or information from all State and other institutions ... even if they contain State or ... professional secret[s] ... ... 5) having agreed with General Prosecutor’s Office ... or pre-trial investigation institution, to see the criminal case-file or other materials or documents that are [in the prosecutor’s] possession; ...” 41. The Law on the Seimas Anti-Corruption Commission ( Seimo antikorupcijos komisijos įstatymas ), in so far as relevant, reads as follows: Article 2. Tasks of the Commission “The tasks of the Commission shall be as follows: 1) to investigate the phenomena of corruption and instances linked with it, adopt decisions on the basis of the issues being examined and control how the institutions are implementing them; 2) analyse the decisions of State and municipal institutions and agencies and enterprises, which create the conditions for corruption and crimes and other violations of the law in the economic and financial systems, to seek that such decisions be abolished; ...” Article 3. Rights of the Commission “1. The Commission shall have the right to: 1) obtain the necessary information from ... General Prosecutor’s Office, Supreme Court of Lithuania, State Control, Special Investigation Service, State Security Department and other State and municipal institutions, enterprises, agencies and organisations; ... 3) invite State officers and civil servants and other persons to meetings; ... 5) in accordance with the procedure established by laws to obtain information, which comprises official or State secrets ...” Article 6. Procedure in Respect of the Commission’s Work “2. The Commission’s hearings shall, as a rule, be held publicly. Closed hearings, which may only be attended by persons invited by the Commission, may be held as per a decision of the Commission. ...” 42. At the material time the Criminal Code read: Article 168. Unauthorised Disclosure or Use of Information About a Person’s Private Life “1. A person who, without another person’s consent, makes public [or] uses for his own benefit or for the benefit of another person information about the private life of another person, where he gains access to that information through his service or profession or in the course of performing a temporary assignment ..., shall be punished by community service, a fine, restriction of liberty, arrest or imprisonment for a term of up to three years.” Article 247. Unauthorised Disclosure of Pre-trial Investigation Data “A person who discloses pre-trial investigation data prior to the hearing of a case at a court sitting, without the authorisation of a judge, prosecutor or pre-trial investigation officer investigating the case, shall be considered to have committed a misdemeanour, and shall be punished by community service, a fine, restriction of liberty or arrest.” 43. At the material time the Code of Criminal Procedure read: Article 177. Non-disclosure of Pre-trial Investigation Data “1. Information about a pre-trial investigation shall not be made public. It may be made public only subject to a prosecutor’s authorisation, and only to such an extent as is determined permissible... 2. Where necessary, the prosecutor or the official [in charge] of the pre-trial investigation warns the participants in the [criminal] proceedings or other persons who have seen the actions performed in the pre-trial investigation proceedings that it is forbidden to make public the information from the pre-trial investigation. In such cases, a person is warned about criminal liability under Article 247 of the Criminal Code and provides a signature [confirming this].” Article 214. Order Discontinuing a Pre-trial Investigation “1. ... [T]he pre-trial investigation is discontinued by the prosecutor’s decision ... ... 6. If the pre-trial investigation material contains information about an administrative-law offence or a violation of a law provided for in other legal acts, when adopting the decision to discontinue the pre-trial investigation, the prosecutor transfers that material in accordance with the rules set out in the Code of Administrative Law Offences or rules set out in other legal acts ...” 44. In its ruling of 8 May 2000 on operational activities, the Constitutional Court held: “The legal concept of private life is linked to the state of an individual when the individual may expect privacy, or with legitimate expectations of private life. When the person carries out actions of a public nature and comprehends this, or must comprehend this or is capable of understanding this, whether at home or on other private premises, then such actions of a public nature will not enjoy protection under Article 22 of the Constitution and Article 8 of the Convention, and the person may not expect privacy. The activities of State and municipal officials linked to the implementation of functions of the State and municipal authorit[ies] and administration[s] are always of a public nature. ... The Constitutional Court notes that a person who commits criminal deeds or ones which are contrary to the law must not and may not expect privacy. The limits of protection of an individual’s private life disappear in cases when, through criminal or otherwise unlawful actions, [that individual] violates interests protected by law, [or] inflicts damage on particular persons, society or the State.” 45. In its ruling of 23 October 2002 on protection of a public figure’s private life and a journalist’s right not to disclose a source of information, the Constitutional Court held: “8. ... [P]ersonal characteristics, behaviour and certain circumstances of the private life of persons participating in social and political activities may be of importance to public matters. The public’s interest in knowing more about these persons than others has a constitutional basis. That interest would not be secured if, in every particular case, when publishing information of public importance about the private life of a person participating in social and political activities, that person’s consent was necessary. Thus, the media may inform the public about such a person’s private life without [that person’s] consent, inasmuch as personal characteristics, behaviour and certain circumstances of that person’s private life may be of importance to public matters, and therefore the information published is of public importance. The person participating in social and political activities [must] anticipate more attention from the public and the media. Such persons, as a rule, are called public figures. Persons who, because of the office that they hold or the nature of the work that they perform, participate in public life should primarily be categorised as public figures. These are politicians, State and municipal officials [and] heads of public organisations. Other persons may also be considered public figures if their activity is of importance to public affairs.” 46. By its ruling of 8 July 2016 on the procedure for adopting legal acts of the Government, and in the context of the adoption of Government Resolution no. 1025, the Constitutional Court held (summary by the Constitutional Court; see also Povilonis, cited above, § 67): “In the constitutional justice case at issue, [which was] initiated subsequent to the petition of the President of the Republic requesting an investigation into whether Government Resolution (no. 1025) of 23 September 2015 – whereby the Special Conditions for the Use of Land and Forests had been amended – was compliant with the Constitution and laws, in view of the procedure by which it had been adopted, the Constitutional Court ... noted that under the Constitution, legal acts must be passed in accordance with the established procedural law-making requirements, including the requirements established by the law-making subject itself. Institutions of State authority must also follow the requirements of publicity and transparency [in respect] of law-making procedures, deriving from the constitutional principle of responsible governance, which is to be interpreted in conjunction with the imperative obliging State institutions to serve the people ... Compliance with these requirements is an essential condition for public trust in the State and law, as well as for the responsibility of State authorities towards the public... While interpreting ... the Constitution ... the Constitutional Court has noted on more than one occasion that, when passing legal acts, the Government must observe the laws that are in force, including those establishing the procedure for adopting legal acts. [They] must follow the procedure for the drafting, assessment, coordination and consideration of Government resolutions, as well as [the procedure] for voting on them, which is established by laws. ... Under the Constitution, the stages and rules of the procedure for the adoption of legal acts of the Government as established in law and other legal acts must be observed while any draft legal act of the Government is being prepared, irrespective of whether this legal act is aimed at amending (correcting) the legal regulation, establishing a new one, or annulling the effective one. ... The part of the case concerning the disputed Government Resolution’s [no. 1025] compliance with the Constitution and laws, in view of the procedure for its adoption, was dismissed, with regard to the fact that this Resolution was annulled by the Government Resolution of 2 May 2016 [in an effort] to dispel doubts as to [the disputed resolution’s] legitimacy. ... After the legal act in question had been removed from the legal system, the investigation into its compliance with the Constitution and laws, in view of the procedure for its adoption, would be an end in itself. The Constitutional Court noted that, as was obvious from the material of the case, in the course of adopting the Government Resolution in question, certain violations of the procedure for the preparation, coordination, consideration and adoption of legal acts of the Government could have been committed; additionally, according to the Constitutional Court, it was not obvious from the data in the case that there had been any exceptional circumstances objectively justifying the urgent placement – not agreed beforehand with the competent institutions – of the draft Resolution in question on the agenda of the Government’s sitting without the ordinary procedure established in the Rules of Procedure of the Government being followed.” 47. On 12 December 2018 the enlarged chamber of the Supreme Court delivered a ruling in case no. e3K-7-471-403/2018. The case concerned a complaint by a business entity which had been lodged against the State Security Department in connection with information gathered under the Law on Intelligence and provided by the State Security Department to the Seimas Committee on National Security and Defence. The business entity had attempted to start civil proceedings for defamation of its business reputation, arguing that the information which the State Security Department had provided to the Seimas committee had been revealed to the media. The first-instance and appellate courts had refused to accept the business entity’s claim for examination. The Supreme Court, however, overturned those court decisions. The cassation court highlighted that the existing legal regulation, pursuant to which a Seimas committee had oversight of intelligence agencies and the Seimas Ombudsmen investigated complaints against intelligence officers’ actions violating human rights or freedoms, failed to ensure effective and efficient protection of the rights of the individual (in that case, professional reputation). Referring to the case-law of the Constitutional Court, and also relying on the Court’s case-law regarding Article 6 § 1, the Supreme Court also emphasised that the right to access to court was absolute. 48. The Council of Europe Resolution (97) 24 on the Twenty Guiding Principles for the Fight Against Corruption, adopted by the Committee of Ministers on 6 November 1997, urges the States to ensure that the media have the freedom to receive and impart information on matters relating to corruption, subject only to limitations or restrictions which are necessary in a democratic society. THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 49. The applicant alleged, in particular, that the release into the public domain of transcripts of an intercepted telephone call between him and a mayor had amounted to a breach of Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private ... life ... and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” AdmissibilityThe parties’ submissions The parties’ submissions The parties’ submissions (a) The Government 50. At the outset, the Government wished to point out that the applicant had not complained before the Court that his telephone conversation with R.M. had been intercepted unlawfully. Rather, the applicant had claimed a violation of his right to respect for his private life and correspondence, on account of the disclosure of that conversation to the Seimas Anti-Corruption Commission and its subsequent wide dissemination to the public. The Government also submitted that the applicant, if he had wished to do so, had been able to contest the lawfulness of the criminal-intelligence actions. 51. The Government also pointed out that in order to seek redress for the alleged violation of his right to respect for private life and correspondence, the applicant had availed himself of only criminal-law remedies. He had not resorted to complaints to the institutions which monitored journalistic ethics, such as the Inspector of Journalistic Ethics or the Public Information Ethics Commission. 52. Considering that criminal liability as an ultima ratio should be imposed not for every disclosure of private information, but only in cases of the most severe violations of private life, in the applicant’s case the effective protection at domestic level had not been reduced to only criminal measures. Thus, the applicant could have successfully sought the protection of his rights under civil law, by starting proceedings for breach of privacy against the media or the journalist in question. Besides, the applicant could also have sought compensation for damage from the State, for the allegedly improper handling of the pre-trial investigation material. 53. In the alternative, the Government considered that the complaint was manifestly ill-founded, as the applicant had not experienced sufficiently serious adverse effects impacting his private life or correspondence for his complaint to raise an issue under Article 8 of the Convention (see also paragraph 73 below). (b) The applicant 54. The applicant considered that the Government’s arguments as to the effectiveness of the remedies proposed by them were devoid of substance. 55. Firstly, as to the Government’s suggestion that the applicant could have sued the intelligence agencies, it had to be emphasised that by the ruling of 12 December 2018 the Supreme Court had established that the current legal regulation – which stated that a Seimas committee had parliamentary oversight of intelligence agencies, and the Seimas Ombudsmen investigated complaints against the actions of intelligence officers which possibly violated human rights or freedoms – failed to ensure an effective and efficient defence of the rights of the individual that could be protected in court (see paragraph 47 above). It followed that, insofar as it concerned the claim for damages against the intelligence agencies, the applicant had had no effective way in which to defend his rights before the national courts. 56. Secondly, the applicant viewed the Government’s suggestion that he should have instituted proceedings against the journalist in question as an effort to shift onto the media the blame for publishing the information that had come to their knowledge. However, it was not the press which had failed to carry out its duty to prevent the disclosure (especially the disclosure to the media) of the applicant’s telephone conversation that had been recorded during the criminal-intelligence operation. Undoubtedly, it was the State and not the media which was responsible for such an event. 57. Thirdly, since the applicant’s main complaint concerned the fact that the intelligence information had been revealed to the media and had not been protected from public exposure, a complaint to the institutions which monitored journalists’ ethics would likewise have been irrelevant. The institutions referred to by the Government (see paragraph 51 above) had not had the capacity to guarantee the security of intelligence-related information. In other words, the applicant’s issue was not with the media which had published the information that had been provided, but rather with the State authorities whose actions had resulted in the violation of his rights. Therefore, the action of addressing any institutions with a complaint regarding the journalist’s actions had to be viewed as irrelevant to the issue raised in the application to the Court. 58. Fourthly, the applicant wished to highlight that his efforts to lodge complaints with the prosecutors and the domestic courts in respect of the matter of the disclosure of his telephone communications had been unsuccessful. 59. Lastly, the applicant noted that in principle there was no reason why the notion of “private life” should be taken to exclude professional activities, and that professional life was part of the zone of interaction between a person and others which, even in a public context, might fall within the scope of “private life” (he cited Oleksandr Volkov v. Ukraine, no. 21722/11, §§ 165-67, ECHR 2013, and Mółka v. Poland (dec.), no. 56550/00, ECHR 2006 ‑ IV). In his case, the effect of disclosure had been significant. The Court’s assessment 60. The Court notes at the outset that the applicant has fully exhausted the criminal-law avenue by having pursued proceedings regarding the disclosure of his telephone conversation (see paragraphs 17-33 above). Whilst accepting that, regarding cases concerning alleged breach of privacy, a criminal-law remedy is not always required and the civil-law nature remedies could be seen as sufficient (see, mutatis mutandis, Söderman v. Sweden [GC], no. 5786/08, § 85, ECHR 2013), the Court observes that in the present case the criminal proceedings were opened in respect of not only the alleged breach of the applicant’s privacy, but also another criminal act, namely the disclosure of the pre-trial investigation material to the media (see paragraph 21 above). Accordingly, the Court cannot find that the criminal-law avenue was entirely inappropriate as a remedy for the applicant’s complaint, especially as the applicant’s complaints were accepted for examination and scrutinised by the prosecutors and the courts. 61. The Court also takes note of the applicant’s argument that the actions of intelligence agencies could not be challenged in court, at least until the very recent ruling by the Supreme Court (see paragraph 47 above), an argument which finds support in that ruling. The Court therefore cannot hold that the applicant, who lodged his application with the Court before that ruling by the Supreme Court, was obliged to pursue proceedings against the intelligence agencies. 62. The Court also shares the applicant’s view (see paragraph 57 above) that, given the circumstances of his case and his opinion that State institutions were responsible for his grievance, he was not obliged to lodge a complaint with the bodies which supervised the activities of the media. 63. The Court observes that the Government did not explicitly argue that Article 8 of the Convention was not applicable, as such, to the applicant’s complaint. Rather, they submitted that the disclosure of the applicant’s telephone conversation with the mayor had had a rather limited impact on his right to respect for private life and correspondence, because the content of that intercepted conversation had been related to purely public matters (see paragraph 53 above and paragraph 73 below). Be that as it may, the Court reiterates that Article 8 of the Convention protects the confidentiality of “private communications”, whatever the content of the correspondence concerned, and whatever form it may take. This means that what Article 8 protects is the confidentiality of all the exchanges in which individuals may engage for the purposes of communication (see Frérot v. France, no. 70204/01, § 53, 12 June 2007; Michaud v. France, no. 12323/11, § 90, ECHR 2012; and, more recently, Klaus Müller v. Germany, no. 24173/18, § 37, 19 November 2020). Article 8 of the Convention also covers calls made from office telephones (see Halford v. the United Kingdom, 25 June 1997, § 44, Reports of Judgments and Decisions 1997 ‑ III). Furthermore, Article 8 of the Convention does not use, as it does for the word “life”, any adjective to qualify the word “correspondence”. Indeed, the Court has already held that, in the context of correspondence in the form of telephone calls, no such qualification is to be made (see Huvig v. France, 24 April 1990, §§ 8 and 25, Series A no. 176 ‑ B, and Niemietz v. Germany, 16 December 1992, § 32, Series A no. 251 ‑ B). Accordingly, and recalling that the question of applicability is an issue of the Court’s jurisdiction ratione materiae, and that therefore the general rule of dealing with applications should be respected and the relevant analysis should be carried out at the admissibility stage (see Denisov v. Ukraine [GC], no. 76639/11, §§ 92 and 93, 25 September 2018), the Court finds that Article 8 of the Convention is applicable to the applicant’s complaint about disclosure of the content of his telephone conversation with R.M. 64. This complaint is therefore neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions (a) The applicant 65. The applicant complained that the disclosure to the media of the transcripts of his telephone conversation had infringed his right to respect for his correspondence and had affected his right to respect for his private life. 66. Initially, the applicant could not have known that his telephone conversation was being intercepted. Moreover, he had never been warned or even suspected that the transcripts of such a conversation would afterwards be disclosed to the public, without any warning or grounds. Likewise, it was irrelevant to examine the fact that, in the present case, the applicant’s right to respect for privacy and correspondence had been affected by the disclosure of only one telephone call, rather than by the systematic monitoring of his communications at his workplace. Nor should such a fact be considered a mitigating circumstance. 67. Whilst not debating his status as a public figure, the applicant wished it to be noted that even a public figure had a right to enjoy a certain degree of privacy. Even if the Government contended that he had unreasonably expected a “high degree of privacy” (see paragraph 73 below), in fact he had been deprived of any privacy whatsoever. Disclosing transcripts to the media of the telephone conversation in question, which had been recorded in the course of criminal-intelligence activities, could not be assessed as “limiting” privacy in a manner measurable by degree, as in fact it had to be considered as (completely) denying his privacy as regards that particular telephone conversation. 68. The applicant further contested that the interference had met the requirements of Article 8 § 2 of the Convention. 69. Firstly, he was dissatisfied with the prosecutor’s decision to permit the examination of the information, gathered during the secret surveillance, at a public hearing of the Seimas Anti-Corruption Commission, where the content of that conversation was disclosed (see paragraph 15 above). For the applicant, such decision lacked a legal basis and contradicted the imperative provisions set out in Code of Criminal Procedure regarding the prohibition on releasing information gathered during secret surveillance into the public domain. Additionally, the disclosure by members of the Seimas Anti-Corruption Commission of the material in the criminal investigation file to the media had not had a basis in law, since Article 177 of the Code of Criminal Procedure explicitly prohibited the disclosure of pre-trial investigation material in the absence of a prosecutor’s authorisation (see paragraph 43 above), and there had been no such authorisation in his case. Besides, Article 161 of that Code imposed a requirement that all the information gathered about a person’s private life be immediately destroyed when criminal proceedings were terminated. The applicant thus argued the data collected during the pre-trial investigation in question, as well as the information relating to his intercepted telephone conversation, should have been destroyed immediately after the prosecutor had decided to terminate the pre-trial investigation, or at least kept secret if it had then been transferred to assist with the investigation of other potential crimes under Article 214 § 6 of the Code. Yet, notwithstanding the fact that neither the applicant nor any other person had been charged with a crime in that criminal investigation, on the pretext of fighting corruption, the information gathered via the interception of telephone communications had been made public, which had resulted in the applicant’s intercepted telephone conversation being published and republished on the biggest news portals in the country, as well as aired on television channels. 70. Secondly, the Government had not provided any proof or reasonable explanation as to how the disclosure of his intercepted telephone conversation to the media had helped or could have helped prevent crime or protect the rights and freedoms of others, for he had never been a suspect in the criminal proceedings. There had been no public interest in disclosing his secretly recorded telephone conversation, because during the pre-trial investigation in question the prosecutor had established that no crime had been committed (see paragraph 12 above). Neither the applicant nor any other person involved in that investigation had been charged with any criminal act. Thus, there were no objective grounds to assert that disclosing the material from a discontinued criminal investigation could achieve one of the aims listed in Article 8 § 2 of the Convention. 71. That being so, he did not question whether or not it had been legitimate to intercept his telephone conversation, or lawful for the prosecutor to transfer the transcript of that conversation to the commission for further investigation. However, the examination of his telephone conversation could have been carried out in a closed hearing of the Seimas Anti-Corruption Commission, rather than in a public one, and the former option would not have been a threat to public safety or made the parliamentary investigation less effective. The applicant had not been informed about the Seimas Anti-Corruption Commission hearing prior to that hearing taking place, and consequently he could not have asked for a closed hearing. 72. Lastly, the applicant wished to highlight that the Court had already found against the Government when, in a case which he considered to be similar, it had held that information about a pre-trial investigation (an intercepted telephone conversation) had to remain confidential. The conversation in question had become known to the public (the media), which had not been in accordance with the law and had given rise to a violation of Article 8 of the Convention; the applicant referred to Drakšas v. Lithuania (no. 36662/04, § 60, 31 July 2012). Therefore, one could conclude that the Government had repeatedly failed to comply with their duties under the Convention. (b) The Government 73. The Government took the view that in the present case it could not be considered that the applicant had experienced sufficiently serious adverse effects impacting his private life or correspondence for his complaint to raise an issue under Article 8 of the Convention. Admittedly, a person might expect a certain degree of privacy, even at work. However, the applicant, as the Prime Minister – a person who, in addition to being involved in purely public matters at the workplace, was also under constant supervision for security reasons – could not have expected a “high degree of privacy”. Furthermore, besides the fact that the intercepted conversation had been related to a telephone call to the applicant’s work telephone number, the content of that intercepted conversation had been related to purely public matters – the legislative process regarding the adoption of a certain resolution by the Government. Given that the content of the disclosed telephone call had been related to the applicant’s official duties, under the Code of Conduct for State Politicians, it did not fall within the scope of the politician’s private life. Another point to note was that the present case was not related to any systematic monitoring of the applicant at his workplace, as there had been only one telephone call which had been lawfully intercepted in the course of the authorised check on R.M.’s telephone communications. What was of the utmost importance was the fact that the applicant himself did not consider that his conversation with R.M. had been informal or related to private issues. Moreover, there had been no negative consequences, such as the applicant incurring disciplinary liability on account of the fact that the media had reported on the pre-trial investigation, an investigation which had been instituted in respect of the actions of other persons. Lastly, in so far as the applicant alleged that there had been negative consequences for the Lithuanian Social Democrats Party or the Government (see paragraph 18 above), those could not be relied on for the purposes of the current application, since any alleged violation had to be directly related to the applicant as the victim. 74. If the Court were to find that there had been an interference with the applicant’s right to respect for his correspondence and his private life, the Government considered that the interference had met the requirements under the second paragraph of Article 8. 75. The relevant information had been lawfully obtained under the rules regulating criminal intelligence, and subsequently it had been declassified in order to be used for the purposes of instituting a pre-trial investigation into a case of alleged political corruption in the context of the adoption of the Government resolution in question. It had been legitimate to include the applicant’s telephone conversation in the text of the prosecutor’s decision to terminate the pre-trial investigation. Further, the Code of Criminal Procedure provided for a prosecutor’s right to transfer such material to the competent authorities upon a pre-trial investigation being terminated, should the prosecutor consider that an administrative or other offence might have been committed. The Anti-Corruption Commission had a statutory right to receive and publicly examine material from criminal cases which related to alleged acts of corruption. One had to bear in mind that whilst it was reasonable to expect that purely personal information which had no relevance to a criminal case had to be destroyed, this tenet should not be applied too broadly, in order not to undermine the possibilities of the effective administration of justice. 76. This was precisely the situation in the instant case, and the prosecutor had thus reasonably transferred the material to the Anti-Corruption Commission without imposing the requirement of confidentiality. In these circumstances, the disclosure of the content of the prosecutor’s decision at the meeting of the commission, which had resulted in the applicant’s telephone conversation with R.M. being widely disseminated, had not amounted to a breach of the Convention. The Government compared the instant case to the facts in Drakšas (cited above, § 61), where the Court had also found no violation of the Convention due to the disclosure of that applicant’s intercepted conversations within the framework of proceedings before the Constitutional Court. 77. As to the aims of the disclosure of the pre-trial investigation material, the relevant information had been gathered to ensure the proper administration of justice and investigate acts related to corruption, the latter aim also being within the purview of the examination by the Seimas Anti-Corruption Commission. Accordingly, any alleged interference with the applicant’s rights under Article 8 of the Convention had been imposed to prevent crimes, and to ensure the protection of the rights and freedoms of others. 78. As to the hearing of the Seimas Anti-Corruption Commission, although the law provided for the possibility to ask for a closed hearing, in this case, no such request had been submitted. The press had therefore been allowed to be present. The Government also pointed out that in accordance with the Code of Criminal Procedure, a prosecutor was vested with the authority to take a decision concerning the scope of the confidentiality of pre-trial investigation material. 79. The Government further referred to the guiding principles for the fight against corruption, adopted by the Committee of Ministers, whereby it was recommended that it should be ensured that the media have the freedom to receive and impart information on matters relating to corruption (see paragraph 48 above). In that context, not only did the media have the task of imparting such information, but the public also had the right to receive information about corruption-related issues. In certain circumstances, society’s right to information on the behaviour and activities of public figures prevailed over an applicant’s right to protection of public image (the Government referred to Craxi v. Italy (no. 2) (no. 25337/94, § 64, 17 July 2003). 80. Despite the fact that no person had been convicted in relation to the circumstances of the adoption of Government Resolution no. 1025, the Constitutional Court had nevertheless identified that certain violations could have been committed in respect of the preparation, coordination and adoption of legal acts (see paragraph 46 above). In the Government’s view, it could not therefore be held that the investigation into the circumstances of the adoption of that legal act had been arbitrary, or that there had been no reasonable legal grounds for instituting the relevant proceedings. 81. In sum, the applicable domestic law indicated with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities to disclose the content of the prosecutor’s decision to terminate a pre-trial investigation, and when subsequently investigating that information within a parliamentary inquiry. There had been a pressing social need for the public to be informed about the ongoing investigation into corruption-related acts involving senior political leaders, thus the parliamentary investigation had reasonably been held in public with the participation of the press. Taking into account that the disclosed information had not been related to any of the applicant’s private issues, and in the absence of any severe individual consequences, any restriction on the applicant’s right to respect for his private life had been proportionate. The Court’s assessment 82. The Court observes that the applicant complained that the State had failed to protect his correspondence and that release into public domain of the transcript of his telephone conversation with R.M. had weighed heavily on his private life. (a) General principles (i) As to correspondence and secret monitoring of communications 83. The Court reiterates that telephone calls received on private or business premises are covered by the notions of “private life” and “correspondence” within the meaning of Article 8 § 1 (see Amann v. Switzerland [GC], no. 27798/95, § 44, ECHR 2000 ‑ II). For the purpose of delimiting the scope of protection afforded by Article 8 against arbitrary interference by public authorities, the Court also held that the covert taping of telephone conversations falls within the scope of Article 8 in both aspects of the right guaranteed, namely respect for private life and correspondence (see P.G. and J.H. v. the United Kingdom, no. 44787/98, § 59, ECHR 2001 ‑ IX). 84. The Court has likewise held that files gathered by security services on a particular individual fall within the scope of Article 8, even where the information has not been gathered by any intrusive or covert method (see Rotaru v. Romania [GC], no. 28341/95, §§ 43-44, ECHR 2000-V, and P.G. and J.H. v. the United Kingdom, cited above, § 57 ). (ii) As to private life 85. The Court reiterates that “private life” is a broad term not susceptible to exhaustive definition. It would be too restrictive to limit the notion of “private life” to an “inner circle” in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle (see Fernández Martínez v. Spain [GC], no. 56030/07, § 109, ECHR 2014 (extracts), with further references). 86. There is no reason of principle why the notion of “private life” should be taken to exclude professional activities (see Bigaeva v. Greece, no. 26713/05, § 23, 28 May 2009). Restrictions on an individual’s professional life may fall within Article 8 where they have repercussions on the manner in which he or she constructs his or her social identity by developing relationships with others (see Bărbulescu v. Romania [GC], no. 61496/08, § 71, 5 September 2017). In addition, professional life is often intricately linked to private life, especially if factors relating to private life, in the strict sense of the term, are regarded as qualifying criteria for a given profession. Professional life is therefore part of the zone of interaction between a person and others which, even in a public context, may fall within the scope of “private life” (see Fernández Martínez, cited above, § 110, and the case-law cited therein). 87. The Court has also held that Article 8 of the Convention “protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world”. The notion of “private life” does not exclude in principle activities of a professional or business nature. It is, after all, in the course of their working lives that the majority of people have a significant opportunity to develop relationships with the outside world. Therefore, restrictions imposed on access to a profession have been found to affect “private life”. Likewise, dismissal from office has been found to interfere with the right to respect for private life. Lastly, Article 8 deals with issues of protection of honour and reputation as part of the right to respect for private life (see Oleksandr Volkov, cited above, § 165, and case-law cited therein). (b) Application of the general principles to the circumstances of the instant case (i) As to existence of interference 88. The Court notes that, once a pre-trial investigation regarding possible political corruption in connection with territorial planning had been opened, a court authorised the monitoring of R.M.’s telephone communications, as a result of which the Special Investigation Service intercepted the conversation between R.M. and the applicant (see paragraphs 7 and 8 above). The Court takes the view that transmitting that data to other State authorities, such as, initially, to the prosecutor (see paragraph 12 above) and, subsequently, to the Seimas Anti-Corruption Commission (see paragraph 13 above), and the authorities’ use of that data and its release into public domain, including the public scrutiny of the telephone transcript at the Anti-Corruption Commission’s hearing (see paragraphs 15 and 16 above) – which enlarged the group of persons with knowledge of the intercepted personal data, – constituted an interference with the applicant’s rights under Article 8 (see, mutatis mutandis, Weber and Saravia v. Germany (dec.), no. 54934/00, § 79, ECHR 2006 ‑ XI, and the case-law cited therein; see also Craxi (no. 2), cited above, § 57 ). (ii) Whether the interference was justified 89. Such an interference is justified by the terms of paragraph 2 of Article 8 only if it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is “necessary in a democratic society” in order to achieve the aim or aims (see Weber and Saravia, cited above, § 80). (α) Whether the interference was “in accordance with the law” 90. The Court reiterates that the expression “in accordance with the law” within the meaning of Article 8 § 2 requires, firstly, that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must, moreover, be able to foresee its consequences for him, and compatible with the rule of law (see, among other authorities, Kruslin v. France, 24 April 1990, § 27, Series A no. 176-A; Huvig, cited above, § 26, Series A no. 176-B; and Perry v. the United Kingdom, no. 63737/00, § 45, ECHR 2003 ‑ IX). 91. The Court notes at the outset that the applicant did not dispute that the interception of his telephone conversation had been lawful, or that the prosecutor had been entitled to transfer that conversation to the Anti-Corruption Commission (see paragraph 71 above). Rather, he contended that the State authorities – the prosecutor and the Anti-Corruption Commission – had not properly protected that information as they had been required to by law (see paragraph 69 above). 92. The Court firstly turns to the applicant’s grievance (see paragraph 69 above) that the information from the criminal investigation file was not properly protected by the prosecutor, when transferring the pre-trial investigation materials to the Anti-Corruption Commission. The Court observes that, when requested to do so by the Chairman of the Seimas Anti-Corruption Commission, who acted in compliance with Article 4 § 1 (1) of the Law on the Seimas Provisional Investigation Commissions, the prosecutor sent to that commission his decision to terminate the pre-trial investigation (see paragraphs 11, 13, 31 and 40 above). The Court also does not overlook the fact that, having considered that the materials gathered during the pre-trial investigation had elements demonstrating possible breach of other laws, the prosecutor also sent a copy of his decision to the Chief Official Ethics Commission, which was the prosecutor’s right and obligation under Article 214 § 6 of the Code of Criminal Procedure (see paragraphs 14 and 43 above; see also, more recently and, mutatis mutandis, Adomaitis v. Lithuania, no.14833/18, § 83, 18 January 2022). That being so, and also taking note of the Lithuanian authorities’ subsequent conclusion that by transferring that material to the Anti-Corruption Commission and by not warning it that the material should not be made public the prosecutor had not breached the rules of criminal proceedings (see paragraph 26 above), the Court cannot but reject the applicant’s argument that the information gathered during the pre-trial investigation had not been protected by the prosecutor. At this juncture the Court also reiterates its constant case-law to the effect that it is in the first place for the national authorities to interpret and apply domestic law. The scope of the Court’s task is subject to limits inherent in the subsidiary nature of the Convention, and it cannot question the way in which the domestic authorities have interpreted and applied national law, except in cases of flagrant non‑observance or arbitrariness, which the Court cannot discern in the present case (see, mutatis mutandis, Elita Magomadova v. Russia, no. 77546/14, § 59, 10 April 2018, and the case-law cited therein). It notes that the prosecutor’s findings set out in paragraph 26 above have never been quashed by the domestic courts (see, in particular, paragraph 28 above). 93. Examining further, the Court observes that the content of the applicant’s conversation with R.M. was disclosed in the framework of the Anti-Corruption Commission’s proceedings regulated by the domestic law (see paragraphs 40 and 41 above), having obtained authorisation for use of that material from a prosecutor, who had not imposed any restrictions on the disclosure of the pre-trial investigation decision (see, mutatis mutandis, Drakšas, cited above, §§ 27 and 61); he had not requested that the Anti-Corruption Commission’s hearing, which as a rule is public (see paragraph 25 above; see also Article 6 § 2 of the Law on the Seimas Anti-Corruption Commission, cited in paragraph 41 above) be closed either. As pointed out by the prosecutor and the Vilnius City District Court, neither the members of the Seimas Anti-Corruption Commission nor the journalist V.D. had been participants in the criminal proceedings, to be liable for disclosure of the content of the telephone conversation in question (see paragraphs 25 and 31 above), and, in the absence of any clear evidence of arbitrariness, the Court again does not see any reasons to depart from the domestic authorities’ conclusions (see, among many authorities, García Ruiz v. Spain [GC], no. 30544/96, §§ 28-29, ECHR 1999‑I). The Court accepts that the interpretation of the relevant legislation by the prosecutor and the Vilnius City District Court in the applicant’s case was not such as to render the contested action – the disclosure of the content of the applicant’s telephone conversation with R.M. at the Anti-Corruption Commission’s hearing – unlawful in Convention terms. Lastly, the Court also finds that the interference had a basis in law, which also was accessible and foreseeable. The finding that the applicant should have been able to foresee that his actions could be scrutinised is clear given the applicant’s professional occupation – at the relevant time he was the Prime Minister – and the legal regulation on the publicity and transparency of public service, as in force and accessible at the relevant time (see paragraphs 38 and 39 above; see also the Constitutional Court’s position on the requirements of publicity and transparency in adoption of legal acts, cited in paragraph 46 above). 94. In the light of the foregoing, the Court holds that the interference with the applicant’s right to respect for his correspondence, and any ensuing impact on his right to privacy, was “in accordance with the law” (see, mutatis mutandis, Drakšas, cited above, § 55). (β) Legitimate aim 95. The Court recalls that both the pre-trial investigation in criminal proceedings wherein the applicant’s telephone conversation had been intercepted (see paragraph 7 above), and the subsequent scrutiny of that telephone conversation at the Anti-Corruption Commission’s hearing (see paragraphs 15 and 16 above) sought to establish whether the rules for the adoption of legal acts had been breached when adopting Government Resolution no. 1025 and whether that Resolution had been conducive to upholding the territorial planning decisions, which, as it was suspected, were in flagrant breach of the public interest (see paragraphs 7 and 10 above; for more detail, see Povilonis v. Lithuania (dec.), no. 81624/17, §§ 11, 16, 67 and 68, 7 April 2022). This element had been underlined by the prosecutors and the court (see paragraphs 24, 30 in fine and 32 above); the fact that to dispel doubts as to the legitimacy of Government Resolution no. 1025 it had been eliminated from the Lithuanian legal system had been acknowledged by the Constitutional Court (see paragraph 46 above). Accordingly, the Court finds that the interference with the applicant’s right to respect for his correspondence, and any possible subsequent impact on his private life, as stemming from disclosure of that telephone conversation, was aimed at the protection of the rights and freedoms of others – in pursuance of Article 8 paragraph 2 of the Convention. Besides, the Court also gives weight to the Government’s suggestion that interference with the applicant’s rights under Article 8 of the Convention was aimed at the prevention of disorder and crime (see paragraph 77 above; for the context, see also Povilonis, cited above, §§ 50 et seq. ). In particular, under Article 2 of the Law on the Seimas Anti-Corruption Commission, prevention of corruption-related acts is one of its aims (see paragraph 41 above). (γ) Necessity of the interference 96. Turning to the conversation at issue which was intercepted and disclosed (see paragraph 8 above), the Court cannot but note that it undoubtedly concerned the matter of the adoption of the relevant Government Resolution. The Court also finds it plain that the conversation contained no elements related to the applicant’s private life, such as questions relating to his health (see Biriuk v. Lithuania, no. 23373/03, § 39, 25 November 2008) or sexual life (see Beizaras and Levickas v. Lithuania, no. 41288/15, § 109, 14 January 2020), or similar matters, except for the question of reputation, which the Court will revert to below. The same conclusion was reached by the prosecutor and the domestic courts which examined the applicant’s complaint (see paragraphs 23 and 30 above). Indeed, when questioned by the domestic authorities, the applicant himself specified that he had a working relationship with the mayor of Druskininkai, R.M., and that no private matters had been discussed during the conversation in question (see paragraph 9 above). The Court also observes and gives weight to the fact that when examining the applicant’s complaint of the breach of his right to privacy, the domestic court referred to the Court’s case-law on the protection of private life and carefully balanced the competing interests in question, namely the applicant’s reputation and honour on the one hand, and the right of the press to report on matters of public interest on the other (see paragraph 30 above). It must also be emphasised that according to the Court’s constant case-law, where the national authorities have weighed up the interests at stake in compliance with the criteria laid down in the Court’s case-law, weighty reasons are required if the Court is to substitute its view for that of the domestic courts (see Bédat v. Switzerland [GC], no. 56925/08, § 54, 29 March 2016). It is clear that there are no such reasons in the present case. 97. The Court also has regard to the Constitutional Court’s practice whereby the activities of State and municipal officials linked to the implementation of functions of the State or municipal authorities and administrations are always of a public nature. Furthermore, actions of a public nature do not enjoy protection under Article 8 of the Convention, and a person may not expect privacy (see paragraph 44 above). In the Court’s view, the matter of the adoption of the Government resolution was precisely the implementation of State powers to adopt legal acts, and thus the circumstances surrounding the adoption of that resolution fell squarely within the notion of actions of a public nature. Moreover, even if the applicant had complained that the disclosure of his telephone conversation had had an impact on his reputation, the Court refers to the Constitutional Court’s position that the personal characteristics and behaviour of persons participating in social and political activities, in addition to certain circumstances of their private life, may be of importance to public matters (see paragraph 45 above). 98. In the context of Article 8 of the Convention the Court has also examined whether an attack on a person attained a certain level of seriousness and was made in a manner causing prejudice to the personal enjoyment of the right to respect for one’s private life (see, mutatis mutandis, Delfi AS v. Estonia [GC], no. 64569/09, § 137, ECHR 2015, with further references; see also Denisov, cited above, §§ 110-14, 25 September 2018). As the Grand Chamber has held, applicants are obliged to identify and explain the concrete repercussions on their private life and the nature and extent of their suffering, and to substantiate such allegations in a proper way (see Denisov, cited above, § 114). 99. The Court acknowledges the applicant’s argument that the release into the public domain of his telephone conversation had an impact on his reputation (see paragraph 18 above). It does not dispute his statements that he suffered negative experiences when communicating with others after the transcript of the telephone conversation had been disclosed by the media. Likewise, the Court cannot turn a blind eye to the fact that the applicant has been a professional politician for decades (see paragraph 5 above), and it goes without saying that reputation-related criteria play an important role in a politician’s life. 100. Be that as it may, the applicant did not point to any concrete and tangible repercussions which the media’s disclosure of that telephone conversation had had on his private life. Therefore, his situation must be contrasted with those that the Court has examined in other cases, such as Oleksandr Volkov (cited above, § 166), where the applicant, a judge, had been dismissed from judicial office, which the Court found had affected a wide range of his relationships with other persons, including relationships of a professional nature. In the Oleksandr Volkov judgment, the Court also found that that applicant’s dismissal had had an impact on his “inner circle”, as the loss of his job must have had tangible consequences for his material well-being and that of his family. Moreover, the reason for the applicant’s dismissal, namely breach of judicial oath, suggested that his professional reputation had been affected (ibid.). There are clearly no such considerations in the present case. Likewise, in Polyakh and Others v. Ukraine (nos. 58812/15 and 4 others, §§ 208 and 209, 17 October 2019), the Court found that the applicants – who had not merely been suspended, demoted or transferred to positions of lesser responsibility, but dismissed and excluded from the civil service altogether, losing all their remuneration with immediate effect – had suffered very serious consequences as regards both their capacity to establish and develop relationships with others and their social and professional reputation, and that this had affected them to a very significant degree. 101. In the instant case, however, the disclosure of the telephone conversation did not result in, for example, the applicant’s dismissal from the post of Prime Minister, or any other sanctions against him. In fact, the applicant was not convicted and the Chief Official Ethics Commission established nothing unethical in the actions of the persons mentioned in the prosecutor’s decision to discontinue the criminal proceedings (see paragraphs 34 and 35 above). The Court considers that those facts and findings alleviated the applicant’s situation to a certain extent. Besides, the Court also has regard to the Government’s argument that Government Resolution no. 1025 had been annulled, so that any associated flaws were eliminated from the Lithuanian legal system (see paragraphs 46 and 80 above). In the Court’s view, this gives weight to the Government’s argument that the press had a right to learn of and report a possible wrongdoing (see paragraph 79 above), and the Court has already referred to the importance of public scrutiny in cases of possible political corruption (see paragraph 95 above). At this juncture, it also observes that the applicant laid the blame for the disclosure of his intercepted telephone conversation not on the press, but on the State authorities which should have kept that material confidential (see paragraph 57 above). 102. In the light of the above, and with regard to the applicant establishing and maintaining relationships with others, the Court finds that even if his reputation among his colleagues was affected by the disclosure of his telephone conversation, there are no factual grounds, let alone evidence, which he has put forward that would indicate that such an effect was so substantial as to have constituted a disproportionate interference with his rights guaranteed by Article 8 of the Convention (compare J.B. and Others v. Hungary (dec.), no. 45434/12 and 2 others, §§ 132-33, 27 November 2018). (iii) Conclusion 103. It follows that there has been no violation of Article 8 in this case as regards the State’s obligation to protect the confidentiality of the applicant’s correspondence and respect for his private life. | The Court held that there had been no violation of Article 8 (right to respect for private life and correspondence) of the Convention in respect of the applicant, finding that, even if his reputation among his colleagues had been dinted by the disclosure of his telephone conversation, there were no factual grounds, let alone evidence, to indicate that it had been affected to a disproportionate degree. The Court noted in particular that the applicant had not pointed to any concrete and tangible repercussions which the media’s disclosure of the telephone conversation had had on his private life, all the more so as he had not been convicted of anything and the Chief Official Ethics Commission had established nothing untoward in the conversation. It also reiterated the importance of public scrutiny in cases of possible political corruption. |
707 | Dissolution or prohibition of political parties or associations | II. RELEVANT DOMESTIC LAW A. Legal provisions on political parties 28. The status and activities of political parties are governed by the Political Parties Act (Federal Law no. 95-FZ of 11 July 2001), the Non-Profit Organisations Act (Federal law No. 7-FZ of 12 January 199 6) and the Registration of Legal Entities Act ( Federal Law no. 129-FZ of 8 August 2001 ). 1. Requirements of minimum membership and regional representation 29. Membership of a political party shall be voluntary and individual. Citizens of the Russian Federation who have attained the age of eighteen may be members of a political party. Foreign citizens, stateless persons, and Russian nationals who have been declared incapable by a judicial decision may not be members of a political party. Admission to membership of a political party is decided upon on the basis of a written application by the Russian Federation citizen, in accordance with the procedure set out in the articles of association. A Russian Federation citizen may hold membership of only one political party at once. A member of a political party may be registered only in one regional branch in the region of his permanent or predominant residence (section 23 §§ 1, 2, 3 and 6 of the Political Parties Act). 30. The Political Parties Act, adopted on 11 July 2001, introduced the requirements of minimum membership and regional representation for political parties. Until 20 December 2004 section 3 § 2 of the Political Parties Act required that a political party should have no fewer than ten thousand members and should have regional branches with no fewer than one hundred members in more than one half of Russia ’ s regions. If those conditions were fulfilled, it was also allowed to have branches in the remaining regions provided that each branch had no fewer than fifty members. 31. On 30 October 2004 a group of deputies of the State Duma proposed amendments to section 3 § 2 of the Political Parties Act. In particular, they proposed increasing the minimum membership of a political party to fifty thousand members and the minimum membership of a regional branch to five hundred members. An explanatory note appended to the draft law provided the following justification for the amendments : “The proposed draft Federal law is a follow-up to the reform of the political system started in 2001 and it aims at strengthening the political parties and involving a wider range of citizens in the political life of the society and the State.” 32. The State Duma ’ s Committee on Public Associations and Religious Organisations recommended that the amendments be adopted. The recommendation reads as follows: “The subject of the proposed Draft law is extremely important and pertinent. The experience of [political] party development in recent years has revealed that the political system in Russia needs perfection. The state and development of the party system have a major influence on the effective functioning of the legislative and executive powers whose mission is to protect citizens ’ rights and create favourable conditions for the development of the country. This is the rationale of the political reform proposed by the President of the Russian Federation, which advocates as one of its main goals the enhancement of the role and prestige of political parties in contemporary Russia. Acting as the nexus between civil society and the authorities and participating in parliamentary elections, large and authoritative political parties with firm political views, supported by a large number of voters, reinforce the structure and stability of the party system. This [Draft] law proposes increasing the minimum membership of a party from ten thousand ( under the Law now in force) to fifty thousand members and, for the regional branches, from one hundred to five hundred members. This is mainly justified by the consideration that the parliamentary, and consequently democratic, system cannot function without strong parties. Many small parties, the so - called quasi parties, having virtually no political weight or influence on the voters take part in the elections and enjoy various advantages. During the election campaign they receive financing from the State budget, have access to the media and are allocated free airtime on television. And after the election they disappear from the political scene. It is enough to note that out of forty-four parties and political alliances registered at the moment only three parties and one political alliance have seats in the State Duma. Only three parties have passed the 3% threshold, while the others have obtained less than 1% of the votes. This situation places an excessive burden on the budget and is at variance with the principle of efficient and careful spending of public funds provided for in Article 34 of the Budget Code of the Russian Federation. The dispersal of voters between such [small] parties results in the instability of the political system which we are witnessing today in our country. On the whole, the Draft law aims at streamlining the existing political system and creating effective, large-scale political parties having stable branches in the regions, expressing the genuine interests of substantial groups of voters and capable of defending them in the present conditions of democratic transformations in Russia. In view of the above, the Committee considers it necessary to support the proposed Draft law.” 33. On 20 December 2004 section 3 § 2 was amended. The amended section 3 § 2 required that a political party should have no fewer than fifty thousand members and should have regional branches with no fewer than five hundred members in more than one half of Russia ’ s regions. It was also allowed to have branches in the remaining regions provided that each branch had no fewer than two hundred and fifty members. 34. The political parties were required to bring the number of their members into compliance with the amended section 3 § 2 by 1 January 2006. If a party had not complied with that requirement it had to reorganise itself into a public association within a year, failing which it would be dissolved (section 2 §§ 1 and 4 of the Amending Act, Federal Law no. 168-FZ of 20 December 2004). 35. On 1 January 2007 the Ministry of Justice announced that only seventeen political parties out of forty-eight registered as at February 2004 now met the requirements of minimum membership and regional representation. Twelve political parties were dissolved by the Supreme Court in 2007, three political parties reorganised themselves into public associations, while several more political parties merged with bigger parties. Fifteen political parties remained registered by the end of 2007 and were eligible to participate in the 2 December 2007 elections to the State Duma. 36. On 5 November 2008 the President, in his address to the Federation Council, called for the development of democracy, in particular, by decreasing the minimum membership requirement for political parties. 37. On 5 December 2009 the President proposed amending section 3 § 2 of the Political Parties Act by providing for a gradual decrease in the minimum membership requirement. The explanatory note contained the following justification for the proposed amendments: “The Draft law aims at giving effect to the President ’ s address to the Federation Council of the Federal Assembly of the Russian Federation of 5 November 2008, concerning the necessity gradually to decrease the minimum membership of political parties required for their registration and further functioning, as well as to introduce the requirement of rotation for [management bodies] of political parties. ” 38. The State Duma ’ s Committee on Constitutional Legislation and State Development recommended that the proposed amendments be adopted. The relevant part of its recommendation reads as follows: “ The Draft law proposes a gradual decrease in the [minimum] membership of political parties required for their establishment, registration and further functioning. Its aim is to give effect to the measures proposed by the President of the Russian Federation in his address to the Federation Council of the Russian Federation of 5 November 2008, with a view to increasing the level and quality of people ’ s representation in the government.” 39. On 28 April 2009 section 3 § 2 was amended. It now reads as follows: “ 2. ... a political party shall: before 1 January 2010 – have no fewer than fifty thousand members, and regional branches with no fewer than five hundred members in more than one half of Russian regions ... It may also have branches in the remaining regions provided that each branch has no fewer than two hundred and fifty members ... from 1 January 2010 to 1 January 201 2 - have no fewer than forty-five thousand members, and regional branches with no fewer than four hundred and fifty members in more than one half of Russian regions ... It may also have branches in the remaining regions provided that each branch has no fewer than two hundred members ... from 1 January 201 2 - have no fewer than forty thousand members, and regional branches with no fewer than four hundred members in more than one half of Russian regions ... It may also have branches in the remaining regions provided that each branch has no fewer than one hundred and fifty members ... ” 2. State registration of political parties (a) Registration of Legal Entities Act 40. In accordance with the Registration of Legal Entities Act, all legal entities, including political parties, must be registered in the Unified State Register of Legal Entities. The Unified State Register of Legal Entities must contain, inter alia, the following information about each legal entity: its address and the names of its ex officio representatives. The legal entity must notify the registration authority of any change in that information (section 5 §§ 1 and 5). 41. Section 12 of the Registration of Legal Entities Act contains a list of documents to be submitted for the initial registration of a legal entity. Its section 17 § 1 contains a list of documents to be submitted for the registration of amendments to the legal entity ’ s articles of association. Paragraph 2 of that section provides that to register changes in other information on the legal entity (such as a change of address or ex officio representatives), the legal entity must submit a written notification to the registration authority. The notification must contain a declaration confirming that the information submitted is authentic and satisfies the requirements established by law. For that purpose a standard notification form was to be designed by the Government. (b) Non-Profit Organisations Act 42. The Non- Profit Organisations Act also contains a list of documents to be submitted for the initial registration of a non-profit organisation (section 13.1 § 4) and the registration of amendments to its articles of association (section 23). The Act also provides that a non-profit organisation must notify the registration authority about any change concerning its address or its ex officio representatives and submit confirming documents. The procedures and time-limits are the same as for the initial registration of a non-profit organisation. The list of documents to be submitted is determined by the competent executive authority (section 32 § 7, added on 10 January 2006 and in force from 16 April 2006). The competent executive authority may refuse registration if the documents submitted do not comply with statutory requirements (section 23.1 § 1). (c) Political Parties Act 43. The Political Parties Act provides that political parties must be registered in the Unified State Register of Legal Entities in accordance with the special registration procedure established by that Act (section 1 5 § 1). Amendments to the Register are made pursuant to the decision of a competent executive authority authorising registration of information about the establishment, reorganisation or dissolution of a political party or its regional branches or of other information specified by law (section 15 § 2). Before registering a political party, the competent registration authority must verify whether the documents submitted for registration satisfy the requirements of the Political Parties Act. The Register must be amended within five days from the date of the authorisation issued by the registration authority (section 1 5 § 5). 44. Section 16 § 1 of the Political Parties Act contains an exhaustive list of documents to be submitted for the registration of a political party established by the founding congress: (a) an application for registration; (b) the party ’ s articles of association; (c) its political programme; (d) copies of decisions taken by the founding congress, in particular those concerning the establishment of the political party and its regional branches, the adoption of its articles of association and its programme and the election of its management bodies, and containing information about the delegates present and the results of the votes; ( e ) a document confirming payment of the registration fee; ( f ) information about the party ’ s official address; ( g ) a copy of the publication announcing the time and place of the founding congress, and ( h ) copies of the minutes of regional conferences held in more than one half of Russia ’ s regions, mentioning the number of members of each regional branch. Paragraph 2 of the same section prohibits State officials from requiring the submission of any other documents. The documents listed above must be submitted to the registration authority no later than six months after the founding congress (section 15 § 3). 45. The registration authority may refuse registration if the party has not submitted all necessary documents or if the information contained in those documents does not meet the requirements established by law (section 20 § 1). 46. A political party must notify the registration authority, within three days, of any change in the information contained in the Unified State Register of Legal Entities, including any change in its address or its ex officio representatives. The registration authority amends the Register within one day of receipt of the notification (section 27 § 3 ) 3. Internal organisation of a political party 47. A political party ’ s articles of association must establish, among other things, the procedure for the election of its management bodies (section 21 § 2 of the Political Parties Act). Management bodies of a political party must be re-elected at least every four years (section 24 § 3). Management bodies must be elected by a secrete vote at a general conference assembling delegates from regional branches established in more than one half of Russia ’ s regions. The election must be conducted in accordance with the procedure established by the party ’ s articles of association and the decision must be taken by a majority of those present and voting (section 25 §§ 1, 4 and 6). 4. Participation in elections 48. Until 14 July 2003 candidates in elections to State bodies could be nominated by political parties, electoral blocks or by self-nomination. Since legislative amendments introduced on 11 July 2001 entered into force on 14 July 2003, candidates in elections to State bodies may be nominated by political parties only (section 36 § 1 of the Political Parties Act as in force from 14 July 2003 ). 49. A political party wishing to participate in elections to the State Duma must submit its list of candidates to the electoral commission. It must also submit a certain number of signatures of support. Parties who currently have seats in the State Duma are absolved from the requirement to submit signatures of support. Until 3 June 2009 a political party had to submit signatures from no fewer that 200,000 enfranchised citizens domiciled in at least twenty Russian regions. The legal provision currently in force requires a political party to submit signatures from no fewer than 1 5 0,000 enfranchised citizens domiciled in more than one half of Russian regions. The number of signatures required will be decreased to 120,000 after the parliamentary elections of December 2011 (section 39 of the State Duma Elections Act (Federal Law no. 51-FZ of 18 May 2005) ). 50. Until 2005 the 450 seats in the State Duma were distributed between those political parties whose electoral lists obtained more than 5% of the votes cast. The State Duma Elections Act of 18 May 2005 increased the electoral threshold to 7% (section 82 § 7 of the State Duma Elections Act ). In accordance with recent amendments to the State Duma Elections Act introduced on 12 May 2009, a political party whose electoral list wins between 6 % and 7% of the votes cast receives two seats in the State Duma, while a party which wins between 5% and 6% of the votes cast receives one seat (section 82.1 of the State Duma Elections Act). 5. Public financing of political parties 51. Political parties which take part in elections and obtain more that 3% of the votes cast are entitled to receive public financing to reimburse their electoral expenses. The amount of public financing received by each party is proportionate to the number of votes obtained by it (section 33 §§ 1, 5 and 6 of the Political Parties Act). 6. State control over political parties 52. Once a year a political party must submit to the competent authorities a report on its activities, indicating, in particular, the number of members of each of its regional branches (section 27 § 1 (b)). 53. The competent authorities monitor compliance by political parties and their regional and other structural branches with Russian laws, as well as the compatibility of political parties ’ activities with the regulations, aims and purposes set out in their articles of association. The authorities concerned have the right to study, on an annual basis, the documents of political parties and their regional branches confirming the existence of regional branches and the number of their members, and to issue warnings to political parties and their regional branches if they pursue activities incompatible with their articles of association. The party or regional branch may challenge such warnings before a court. The authorities have the right to apply to a court for the suspension of the activities or the dissolution of a political party or its regional branch (section 38 § 1). 54. A political party may be dissolved by the Supreme Court of the Russian Federation if it does not comply with the minimum membership requirement or the requirement to have regional branches in more than one half of Russian regions (section 41 § 3). B. Case-law of the Constitutional Court of the Russian Federation 55. On 1 February 2005 the Constitutional Court delivered its Ruling no. 1-P in a case lodged by the Baltic Republican Party, a regional party which was dissolved because it did not satisfy the requirements of minimum membership and regional representation. In its application to the Constitutional Court it complained that the above requirements under section 3 § 2 of the Political Parties Act were incompatible with the Constitution. The Constitutional Court declared that section 3 § 2 as in force until 20 December 2004 was compatible with the Constitution. It held as follows: “ 3. The Constitution of the Russian Federation provides for the multiparty system (Article 13 § 3) and for the right to freedom of association and freedom of activities of public associations (Article 30 § 1) ... It does not, however, specify the territorial level – all-Russian, interregional, regional or local – on which political parties may be founded. Similarly, it does not contain an explicit ban on the creation of regional parties. Accordingly, the requirement in section 3 § 2 of [the Political Parties Act] that political parties may be created and operated only on the federal ( all-Russian) level is a limitation of the constitutional right to freedom of association in political parties. Such limitations are permissible only if they are necessary in order to protect constitutionally guaranteed values (Article 55 § 4 of the Constitution of the Russian Federation ). 3.1. ... [The Political Parties Act] guarantees the right to freedom of association in political parties (section 2) and provides that political parties are established for the purpose of ensuring participation by Russian citizens in the political life of their society. Their mission is to form and articulate citizens ’ political will, to take part in public and political actions, elections and referenda, as well as to represent citizens ’ interests in State and municipal bodies (section 3 § 1). According to the substance of [the Political Parties Act ], political parties are created to ensure Russian citizens ’ participation in the political life of the entire Russian Federation rather than in one of its parts. Their vocation is to form the political will of the multinational Russian people as a whole and to articulate nationwide interests first and foremost. Their aims should not be associated with the interests of certain regions only. At the same time, when carrying out their activities directly in the regions, political parties must combine nationwide and regional interests ... The federal legislator ... made the acquisition (and retention) of the status of a political party conditional, firstly, on a public association expressing the interests of a considerable number of citizens irrespective of their region of residence and, secondly, on its carrying out activities in the entire territory of the Russian Federation or most of it. Such structuring of the political scene is aimed at preventing the division of the political forces and the emergence of numerous artificial small parties (especially during electoral campaigns) created for a short duration and therefore incapable of fulfilling their mission ... in the country ’ s political system. 3.2. ... In the contemporary conditions where Russian society has not yet acquired solid experience of democratic existence and is faced with serious challenges from separatist, nationalist and terrorist forces, the creation of regional political parties – which would inevitably be interested in vindicating mainly their own purely regional or local interests – might result in a breach of the territorial integrity and unity of the political system and undermine the federative structure of the country. The legal line between regional political parties and political parties based in fact on ethnic or religious affiliation would be blurred. Such parties ... would inevitably strive to assert mainly the rights of their respective ethnic and religious communities, which at the present stage of historic development would distort the process of forming and articulating the political will of the multinational people which is the bearer of sovereignty and the only source of power in the Russian Federation. Moreover, taking into account the complex [federal] structure of the Russian Federation, the establishment of regional and local political parties in each region of the Federation might lead to the rise of numerous regional party systems. This might turn the emerging party system ... into a destabilising factor for the developing Russian democracy, popular sovereignty, federalism and the unity of the country, and weaken the constitutional protection of people ’ s rights and freedoms, including the right to freedom of association in political parties and the equal right of all citizens to establish a political party and participate in its activities in the entire territory of the Russian Federation. 3.3. Thus, the requirement contained in [the Political Parties Act] that the status of a political party may be acquired only by nationwide (all-Russian) public associations pursues such constitutionally protected aims as the creation of a real multiparty system, the legal institutionalisation of political parties in order to assist the development of the civil society, and ... the formation of large, nationwide political parties. This requirement is also necessary in the contemporary historical conditions of developing democracy and rule of law in the Russian Federation for the purpose of protecting constitutional values and, above all, securing the unity of the country. The above limitation is temporary in character and must be abolished as soon as the circumstances justifying it become different. 4. Although it provides for a multiparty system and guarantees the right to freedom of association in political parties and the freedom of their activities, the Constitution of the Russian Federation does not set any requirements concerning the number of parties, or any membership requirements. Nor does it prohibit establishing a minimum membership requirement for political parties. It is the role of the federal lawmaker to establish those requirements in such a way that, on the one hand, the [required minimum] membership and territorial scale of activities of political parties are not excessive and do not encroach on the very essence ... of the citizens ’ right to freedom of association and, on the other hand, [the political parties] are capable of fulfilling their aims and mission as nationwide (all-Russian) political parties. In other words, the lawmaker must be guided by the criteria of reasonable sufficiency ensuing from the principle of proportionality. When deciding on the minimum membership and the territorial scale of the activities of political parties the lawmaker has a wide discretion, taking into account that this issue is to a considerable degree based on political expediency. This follows from the fact that there exist different solutions to the issue in the legislation of other countries (the minimum membership requirement for political parties is considerably higher or lower than that contained in section 3 of [the Political Parties Act]) ... Defining the minimum-membership requirement for political parties in [the Political Parties Act], the lawmaker apparently proceeded from the necessity for a political party to have considerable support in society. Such support is required to fulfil the main mission of a political party in a democratic society, namely forming and articulating the political will of the people. The requirements such as contained in section 3 § 2 of [the Political Parties Act] [as in force until 20 December 2004] are not in themselves incompatible with the Constitution of the Russian Federation. These quantitative requirements might become incompatible with the Constitution if their enforcement results in the practical impossibility for the citizens to exercise their constitutional right to freedom of association in political parties, for example if, in breach of the constitutional principle of the multiparty system, they permit the establishment of one party only. 5. The principle of political pluralism guaranteed by Article 13 of the Constitution of the Russian Federation may be implemented not only through a multiparty system and establishment and the activities of political parties with various ideologies. Therefore the forfeiture by interregional, regional and local public associations ... of the right to be called a political party does not mean that such associations are deprived of the right to participate in the political life of society at the regional and local levels. Nor have their members been deprived of the right to freedom of association. ... public associations have the majority of the rights guaranteed to political parties ... The provision of [the Political Parties Act] that a political party is the only kind of public association that may nominate candidates in elections to State bodies (section 6 § 1) does not mean that other public associations, including regional and local ones, ... are deprived of the right to nominate candidates for elections to municipal bodies or the right to initiate regional or local referenda ... 6. It follows from the above that, taking into account the historical conditions of development of the Russian Federation as a democratic and federative State governed by the rule of law, sections 3 § 2 and 47 § 6 of [the Political Parties Act] setting out the requirements for political parties and providing for the forfeiture by interregional, regional and local public associations of the status of political parties ... cannot be considered as imposing excessive limitations on the right to freedom of association. The above requirements do not prevent citizens of the Russian Federation from exercising their constitutional right to freedom of association by creating all-Russian political parties or joining them, or from defending their interests and achieving their collective goals in the political sphere at the interregional, regional and local levels by creating public associations ... and joining them ... ” 56. On 16 July 2007 the Constitutional Court delivered Ruling no. 11-P in a case lodged by the Russian Communist Labour Party in which section 3 § 2, as amended on 20 December 2004, was challenged. The Constitutional Court declared that the minimum membership requirement contained in that section was compatible with the Constitution. It held as follows: “3.1... [The aim of the minimum membership requirement] is to promote the consolidation process, to create prerequisites for the establishment of large political parties voicing the real interests of the social strata, and to secure fair and equal competition between political parties during elections to the State Duma. The Federal Law of 18 May 2005 [the State Duma Elections Act] reformed the electoral system ... In accordance with that law all 450 members of the State Duma are to be elected from electoral lists submitted by political parties. The seats in the State Duma are distributed between the political parties which pass the threshold [of 7%] in terms of the number of votes cast for their respective electoral lists. The introduction of the threshold ... prevents excessive parliamentary fragmentation and thus ensures normal functioning of the parliament and buttresses the stability of the legislature and the constitutional foundations in general... [As a result of the reform] political parties become the only collective actors of the electoral process... The reform of the electoral system requires that the legal basis for the functioning of the multiparty system be adjusted so that the party system is capable of reconciling the interests and needs of society as a whole and of its various social and regional strata and groups, and of representing them adequately in the State Duma. The State Duma is an organised form of representation of the will and interests of the multiethnic population of the Russian Federation. That will and those interests can be expressed only by large, well-structured political parties. This is one of the reasons for changing the requirements imposed on political parties, including the minimum membership requirement for parties and their regional branches. These requirements are dictated by the characteristics proper to each stage of development of the party political system. They do not create insurmountable obstacles for the establishment and activities of political parties representing various political opinions, are not directed against any ideology and do not prevent discussion of various political programmes. The State guarantees equality of political parties before the law irrespective of the ideology, aims and purposes set out in their articles of association. 3.2. ... when setting out the minimum membership requirements for political parties the federal legislator must take care, on the one hand, that those requirements are not excessive and do not impair the very essence of the right to freedom of association, and must ensure, on the other hand, that the political parties are able to pursue the aims and purposes set out in their articles of association exclusively as national (all-Russian) political parties. The national legislature must be guided by the criteria of reasonable sufficiency and proportionality. ... the quantitative requirements will be incompatible with the Constitution only if the constitutional right to associate in political parties becomes illusory as a result of their application... ...the federal legislature is entitled to set out membership requirements for political parties in the light of current historical conditions in the Russian Federation. Those requirements can be changed in one way or the other because they are not arbitrary but objectively justified by the ... aims in the sphere of development of the political system and maintenance of its compatibility with the basic constitutional foundations of the Russian Federation. They do not abolish, diminish or disproportionately restrict the citizens ’ constitutional right to associate in political parties. 3.3. ... Political parties are created to ensure the involvement of citizens of the Russian Federation in the political life of Russian society by means of forming and expressing their political will, participating in public and political activities, elections and referenda, and representing the citizens ’ interests in State and municipal bodies. Therefore, the legislator rightfully determined [the minimum membership ] by reference to a political party ’ s real ability to represent the interests of an important portion of the population and to accomplish its public functions... The [minimum membership] requirements... are not discriminatory because they do not prevent the emergence of diverse political programmes, they are applied in an equal measure to all public associations portraying themselves as political parties, irrespective of the ideology, aims and purposes set out in their articles of association, and they do not impair the very essence of the citizens ’ right to freedom of association. Their application in practice shows that the constitutional right to associate in political parties remains real... (according to information from [the Ministry of Justice], on 1 January 2007 seventeen political parties out of thirty-three had confirmed their compliance with the new legal requirements, three political parties had decided on a voluntary basis to reorganise themselves into public associations...). The members of political parties which do not comply with the legal requirements established by the Political Parties Act have a choice ... between increasing the number of members of their party to reach the required minimum, reorganising their party into a public association..., founding a new party or joining another [existing] political party...” III. RELEVANT INTERNATIONAL MATERIALS A. Guidelines by the Venice Commission 57. The Guidelines on prohibition and dissolution of political parties and analogous measures (Doc. CDL-INF(2000)1), adopted by the European Commission for Democracy through Law (“the Venice Commission ”) on 10 January 2000, read as follows: “ The Venice Commission, ... Has adopted the following guidelines: 1. States should recognise that everyone has the right to associate freely in political parties. This right shall include freedom to hold political opinions and to receive and impart information without interference by a public authority and regardless of frontiers. The requirement to register political parties will not in itself be considered to be in violation of this right. ... 3. Prohibition or enforced dissolution of political parties may only be justified in the case of parties which advocate the use of violence or use violence as a political means to overthrow the democratic constitutional order, thereby undermining the rights and freedoms guaranteed by the constitution. The fact alone that a party advocates a peaceful change of the Constitution should not be sufficient for its prohibition or dissolution. ... 5. The prohibition or dissolution of political parties as a particularly far-reaching measure should be used with utmost restraint. Before asking the competent judicial body to prohibit or dissolve a party, governments or other state organs should assess, having regard to the situation of the country concerned, whether the party really represents a danger to the free and democratic political order or to the rights of individuals and whether other, less radical measures could prevent the said danger. 6. Legal measures directed to the prohibition or legally enforced dissolution of political parties shall be a consequence of a judicial finding of unconstitutionality and shall be deemed as of an exceptional nature and governed by the principle of proportionality. Any such measure must be based on sufficient evidence that the party itself and not only individual members pursue political objectives using or preparing to use unconstitutional means. 7. The prohibition or dissolution of a political party should be decided by the Constitutional court or other appropriate judicial body in a procedure offering all guarantees of due process, openness and a fair trial. ” 58. The Venice Commission made the following recommendations in its Guidelines and explanatory report on legislation on political parties: some specific issues (Doc. CDL-AD(2004)007rev of 15 April 2004) : “ ... B. Registration as a necessary step for recognition of an association as a political party, for a party ’ s participation in general elections or for public financing of a party does not per se amount to a violation of rights protected under Articles 11 and 10 of the European Convention on Human Rights. Any requirements in relation to registration, however, must be such as are ‘ necessary in a democratic society ’ and proportionate to the objective sought to be achieved by the measures in question. Countries applying registration procedures to political parties should refrain from imposing excessive requirements for territorial representation of political parties as well as for minimum membership. The democratic or non-democratic character of the party organisation should not in principle be a ground for denying registration of a political party. Registration of political parties should be denied only in cases clearly indicated in the Guidelines on prohibition of political parties and analogous measures, i.e. when the use of violence is advocated or used as a political means to overthrow the democratic constitutional order, thereby undermining the rights and freedoms guaranteed by the constitution. The fact alone that a peaceful change of the Constitution is advocated should not be sufficient for denial of registration. C. Any activity requirements for political parties, as a prerequisite for maintaining the status as a political party and their control and supervision, have to be assessed by the same yardstick of what is ‘ necessary in a democratic society ’. Public authorities should refrain from any political or other excessive control over activities of political parties, such as membership, number and frequency of party congresses and meetings, operation of territorial branches and subdivisions. D. State authorities should remain neutral in dealing with the process of establishment, registration (where applied) and activities of political parties and refrain from any measures that could privilege some political forces and discriminate others. All political parties should be given equal opportunities to participate in elections. E. Any interference of public authorities with the activities of political parties, such as, for example, denial of registration, loss of the status of a political party if a given party has not succeeded in obtaining representation in the legislative bodies (where applied), should be motivated, and legislation should provide for an opportunity for the party to challenge such decision or action in a court of law. F. Although such concern as the unity of the country can be taken into consideration, Member States should not impose restrictions which are not “necessary in a democratic society” on the establishment and activities of political unions and associations on regional and local levels. G. When national legislation provides that parties lose their status of a political party if they do not succeed to take part in elections or to obtain representation in legislative bodies, they should be allowed to continue their existence and activities under the general law on associations. ... a. Registration of political parties 10. The already mentioned study on the establishment, organisation and activities of political parties conducted in 2003 by the Sub-Commission on Democratic Institutions has shown that many countries view registration as a necessary step for recognition of an association as a political party, for participation in general elections or for public financing. This practice – as the Venice Commission has stated before in its Guidelines on Prohibition and Dissolution of Political Parties – even if it were regarded as a restriction of the right to freedom of association and freedom of expression, would not per se amount to a violation of rights protected under Articles 11 and 10 of the European Convention on Human Rights. The requirements for registration, however, differ from one country to another. Registration may be considered as a measure to inform the authorities about the establishment of the party as well as about its intention to participate in elections and, as a consequence, benefit from advantages given to political parties as a specific type of association. Far-reaching requirements, however, can raise the threshold for registration to an unreasonable level, which may be inconsistent with the Convention. Any provisions in relation to registration must be such as are necessary in a democratic society and proportionate to the object sought to be achieved by the measures in question. b. Activity requirements for political parties and their control and supervision 11. Similar caution must be applied when it comes to activity requirements for political parties as a prerequisite for maintaining their status as a political party and their control and supervision. Far-reaching autonomy of political parties is a cornerstone of the freedoms of assembly and association and the freedom of expression as protected by the European Convention on Human Rights. As the European Court of Human Rights has stated, the Convention requires that interference with the exercise of these rights must be assessed by the yardstick of what is ‘ necessary in a democratic society ’. The only type of necessity capable of justifying an interference with any of those rights is, therefore, one which may claim to spring from ‘ democratic society ’. In particular, control over the statute or charter of a party should be primarily internal, i.e. should be exercised by the members of the party. As regards external control, the members of a party should have access to a court in case they consider that a decision of a party organ violates its statute. In general, judicial control over the parties should be preferred over executive control. 12. Another important aspect is that of equal treatment of parties by public authorities. In the case of registration procedure (if it is foreseen by national legislation) the State should proceed carefully in order to avoid any possible discrimination of political forces which might be considered as representing an opposition to the ruling party. In any case, clear and simple procedures should exist to challenge any decision and/or act of any registration authority in a court of law. ... d. Political parties and elections 16. The main objective of political parties is participation in the public life of their country. Elections are essential for the fulfilment of this task; therefore the principle of equality between parties is of utmost importance. In recent years some new democracies claim that the stability of government and the good functioning of parliament can be achieved through limiting the number of parties participating in elections. This suggestion seems to be in contradiction with European standards applicable to electoral process. ... 18. In recent years the role of a multitude of political parties as associations expressing the will of many different parts of society is being reconsidered in a positive way. “ Preventing an excessive number of parties through the electoral system would seem to be the most effective and least objectionable method as far as political rights are concerned. The general trend is to avoid restricting the number of parties by tinkering with the terms and conditions governing registration, because refusal to register a party is often a convenient way for the authorities to get rid of a competitor who is irksome rather than insignificant”[CDL-EL(2002)1, ch. II.4.1]. 19. In some Member States parties can lose their status of “political party” if they do not have any candidates elected in national elections. If the provisions of Articles 10 and 11 are to be applied with due regard to what is ‘ necessary in a democratic society ’, they should be allowed to continue their activities under the general law on associations. e. Parties on local and regional levels 20. Member states should not restrict the right of association in a political party to the national level. There should be a possibility to create parties on regional and local levels since some groups of citizens might want to associate in groups limiting their action to local and regional levels and to local and regional elections. However, certain new democracies consider such extensive approach to the freedom of association premature in the light of their effort to preserve the unity of the State. Such concern can be understood, but before any restrictions are imposed, the principle of proportionality and the yardstick of what is ‘ necessary in a democratic society ’ should be considered thoroughly. ” 59. The Report on the participation of political parties in elections (Doc. CDL-AD(2006)025, of 14 June 2006) states as follows: “15. Political parties are, as some Constitutions and the European Court of Human Rights have expressly admitted, essential instruments for democratic participation. In fact, the very concept of the political party is based on the aim of participating “in the management of public affairs by the presentation of candidates to free and democratic elections”. They are thus a specific kind of association, which in many countries is submitted to registration for participation in elections or for public financing. This requirement of registration has been accepted, considering it as not per se contrary to the freedom of association, provided that conditions for registration are not too burdensome. And requirements for registration are very different from one country to another: they may include, for instance, organisational conditions, requirement for minimum political activity, of standing for elections, of reaching a certain threshold of votes. However, some pre-conditions for registration of political parties existing in several Council of Europe Member States requiring a certain territorial representation and a minimal number of members for their registration could be problematic in the light of the principle of free association in political parties.” 60. Further, in the report entitled “Comments on the Draft law on political parties of Moldova” endorsed by the Venice Commission at its 71st plenary session (Doc. CDL-AD(2007)025, of 8 June 2007), the Venice Commission criticised the requirements contained in the Moldovan Draft Law that a political party have no fewer than five thousand members in at least half of the territorial administrative units, with no fewer than 150 members domiciled in each of the aforementioned territorial administrative units. It found those requirements to be unusually high as compared to other democracies in Western Europe and almost impossible to fulfil for any local association. In another report on Moldova the Venice Commission criticised the statutory requirement that political parties submit membership lists for review every year. The relevant part of that report, entitled Joint Recommendations on the electoral law and the electoral administration in Moldova of the European Commission for Democracy through Law and the Office for Democratic Institutions and Human Rights of the OSCE (Doc. CDL-AD(2004)027, of 12 July 2004) read as follows: “ 51. Moldova has gone too far in registering political opinions, in that the membership lists have to be submitted for review every year. It is difficult to find a justification for this. Once a party is registered and has run for elections, the results of the elections could be sufficient evidence of its support. Only the need for renewed registration of such parties, which never gained support during elections, is admissible. Submitting membership lists to the government if a party has won seats in Parliament in a number of municipalities or rayons, seems at best unnecessarily bureaucratic, at worst, abusive. 52. Moreover, the requirement of support across the country discriminates regionally based parties.” 61. The Venice Commission has also adopted a Code of Good Practice in Electoral Matters (Doc. CDL-AD(202)23, of 30 October 2002). The Explanatory Report to the Code of Practice reads, in so far as relevant, as follows: “63. Stability of the law is crucial to credibility of the electoral process, which is itself vital to consolidating democracy. Rules which change frequently – and especially rules which are complicated – may confuse voters. Above all, voters may conclude, rightly or wrongly, that electoral law is simply a tool in the hands of the powerful, and that their own votes have little weight in deciding the results of elections. 64. In practice, however, it is not so much stability of the basic principles which needs protecting (they are not likely to be seriously challenged) as stability of some of the more specific rules of electoral law, especially those covering the electoral system per se, the composition of electoral commissions and the drawing of constituency boundaries. These three elements are often, rightly or wrongly, regarded as decisive factors in the election results, and care must be taken to avoid not only manipulation to the advantage of the party in power, but even the mere semblance of manipulation. 65. It is not so much changing voting systems which is a bad thing – they can always be changed for the better – as changing them frequently or just before (within one year of) elections. Even when no manipulation is intended, changes will seem to be dictated by immediate party political interests.” B. Comparative law materials 62. The Court conducted a comparative study of the legislation of twenty- one Member States of the Council of Europe. Thirteen of those States impose a minimum membership requirement on political parties. In particular, in order to obtain registration political parties are required to prove that they have a certain number of founding members. The required minimum membership ranges from 30 in Turkey and 100 in Croatia to 5,000 in Moldova and 25,000 in Romania. Five countries ( Austria, France, Germany, Italy and Spain ) do not impose any minimum membership requirement on political parties. Three more countries, while not setting a membership requirement as such, make registration of a political party conditional on producing a certain number of signatures of support (5,000 in Finland and Norway and 10,000 in Ukraine ). In only two countries is there a statutory requirement that a political party establish regional branches in a certain number of regions ( in more than one half of the regions in Ukraine and in all regions in Armenia ). The legislation of two more countries requires political parties to have members domiciled in a certain number of regions ( no fewer than one hundred and fifty members in more than one half of the regions in Moldova and no fewer than seven hundred members in at least eighteen regions in Romania ). 63. It must also be noted that out of the twenty-one countries studied by the Court the legislation of only two countries ( Latvia and Ukraine ) restricts the right to nominate candidates for elections to political parties or their coalitions. The legislation of all the other countries examined allows the nomination of election candidates by associations of citizens or by self-nomination. 64. The Court also studied a report adopted by the Venice Commission, on the establishment, organisation and activities of political parties on the basis of the replies to the questionnaire on the establishment, organisation and activities of political parties (Doc. CDL-AD (2004)004, of 16 February 2004), which, in so far as relevant, reads as follows: “ 1. This report has been prepared from the replies to the Questionnaire on Establishment, Organisation and Activities of Political Parties, which was adopted by the Sub-Commission on Democratic Institutions (Venice, 13 March 2003, CDL-DEM(2003)1rev). The questionnaire is a follow-up to a similar document, which was sent out earlier, as part of preparations for the adoption of Guidelines and Report on the Financing of Political Parties ( Venice, 9 - 10 March 2001, CDL-INF(2001)8). 2. This time 42 countries responded. They are listed here in alphabetical order: Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Ireland, Italy, Japan, Republic of Korea, Kyrghyz Republic, Latvia, Liechtenstein, Lithuania, Luxembourg, “The Former Yugoslav Republic of Macedonia”, Malta, The Netherlands, Poland, Romania, The Russian Federation, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and The United Kingdom. ... 1.4 Does the law distinguish between political parties on the local, the regional and the national level? 14. The majority of responding countries do not distinguish between political parties on different levels of government, no matter whether the governmental system of the country is unitary, federal or other; Austria, Greece, Finland, France, Italy, Japan, Luxembourg, Malta and Spain may be mentioned as examples. There are exceptions, however. Canada distinguishes between political parties on the federal and on the provincial level. Georgia prohibits explicitly establishment of political parties on the grounds of regional or territorial basis. Germany does not include political activities on the local level as aiming at taking part in the forming of the will in the representation of the people, i.e. the whole of the people; associations which are politically active on the local level only, therefore, do not fall within the concept of political party in the sense of the Constitution and the German legislation on political parties. ... 2.2 What are the substantive and procedural requirements to establish a political party? 22. A number of countries have a specific legal framework for the activities of political parties and their establishment. – in general – concerning its political programme – concerning founding members or concerning other individuals, who in some way have to support the establishment (and their number, citizenship, geographical distribution etc.) 23. Some countries impose on political parties an obligation to go through a registration process. Almost all countries mentioned in the first group in paragraph 2.1 have to go through a registration process or at least through deposition of their articles of association with the competent authorities of their country. This process is justified by the need of formal recognition of an association as a political party. Some of these additional requirements can differ from one country to another: ... d) minimum membership (Azerbaijan, Bosnia and Herzegovina, Canada, Croatia, Czech Republic, Estonia, Georgia, Germany, Greece, Kyrgyzstan, Latvia, Lithuania, Russian Federation, Slovakia and Turkey); ... i ) signatures attesting certain territorial representation ( Moldova, Russian Federation, Turkey and Ukraine ); ... 24. After these requirements are met, a competent body (Ministry of Justice, for example) proceeds with official registration. In the case of such countries as, for example, Austria and Spain, the Charter (articles of association) are just submitted to the competent authority in order to be added to a special State register. ... 3.6 Is a political party required to maintain national, regional or local branches or offices? 48. There are no requirements in law to maintain branches or offices in a particular way in Andorra, Austria, Belgium, Canada, Estonia, Finland, France, Georgia, Hungary, Italy, Latvia, Liechtenstein, Luxembourg, Sweden and Switzerland. Romania requires political parties to maintain a head office, Ireland requires headquarters and Turkey, a national office in Ankara. Germany requires parties to maintain regional branches, and in the United Kingdom a party must state whether it intends to operate in the United Kingdom as a whole, in part of the United Kingdom or at a local level; however, this is no more than a statement of intention, and the law does not appear to impose a legal obligation on the party to carry out this statement of intention. In Ukraine, within six months from the date of registration a political party shall secure the formation and registration of its regional, city and district organisations in most regions of Ukraine, in the cities of Kyiv and Sevastopol and in the Autonomous Republic of the Crimea. ... 4.2 Is it mandatory for political parties, e.g. as a prerequisite for maintaining registration or for access to public financing, - to present individual candidates or lists of candidates for general elections on the local, regional or national level? - to participate in local, regional or national election campaigns? - to get a minimum percentage of votes or a certain number of candidates elected in local, regional and national elections? - to conduct other political activities specified by law? 52. Regulations on the participation of political parties in the political process of the country are more diverse in the case of States where there is a requirement for party registration. However, financing from public sources is subject to detailed legislation in most countries. Such general trends can be observed in countries for party registration and party financing: (a) only parties participating in general elections, which attain a certain threshold can receive public funding (Austria, Belgium, Bosnia and Herzegovina, Canada, Czech Republic, Estonia, “the Former Yugoslav Republic of Macedonia”, France, Georgia, Germany, Greece, Japan, Liechtenstein, Lithuania, Luxembourg, the Netherlands, Poland, Russian Federation, Spain, Slovenia, Sweden); (b) registration is revoked if a party: (1) does not take part in a certain number of elections ( Armenia ); (2) does not receive a minimum number of votes ( Armenia ); or (3) fails to prove a minimum membership and/or regional representation ( Estonia, Moldova, Ukraine ); (c) The party is removed from the official list of parties but can continue to exist as an association if it does not take part in a certain number of elections ( Finland ) ... ” THE LAW I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION ON ACCOUNT OF THE REFUSAL TO AMEND THE STATE REGISTER 65. The applicant complained under Article 11 of the Convention about the refusal to amend the information about its address and ex officio representatives contained in the Unified State Register of Legal Entities. Article 11 reads as follows: “ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” A. Admissibility 66. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 67. The applicant submitted that the refusal to amend the State Register had been unlawful. In particular, the requirement to submit the same documents as for the registration of a newly established political party had no basis in domestic law. It followed from the wording of section 16 of the Political Parties Act containing a list of documents to be submitted to the registration authority (see paragraph 44 above) that it applied only to cases of initial registration of a political party immediately after its establishment by the founding congress. Section 27 § 3 of that Act established a simplified notification procedure for registration of amendments to the information contained in the Register (see paragraph 46 above). The Registration of Legal Entities Act also differentiated between initial registration of a legal entity and registration of amendments to the Register, providing for an authorisation procedure in the former case and a notification procedure in the latter (see paragraph 41 above). It followed that the applicant had been unlawfully and arbitrarily required to submit, for verification by the registration authority, the documents enumerated in section 16 of the Political Parties Act. It had however complied with that unlawful requirement and produced the necessary documents. 68. The applicant disputed the domestic authorities ’ finding that the documents thus produced were defective. It asserted in particular that the general conference of 17 December 2005 which had elected its ex officio representatives and decided to change its official address had been convened and held in accordance with the procedure established by domestic law and its articles of association. The domestic authorities ’ findings to the contrary had been arbitrary and irreconcilable with the available evidence. 69. Further, the applicant submitted that the refusal to amend the information about its address and ex officio representatives had disrupted its activities. The term of office of the previous ex officio representatives had expired in April 2006. As the authorities had refused to register the new ex officio representatives duly elected at the general conference, the applicant had become unable to function properly. It could not establish new regional branches, submit annual reports or other documents requested by the authorities, or re - submit a request for registration of amendments to the Register, as all those actions required the signatures of the ex officio representatives. Moreover, it had not been the first time that the authorities had invalidated the decisions adopted at the applicant ’ s general conferences. The extraordinary general conference of 17 December 2005 had been convened because the domestic authorities had refused to recognise the decisions adopted at the previous general conference. Finally, the authorities ’ finding that the general conference of 17 December 2005 had been illegitimate had served as a basis for the dissolution of several of the applicant ’ s regional branches and the ultimate dissolution of the applicant itself. For the above reasons, the applicant considered that the authorities ’ refusal to amend the Register had amounted in fact to dissolution in disguise. (b) The Government 70. The Government submitted that the interference with the applicant ’ s rights had been lawful. The Political Parties Act established a special authorisation procedure for registration of political parties. The requirement to obtain a registration authorisation was justified by the special status and role of political parties. The Political Parties Act did not differentiate between types of registration. The same rules therefore applied to the registration of a newly established political party and to the registration of any amendments to the information contained in the Register. In all cases a political party had to submit the documents specified in section 16 of the Political Parties Act (see paragraph 44 above) and the registration authority had competence to verify those documents and decide whether to authorise or refuse registration (see sections 15 § 5, 29 § 1 and 38 § 1 of the Political Parties Act in paragraphs 43, 45 and 53 above). The fact that those provisions allowed different interpretations was not contrary to the Convention. Many laws were inevitably couched in terms which, to a greater or lesser extent, were vague and whose interpretation and application were questions of practice. The role of adjudication vested in the courts was precisely to dissipate such interpretational doubts as remained, taking into account the changes in everyday practice ( the Government referred to Rekvényi v. Hungary [GC], no. 25390/94, § 34, ECHR 1999 ‑ III, and Gorzelik and Others v. Poland [GC], no. 44158/98, § 65, ECHR 2004 ‑ I ). The Government concluded that domestic provisions governing registration of political parties met the requirements of accessibility and foreseeability. In any event, the applicant had applied to the domestic authorities for instructions as to the registration procedure to be followed and had received detailed explanations. It was also significant that the lawfulness of the refusal of registration had been examined and confirmed by the domestic courts. Given that it was in the first place for the national authorities, and notably the courts, to interpret domestic law, it was not the Court ’ s task to substitute its own interpretation for theirs in the absence of arbitrariness ( they referred to Tejedor García v. Spain, 16 December 1997, § 31, Reports of Judgments and Decisions 1997 ‑ VIII ). 71. As to the justification for the refusal of registration, the Government submitted that the domestic authorities had refused registration of amendments to the Register because the documents produced by the applicant were flawed with substantive defects. Their perusal had revealed that the general conference which had elected the ex officio representatives and decided to change the official address of the applicant had been illegitimate. In particular, the delegates who had taken part in that conference had not been elected in accordance with the procedure prescribed by law and the applicant ’ s articles of association. The minutes of that conference could not therefore serve as a basis for amending the State Register. The refusal to amend the Register aimed at furthering democracy within the applicant party and protecting the rights of its members to participate in the regional and general conferences and thereby take part in the decision-making process. 72. The Government further disputed the applicant ’ s allegations that the refusal to amend the Register had obstructed its activities and had led to its dissolution. They submitted that the applicant had been active in 2006 and 2007. In particular, it had taken part in the regional elections, had submitted an annual activity report according to which it had spent more than a million roubles in 2006, and its representatives had participated in the dissolution proceedings. As for the dissolution, it had been ordered on different grounds which were not in any way related to the refusal of registration. Nor had the refusal of registration aimed at disrupting the applicant ’ s activities. The domestic authorities had simply exercised legitimate control over the applicant ’ s compliance with the registration procedure established by domestic law. They argued that the applicant had an obligation to respect domestic law and the domestic authorities were entitled, and had an obligation, to watch over its compliance with statutory requirements and procedures. In particular, it had been necessary to verify whether the applicant ’ s general assembly had been convened and held in accordance with domestic law and its articles of association in order to protect its members from taking arbitrary decisions in breach of democratic procedures. 73. The Government also stressed that the refusal of registration had not been definitive. The applicant had had an opportunity to correct the identified defects in the documents and re - submit its request for registration. In particular, a new general conference could have been convened at the request of one third of its regional branches and that conference could have elected new ex officio representatives for the applicant. However, the applicant had failed to take any steps to convene a new general conference and remedy the defects identified by the domestic authorities. 74. Finally, the Government referred to the cases of Cârmuirea Spirituală a Musulmanilor din Republica Moldova v. Moldova (( dec .), no. 12282/02, 14 June 2005) and Baisan for “ Liga Apararii Drepturilor Omului din România ” (the League for the Defence of Human Rights in Romania) v. Romania (( dec .), no. 28973/95, 30 October 1997 ), in which the refusal to register an association which had failed to observe the registration procedure had been found to be compatible with Articles 9 and 11 of the Convention. 2. The Court ’ s assessment (a) General principles 75. The Court reiterates that the right to form an association is an inherent part of the right set forth in Article 11. That citizens should be able to form a legal entity in order to act collectively in a field of mutual interest is one of the most important aspects of the right to freedom of association, without which that right would be deprived of any meaning. The way in which national legislation enshrines this freedom and its practical application by the authorities reveal the state of democracy in the country concerned (see Sidiropoulos and Others v. Greece, judgment of 10 July 1998, Reports of Judgments and Decisions 1998-IV, § 40). 76. Freedom of association is however not absolute and it must be accepted that where an association, through its activities or the intentions it has expressly or implicitly declared in its programme, jeopardises the State ’ s institutions or the rights and freedoms of others, Article 11 does not deprive the State of the power to protect those institutions and persons. Nonetheless, that power must be used sparingly, as exceptions to the rule of freedom of association are to be construed strictly and only convincing and compelling reasons can justify restrictions on that freedom. In determining whether a necessity within the meaning of paragraph 2 of these Convention provisions exists, the States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision embracing both the law and the decisions applying it, including those given by independent courts (see Gorzelik and Others, cited above § § 94 and 95; Sidiropoulos, cited above, § 40; and Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, § 84, ECHR 2001-IX). 77. When the Court carries out its scrutiny, its task is not to substitute its own view for that of the relevant national authorities but rather to review the decisions they delivered in the exercise of their discretion. This does not mean that it has to confine itself to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in the Convention and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 47, Reports of Judgments and Decisions 1998 ‑ I, and Partidul Comunistilor ( Nepeceristi ) and Ungureanu v. Romania, no. 46626/99, § 49, ECHR 2005-I (extracts)). 78. The Court has also confirmed on a number of occasions the essential role played in a democratic regime by political parties enjoying the freedoms and rights enshrined in Article 11 and also in Article 10 of the Convention. Political parties are a form of association essential to the proper functioning of democracy. In view of the role played by political parties, any measure taken against them affects both freedom of association and, consequently, democracy in the State concerned ( Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 87, ECHR 2003 ‑ II, and United Communist Party of Turkey, cited above, § 25 ). (b) Application to the present case 79. The Court observes that on 17 December 2005 the applicant held a general conference which elected its managers and ex officio representatives and decided to change its official address. It subsequently applied to the registration authority with a request to amend the State Register, as required by domestic law. The registration authority ordered that the applicant should submit the same set of documents as required for the registration of a newly established political party. It then refused to amend the Register, finding, on the basis of the documents submitted by the applicant, that the general conference had been illegitimate. 80. It was not disputed between the parties that the refusal to amend the State Register amounted to an interference with the applicant ’ s rights under Article 11 of the Convention ( compare Svyato-Mykhaylivska Parafiya v. Ukraine, no. 77703/01, § 123, 14 June 2007 ). The Court accepts the applicant ’ s argument that the refusal to register its ex officio representatives adversely affected its activities. By refusing to give effect to the decisions of the general conference of 17 December 2005 and recognise the ex officio representatives elected at that conference, the public authorities undoubtedly created serious difficulties in the applicant ’ s everyday life. Although there is no evidence to support the applicant ’ s claim that its activities were virtually paralysed as a result of the refusal to amend the Register, there can be no doubt that they were severely disrupted by the inability of the applicant ’ s ex officio representatives to act on its behalf. 81. It remains to be ascertained whether the interference with the applicant ’ s rights was “prescribed by law”, “pursued a legitimate aim” and was “necessary in a democratic society”. 82. The Court will first examine the applicant ’ s argument that the registration authority ’ s requirement to submit the same set of documents as for the registration of a newly established political party and its refusal to amend the State Register on account of irregularities in those documents had no basis in domestic law. It reiterates in this connection that according to its settled case-law, the expression “prescribed by law” requires that the impugned measure should have a basis in domestic law and also that the law be formulated with sufficient precision to enable the citizen to foresee the consequences which a given action may entail and to regulate his or her conduct accordingly (see, as a classic authority, Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, § 49). 83. The Court observes that domestic law is far from precise as to the procedure to be followed in cases of registration of amendments to the State Register. In contrast to the very detailed provisions governing procedure for registration of a newly established party, the procedure for registration of amendments is not determined. The Political Parties Act and the Registration of Legal Entities Act do not specify which documents, save for a simple notification, are to be submitted by the political party for registration of amendments and does not expressly mention the registration authority ’ s power to verify these documents and refuse registration (see paragraphs 41 and 46 above). 84. To justify the requirement to submit the same set of documents as for the registration of a newly established political party and the powers of the registration authority to refuse registration if those documents were incomplete or flawed, the domestic courts referred to section 3 2 § 7 of the Non-Profit Organisation Act (see paragraph 42 above). The Court however notes that § 7 was added to section 32 on 10 January 2006 and entered into force on 16 April 2006, while the refusals to amend the Register had been made on 16 January and 4 April 2006. The Court is struck by the domestic courts ’ reliance on a provision which was not in force at the material time and which could not therefore serve as a lawful basis for the refusal to amend the State Register. 85. Given that no other legal document or provision establishing the procedure for amending the Register was referred to in the domestic proceedings, the Court is unable to find that the domestic law was formulated with sufficient precision enabling the applicant to foresee which documents it would be required to submit and what would be the adverse consequences if the documents submitted were considered defective by the registration authority. The Court considers that the measures taken by the registration authority in this case lacked a sufficiently clear legal basis. 86. In view of the above conclusion, it would be unnecessary to examine whether the interference was proportionate to any legitimate aim pursued. However, in the present case the Court will nevertheless point out that it cannot but disagree with the Government ’ s argument that the interference with the applicant ’ s freedom of association was “necessary in a democratic society”. 87. The ground for the refusal to amend the Register was the registration authority ’ s finding that the general conference of 17 December 2005 had been convened and held in breach of the procedure prescribed by the applicant ’ s articles of association. The Court accepts that, in certain cases, the States ’ margin of appreciation may include a right to interfere – subject to the condition of proportionality – with an association ’ s internal organisation and functioning in the event of non-compliance with reasonable legal formalities applying to its establishment, functioning or internal organisational structure (see, for example, Ertan and Others v. Turkey ( dec .), no. 57898/00, 21 March 2006; Cârmuirea ..., cited above; and Baisan ..., cited above ) or in the event of a serious and prolonged internal conflict within the association ( see Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy ) and Others v. Bulgaria, nos. 412/03 and 35677/04, § 131, 22 January 2009 ). However, the authorities should not intervene in the internal organisational functioning of associations to such a far-reaching extent as to ensure observance by an association of every single formality provided by its own charter (see Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, no. 37083/03, § 78, ECHR 2009 ‑ ... ). 88. In the present case the registration authority discovered irregularities in the election of regional delegates for the general conference, finding for example that some regional conferences had been convened by unauthorised persons or bodies, some other regional conferences had been inquorate, minutes of several regional conferences did not mention the names of participants and some of the participants were not members of the applicant. The Court sees no justification for the registration authority to interfere with the internal functioning of the applicant to such an extent. It notes that domestic law did not provide for any detailed rules and procedures for convening regional conferences or electing delegates for the general conference. Nor did it establish any requirements as to the minutes of such conferences. The Court considers that it should be up to an association itself to determine the manner in which its conferences are organised. Likewise, it should be primarily up to the association itself and its members, and not the public authorities, to ensure that formalities of this type are observed in the manner specified in its articles of association (see Tebieti Mühafize Cemiyyeti and Israfilov, cited above, § 78, see also the Venice Commission Guidelines and explanatory report on legislation of political parties: specific issues in paragraph 58 above ). In the absence of any complaints from the applicant ’ s members concerning the organisation of the general conference of 17 December 2005 or the regional conferences preceding it, the Court is not convinced by the Government ’ s argument that the public authorities ’ interference with the applicant ’ s internal affaires was necessary in the aim of protecting the rights of the applicant ’ s members. 89. In view of the above, the Court concludes that by refusing to amend the State Register, the domestic authorities went beyond any legitimate aim and interfered with the internal functioning of the applicant in a manner which cannot be accepted as lawful and necessary in a democratic society. 90. There has therefore been a violation of Article 11 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION ON ACCOUNT OF THE APPLICANT ’ S DISSOLUTION 91. The applicant complained of its dissolution for failure to comply with the requirements of minimum membership and regional representation. It relied on Article 11 of the Convention. A. Admissibility 92. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 93. The applicant submitted, firstly, that the requirements of minimum membership and regional representation were not justified under the second paragraph of Article 11. In particular, they were unreasonable and did not pursue any legitimate aim. The imposition of such requirements on political parties could not be justified by the interests of national security or public safety. Nor were they necessary for the prevention of disorder or crime or for the protection of the rights and freedoms of others. 94. Further, the applicant disputed the findings made by the domestic authorities and courts. It argued that the inspections of its membership situation had been carried out by the authorities in a perfunctory manner. The inspections had been unsystematic and had not followed any uniform methodology or clearly defined set of rules established by law. The applicant ’ s members had been questioned over the phone about their membership status and some of them had been intimidated by the authorities. The authorities had required the regional branches to produce countless documents, different for each regional branch. The dissolution proceedings had not been adversarial as the applicant had been denied an opportunity to submit evidence showing the number of its members. The applicant insisted that it had 63,926 members and 57 regional branches, 51 of which had more than 500 members. It had therefore complied with the statutory requirements of minimum membership and regional representation. 95. The applicant finally submitted that its dissolution had not only violated its freedom of association, but had also restricted its freedom to participate in elections, as under Russian law political parties were the only type of public association entitled to nominate candidates in elections to State bodies. (b) The Government 96. The Government submitted that the interference had been prescribed by law, namely by the amended section 3 § 2 and section 41 of the Political Parties Act and section 2 of the Amending Act (see paragraphs 33, 34 and 54 above). In particular, the above provisions required that, by 1 January 2006, all political parties should increase their membership to 50,000 persons and the membership of their regional branches to 500 persons. It also followed from those legal provisions that if a party had not increased its membership it had to reorganise itself into a public association or be dissolved. The applicable domestic law was accessible and formulated in clear terms so that the applicant had been able to foresee that failure to comply with the above requirements would lead to its dissolution. 97. To justify the imposition of the requirements of minimum membership and regional representation on political parties, the Government referred to their special status and role as associations taking part in elections and representing citizens ’ interests in State bodies. They argued that those requirements pursued the legitimate aim of protecting the constitutional foundations of the Russian Federation and the rights and legitimate interests of others. Their “necessity” had been confirmed by the Constitutional Court (see paragraphs 55 and 56 above). In particular, the requirements of minimum membership and regional representation promoted the process of consolidation of political parties, created prerequisites for the establishment of large, strong parties, prevented excessive parliamentary fragmentation and thereby ensured normal functioning of the parliament and furthered the stability of the political system. The above requirements were not discriminatory because they did not prevent the emergence of diverse political programmes and were applied in equal measure to all political parties, irrespective of their ideology, aims and purposes set out in their articles of association. Nor did they impair the very essence of the citizens ’ right to freedom of association, as political parties which did not meet that requirement had an opportunity to reorganise themselves into public associations. The Government also argued that the special features of the social and political situation prevailing in contemporary Russia had to be taken into account when determining whether the statutory requirements imposed on political parties were justified ( they referred to Igor Artyomov v. Russia ( dec .), no. 17582/05, 7 December 2006). 98. The Government further submitted that freedom of association was not absolute. Political parties had an obligation to respect domestic law and the authorities were entitled to watch over their activities to ensure that they were compatible with statutory requirements. As the applicant had breached the requirements of minimum membership and regional representation, and had thereby violated the rights and interests of those parties that complied with the requirements, it had been necessary to dissolve it. The dissolution had not been automatic as the applicant had been given a choice between bringing the number of its members and regional branches into compliance with the amended law to retain its status as a political party or reorganising itself into a public association. However, it had failed to make use of that choice and had therefore become subject to dissolution. It was also noteworthy that the applicant had not been dissolved or banned on account of extremist activities. It was therefore possible for it to establish a new party under the same name. The applicant ’ s members could either establish a new party or join another existing party. 99. Finally, the Government submitted that the dissolution proceedings had been fair and adversarial, and the domestic courts had examined and assessed the evidence submitted by the parties and made reasoned findings. 2. The Court ’ s assessment 100. It is common ground between the parties that the applicant ’ s dissolution amounted to interference with its rights under Article 11 of the Convention. It is not contested that that the interference was “prescribed by law”, notably sections 3 § 2 and 41 § 3 of the Political Parties Act and section 2 §§ 1 and 4 of the Amending Act (see paragraph 33, 34 and 54 above). 101. The Court further observes that several aims were relied upon by the Government and the Constitutional Court to justify the applicant ’ s dissolution for failure to comply with the requirements of minimum membership and regional representation, namely protecting the democratic institutions and constitutional foundations of the Russian Federation, securing its territorial integrity and guaranteeing the rights and legitimate interests of others (see paragraphs 55, 56 and 97 above). It considers that the defence of territorial integrity is closely linked with the protection of “national security” (see, for example, United Communist Party of Turkey, cited above, § 40), while the protection of a State ’ s democratic institutions and constitutional foundations relates to “the prevention of disorder”, the concept of “order” within the meaning of the French version of Article 11 encompassing the “institutional order” (see Basque Nationalist Party – Iparralde Regional Organisation v. France, no. 71251/01, § 43, ECHR 2007 ‑ VII, and, mutatis mutandis, Gorzelik and Others, cited above, § 76). The Court is prepared to accept that the contested statutory requirements and the applicant ’ s dissolution for failure to comply with them were intended to protect national security, prevent disorder and guarantee the rights of others, and therefore pursued legitimate aims set out in the second paragraph of Article 11 of the Convention. 102. It remains to be ascertained whether the interference “was necessary in a democratic society”. The Court reiterates that in view of the essential role played by political parties in the proper functioning of democracy, the exceptions set out in paragraph 2 of Article 11 are, where political parties are concerned, to be construed strictly; only convincing and compelling reasons can justify restrictions on such parties ’ freedom of association (see case-law cited in paragraphs 76 to 78 above ). It is also significant that the interference at issue in the present case was radical: the applicant party was dissolved with immediate effect. Such a drastic measure requires very serious reasons by way of justification before it can be considered proportionate to the legitimate aim pursued; it would be warranted only in the most serious cases (see The United Macedonian Organisation Ilinden – PIRIN and Others v. Bulgaria, no. 59489/00, § 56, 20 October 2005, with further references). 103. The Court notes at the outset that the applicant, created in 1990, was one of the oldest Russian political parties. There was nothing in its articles of association or programme to suggest that it was not a democratic party. It was never claimed that during its seventeen years of existence it ever resorted to illegal or undemocratic methods, encouraged the use of violence, aimed to undermine Russia ’ s democratic and pluralist political system or pursued objectives that were racist or likely to destroy the rights and freedoms of others. The sole reason for its dissolution was its failure to comply with the requirements of minimum membership and regional representation. 104. The Court must ascertain whether the applicant ’ s dissolution for failure to comply with the above requirements was proportionate to the legitimate aims advanced by the Government. It will, however, first examine whether the opportunity to reorganise into a public association, provided for in the domestic law, counterbalanced the negative effects of the interference. (a) Possibility of reorganising into a public association 105. The Court takes note of the Government ’ s argument that the applicant had been given an opportunity to reorganise itself into a public association. However, it has already found it unacceptable that an association should be forced to take a legal shape its founders and members did not seek, finding that such an approach, if adopted, would reduce the freedom of association of the founders and members so as to render it either non-existent or of no practical value (see Zhechev v. Bulgaria, no. 57045/00, § 56, 21 June 2007 ). 106. The Court reiterates that political parties have a special status. The only type of association which can come to power, political parties have the capacity to influence the whole of the regime in their countries. By the proposals for an overall societal model which they put before the electorate and by their capacity to implement those proposals once they come to power, political parties differ from other organisations which intervene in the political arena (see Refah Partisi, cited above, § 87). 107. It is significant that in Russia political parties are the only actors in the political process capable of nominating candidates for election at the federal and regional levels. A reorganisation into a public association would therefore have deprived the applicant of an opportunity to stand for election. Given that participation in elections was one of the applicant ’ s main aims specified in its articles of association (see paragraph 10 above), the status of a public association would not correspond to its vocation. The Court accepts that it was essential for the applicant to retain the status of a political party and the right to nominate candidates for elections which that status entailed. 108. The Court must next ascertain, against this background, whether the applicant ’ s dissolution for failure to comply with the requirements of minimum membership and regional representation may be considered necessary in a democratic society. It will examine the two requirements in turn. ( b ) Failure to comply with the minimum membership requirement 109. The first ground for the applicant ’ s dissolution was its failure to comply with the minimum membership requirement, which was introduced for the first time in 2001, when political parties were required to have no fewer than 10,000 members. In 2004 the required minimum membership was increased to 50,000 persons. In 2009 domestic law was again amended to provide for a gradual decrease of minimum membership to 40,000 persons by 1 January 2012. The minimum membership of a regional branch was also changed on the same occasions (see paragraphs 30 to 39 above). 110. The Court notes that the minimum membership requirement is not unknown among the member States of the Council of Europe. The legislation of at least thirteen States establishes a minimum membership requirement for political parties (see paragraph 62 above). However, even if no common European approach to the problem can be discerned, this cannot in itself be determinative of the issue (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 85, ECHR 2002 ‑ VI ). The Court notes that the required minimum membership applied in Russia is quite the highest in Europe. In order to verify that it is not disproportionate, the Court must assess the reasons advanced by the legislator and the Constitutional Court to justify it. 111. The explanatory notes to the draft law on political parties, the resolutions by the State Duma ’ s committees, and the rulings of the Constitutional Court (see paragraphs 31, 32, 55 and 56 ) justify the introduction of the minimum membership requirement and its subsequent increase by the necessity to strengthen political parties and limit their number in order to avoid disproportionate expenditure from the budget during electoral campaigns and prevent excessive parliamentary fragmentation and, in so doing, promote stability of the political system. 112. The Court is not convinced by those arguments. It notes that in Russia political parties do not have an unconditional entitlement to benefit from public funding. Under domestic law only those political parties that have taken part in the elections and obtained more than 3% of the votes cast are entitled to public financing (see paragraph 51 above). The existence of a certain number of minor political parties supported by relatively small portions of the population does not therefore represent a considerable financial burden on the State treasury. In the Court ’ s view, financial considerations cannot serve as a justification for limiting the number of political parties and allowing the survival of large, popular parties only. 113. As to the second argument, related to the prevention of excessive parliamentary fragmentation, the Court notes that this is achieved in Russia through the introduction of a 7% electoral threshold (see paragraph 50 above), which is one of the highest in Europe (see Yumak and Sadak v. Turkey [GC], no. 10226/03, § § 64 and 129, 8 July 2008 ). It is also relevant in this connection that a political party ’ s right to participate in elections is not automatic. Only those political parties that have seats in the State Duma or have submitted a certain number of signatures to show that they have wide popular support (200,000 signatures at the relevant time, recently decreased to 150,000 signatures) may nominate candidates for elections (see paragraph 49 above). In such circumstances the Court is not persuaded that to avoid excessive parliamentary fragmentation it was necessary to impose additional restrictions, such as a high minimum membership requirement, to limit the number of political parties entitled to participate in elections. 114. The Court is also unable to agree with the argument that only those associations that represent the interests of considerable portions of society are eligible for political party status. It considers that small minority groups must also have an opportunity to establish political parties and participate in elections with the aim of obtaining parliamentary representation. It has already held that, although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of the majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position (see Gorzelik and Others, cited above, § 90). The voters ’ choice must not be unduly restricted and different political parties must be ensured a reasonable opportunity to present their candidates at elections (see, mutatis mutandis, Yumak and Sadak, cited above, § 108). 115. Further, the Court observes that domestic law requires that political parties not only prove their compliance with the minimum membership requirement at the moment of their establishment and registration, but that they should subsequently submit annual reports to the registration authority, not only concerning their activities but also confirming their membership situation (see paragraph 52 above). The authorities also have power to conduct inspections once a year and issue warnings or start dissolution proceedings if a political party has an insufficient number of members (see paragraphs 53 and 54 above). The Court is unable to discern any justification for such intrusive measures subjecting political parties to frequent and comprehensive checks and a constant threat of dissolution on formal grounds. If these annual inspections are aimed at verifying whether the party has genuine support among the population, election results would be the best measure of such support. 116. The Court also notes the uncertainty generated by the changes in the minimum membership requirement in recent years (see paragraph 109 above). The obligation to bring the number of their members in line with the frequently changing domestic law, coupled with regular checks on the membership situation, imposed a disproportionate burden on political parties. In this regard, the Court takes note of the opinion of the Venice Commission that altering the terms and conditions for obtaining and retaining the status of a political party may be seen as affording an opportunity of unjustifiably dissolving political parties (see paragraph 58 above). It also refers to the Venice Commission Code of Practice, which warns of the risk that frequent changes to electoral legislation will be perceived, rightly or wrongly, as an attempt to manipulate electoral laws to the advantage of the party in power (see paragraph 61 above). 117. The Court observes in this connection that the introduction and the subsequent increase of the minimum membership requirement was one of the aspects of the political reform started in 2001, whose other measures consisted, in particular, of raising the electoral threshold from 5% to 7% and banning electoral blocks and independent candidates from participating in elections (see paragraphs 48 and 50 above). There can be little doubt that all those measures had an evident impact on the opportunities for various political forces to participate effectively in the political process and thus affected pluralism. In particular, the fact that only fifteen political parties out of forty-eight were able to meet the increased minimum membership requirement (see paragraph 35 above) demonstrates the effect of such an increase. 118. The Court reiterates that where the authorities introduce significant restrictions on the rights of political parties, and in particular where such changes have a detrimental impact on the opposition, the requirement that the Government produce evidence to demonstrate that the amendments were justified is all the more pressing (see, mutatis mutandis, Tănase v. Moldova [GC], no. 7/08, § 169, ECHR 2010 ‑ ... ). In the present case, no convincing explanation has been provided for increasing the minimum membership requirement. 119. In the light of the above considerations, the Court is unable to accept the view that any minimum membership requirement would be justified unless it permitted the establishment of one political party only (see paragraph 55 above). In the Court ’ s opinion, a minimum membership requirement would be justified only if it allowed the unhindered establishment and functioning of a plurality of political parties representing the interests of various population groups. It is important to ensure access to the political arena for different parties on terms which allow them to represent their electorate, draw attention to their preoccupations and defend their interests (see, mutatis mutandis, Christian Democratic People ’ s Party v. Moldova, no. 28793/02, § 67, ECHR 2006-II). 120. Turning back to the particular circumstances of the applicant ’ s case, the Court notes that the applicant had existed and participated in elections since 1990. It adjusted its membership and went through a re-registration procedure following the introduction of a minimum membership requirement in 2001. It was dissolved in 2007, however, after a drastic five- fold increase of the minimum membership requirement. The Court considers that such a radical measure as dissolution on a formal ground, applied to a long-established and law-abiding political party such as the applicant, cannot be considered “necessary in a democratic society ”. ( c ) Insufficient number of regional branches 121. The second reason for the applicant ’ s dissolution was the authorities ’ finding that it did not have a sufficient number of regional branches with more than 500 members, as required by the legal provisions then in force. 122. The requirement that a political party should have regional branches in the majority of the Russian regions was, like the minimum membership requirement, introduced for the first time in 2001 (see paragraph 30 above). It follows from the Ruling of the Constitutional Court of 1 February 2005 (see paragraph 55 above) that its rationale was to prevent the establishment, functioning and participation in elections of regional parties, which, according to the Constitutional Court, were a threat to the territorial integrity and unity of the country. Accordingly, the Court has to examine whether the ban on regional political parties is compatible with the Convention. 123. The Court has previously emphasised that there can be no justification for hindering a public association or political party solely because it seeks to debate in public the situation of part of the State ’ s population, or even advocates separatist ideas by calling for autonomy or requesting secession of part of the country ’ s territory. In a democratic society based on the rule of law, political ideas which challenge the existing order without putting into question the tenets of democracy, and whose realisation is advocated by peaceful means, must be afforded a proper opportunity of expression through, inter alia, participation in the political process. However shocking and unacceptable the statements of an association ’ s leaders and members may appear to the authorities or the majority of the population and however illegitimate their demands may be, they do not appear to warrant the association ’ s dissolution. A fundamental aspect of democracy is that it must allow diverse political programmes to be proposed and debated, even where they call into question the way a State is currently organised, provided that they do not harm democracy itself (see Tănase, cited above, § 167; The United Macedonian Organisation Ilinden – PIRIN and Others, cited above, §§ 57-62; United Communist Party of Turkey, cited above, § 57; and Socialist Party and Others v. Turkey, 25 May 1998, §§ 45 and 47, Reports 1998-III ). 124. The Court has also found that a problem might arise under the Convention if the domestic electoral legislation tended to deprive regional parties of parliamentary representation (see Yumak and Sadak, cited above, § 124). It is therefore important that regional parties should be permitted to exist and stand for election, at least at the regional level. 125. The Court also refers to the guidelines of the Venice Commission, which found the requirement of regional or territorial representation for political parties to be problematic and recommended that legislation should provide for the possibility of creating parties on a regional or local level (see paragraphs 58 and 59 above). 126. Further, the Court observes that very few Council of Europe member States prohibit regional parties or require that a political party should have a certain number of regional or local branches (see paragraphs 62 and 64 above). Georgia is the only country that explicitly prohibits regional political parties. Two countries, Ukraine and Armenia, require that a political party have a certain number of regional branches, while two more countries, Moldova and Romania, require political parties to have members domiciled in a certain number of regions. The Court considers that a review of practice across Council of Europe member States reveals a consensus that regional parties should be allowed to be established. However, notwithstanding this consensus, a different approach may be justified where special historical or political considerations exist which render a more restrictive practice necessary (see Tănase, cited above, § 172, and, mutatis mutandis, Refah Partisi, cited above, § 105 ). 127. The Court takes note of the Constitutional Court ’ s reference to Russia ’ s special historico -political context characterised by the instability of the newly established political system facing serious challenges from separatist, nationalist and terrorist forces (see paragraph 55 above). The Court emphasises the special position of Russia, which relatively recently set out on the path of democratic transition. The Court accepts that there was likely to be a special interest in ensuring that, upon the collapse of the Soviet Union and the onset of democratic reform in 1991, measures were taken to secure stability and allow the establishment and strengthening of fragile democratic institutions. Accordingly, the Court does not exclude that in the immediate aftermath of the disintegration of the Soviet Union a ban on establishing regional political parties could be justified. 128. However, the Court finds it significant that the ban was not put in place in 1991 but in 2001, some ten years after Russia had started its democratic transition. In the circumstances, the Court considers the argument that the measure was necessary to protect Russia ’ s fragile democratic institutions, its unity and its national security to be far less persuasive. In order for the recent introduction of general restrictions on political parties to be justified, particularly compelling reasons must be advanced. However, the Government have not provided an explanation of why concerns have recently emerged regarding regional political parties and why such concerns were not present during the initial stages of transition in the early 1990s (see, for similar reasoning, Tănase, cited above, § 174). 129. The Court considers that with the passage of time, general restrictions on political parties become more difficult to justify. It becomes necessary to prefer a case - by - case assessment, to take account of the actual programme and conduct of each political party rather than a perceived threat posed by a certain category or type of parties (see, mutatis mutandis, Tănase, cited above, § 175, and Ādamsons v. Latvia, no. 3669/03, § 123, 24 June 2008 ). In the Court ’ s opinion, there are means of protecting Russia ’ s laws, institutions and national security other than a sweeping ban on the establishment of regional parties. Sanctions, including in the most serious cases dissolution, may be imposed on those political parties that use illegal or undemocratic methods, incite to violence or put forward a policy which is aimed at the destruction of democracy and flouting of the rights and freedoms recognised in a democracy. Such sanctions are concerned with identifying a credible threat to the national interest, in particular circumstances based on specific information, rather than operating on a blanket assumption that all regional parties pose a threat to national security. 130. The present case is illustrative of a potential for miscarriages inherent in the indiscriminate banning of regional parties, which is moreover based on a calculation of the number of a party ’ s regional branches. The applicant, an all-Russian political party which never advocated regional interests or separatist views, whose articles of association stated specifically that one of its aims was promotion of the unity of the country and of the peaceful coexistence of its multi-ethnic population (see paragraph 10 above) and which was never accused of any attempts to undermine Russia ’ s territorial integrity, was dissolved on the purely formal ground of having an insufficient number of regional branches. In those circumstances the Court does not see how the applicant ’ s dissolution served to achieve the legitimate aims cited by the Government, namely the prevention of disorder or the protection of national security or the rights of others. (d) Overall conclusion 131. In view of the foregoing, the Court finds the domestic courts did not adduce “relevant and sufficient” reasons to justify the interference with the applicant ’ s right to freedom of association. The applicant ’ s dissolution for failure to comply with the requirements of minimum membership and regional representation was disproportionate to the legitimate aims cited by the Government. There has accordingly been a violation of Article 11 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 132. The applicant further complained under Article 6 § 1 of the Convention that the dissolution proceedings had been unfair. However, having regard to all the materials in its possession, the Court finds that they do not disclose any appearance of a violation of Article 6. It follows that this complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 133. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 134. The applicant claimed 5,990,140.98 Russian roubles (RUB) in respect of pecuniary damage, of which RUB 1,996,669.78 represented the expense of holding its general conference of 17 December 2005, while the remaining RUB 3,993,471.2 represented expenses that would be required to establish a new political party. 135. The Government submitted that there was no causal link between the complaints lodged by the applicant and the claims in respect of the expenses incurred in connection with the general conference. The claims relating to the establishment of a new political party were hypothetical and not supported by any documents. 136. The Court observes that the applicant did not submit any claim for non-pecuniary damage. As regards the pecuniary damage alleged, it does not discern any causal link between the violations found and the applicant ’ s expenditure on the organisation of the general conference. The claims relating to the establishment of a new political party are speculative and are not supported by any documents. The Court therefore rejects the claim for pecuniary damage. B. Costs and expenses 137. Relying on legal fee agreements, the applicant claimed RUB 433,500 for the legal fees incurred before the domestic courts and RUB 250,000 for those incurred before the Court. 138. The Government submitted, in respect of the expenses allegedly incurred before the domestic courts, that the legal fee agreements produced by the applicant related to the proceedings concerning the dissolution of the applicant ’ s regional branches. They were not therefore connected with the applicants ’ complaints. The claim for the expenses incurred in connection with the proceedings before the Court was excessive. 139. The Court reiterates that legal costs and expenses are only recoverable in so far as they relate to the violation found (see Van de Hurk v. the Netherlands, 19 April 1994, § 65, Series A no. 288 ). It accepts the Government ’ s argument that the documents produced by the applicant in support of its claims for legal fees incurred before the domestic courts did not relate to the proceedings examined in the present case. It therefore rejects this part of the claim. On the other hand, regard being had to the documents in its possession, the Court considers it reasonable to award the sum of 6,950 euros (EUR) in respect of the legal fees incurred in the proceedings before the Court, plus any tax that may be chargeable to the applicant on that amount. C. Default interest 140. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 11 of the Convention on account both of the authorities’ refusal to amend information about the applicant party in the State register and of the party’s dissolution. With regard to the latter, it found that the Russian courts had not adduced relevant and sufficient reasons to justify the interference with the applicant party’s right to freedom of association and the party’s dissolution for failure to comply with the requirements of minimum membership and regional representation had been disproportionate to the legitimate aims cited by the Russian Government. In particular, in the Court’s view, there would be means of protecting Russia’s laws, institutions and national security other than a sweeping ban on the establishment of regional parties. Moreover, the applicant party, which had existed and participated in elections since 1990, had never advocated regional interests or separatist views, indeed one of its aims had been promotion of the country’s unity. |
1,072 | Right to respect for private and family life, home and correspondence (Article 8 of the Convention) | II. RELEVANT DOMESTIC LAW 67. Pursuant to section 4-1 of the Tax Assessment Act ( ligningsloven ) of 13 June 1980 the tax subject had a general duty to provide relevant information to the tax authorities carefully and loyally and ought to contribute to his or her tax liability being clarified in due time and being complied with. He or she ought to draw the attention of the authority concerned of errors in the assessment and payment of the taxes. 68. The disputed measures in the present case had been taken pursuant to section 4-10 (1), which – supplementing the duty of information above – authorised the tax authorities to order a taxpayer: "(a) To present, hand out or dispatch its books of account, vouchers, contracts, correspondence, governing board minutes, accountancy minutes and other documents of significance with respect to the tax assessment of the taxpayer and the audit thereof. ... (b) To grant access for on-site inspection, survey, review of the companies’ archives, estimation etc. of property, constructions, devices with accessories, counting of livestock, stock of goods and raw materials, etc." Under section 4-10 (3), when required by the tax authorities, the taxpayer had a duty to attend an investigation as described in section 4-10 (1), to provide necessary guidance and assistance and to give access to office and business premises. 69. Section 3-5 (1) of the Tax Assessment Act gave the taxpayer the right to be present during the review of the archive: "The taxpayer or the party who has an obligation to disclose information shall be given reasonable notification and have the right to be present and express views during the investigation that takes place pursuant to section 4-10 (1) (b), or section 6 ‑ 15. This applies only in so far as it may be implemented without risking the objective of the investigation." Pursuant to section 3-5 (2), when an investigation had been carried out according inter alia to section 4-10, a report or protocol was to be drawn up describing the factual information collected, in so far as it pertained to the relevant tax subject. 70. A duty of confidentiality of tax information was set out in section 3 ‑ 1 (1): “Everyone who assumes or has assumed a task, post or commission linked to the tax administration shall prevent that persons who are not concerned obtain access to or knowledge of what he in the performance of his work has learned about a person’s assets or income or other financial-, business- or personal matters. Upon taking up such task, post or commission he shall give a written declaration on whether he is aware of and will comply with the duty of confidentiality.” 71. Section 3-6 laid down a right to complain in cases where the taxpayer had been ordered to give access to archives pursuant to section 4 ‑ 10 (1) (b): Section 3-6 (1) "A person ordered to provide information or to cooperate with an inspection pursuant to Chapter 4 or 6, may lodge a complaint if he considers that he has no duty to comply, or is prohibited by law from doing so. ..." Section 3-6 (4) "The order shall be complied with even if the complaint has not been decided, unless the person who has issued the instruction grants a stay of implementation of the measure. Such a stay shall be granted where the person who has given the order finds that the complaint raises reasonable doubt as to the legality of the order. A stay shall be granted where the order concerns the presentation of documents which are sealed and deposited according to regulations issued by the Ministry." 72. Various provisions supplementing the Tax Assessment Act may be found in the Regulations on Accountancy Audit of 23 December 1983 no. 1839. Pursuant to Article 3, the tax subject ought to be informed about his or her duty to provide information and his right to complain about an order to assist in the audit. 73. Article 4 of the Regulations provided that in the event of a complaint about an order to produce documents the documents in question ought to be placed in a sealed envelope. The person conducting the review could, where appropriate, decide that the envelope should be deposited with him or her until the complaint has been decided. If the complaint was upheld, the envelope ought to be returned. If not, the complainant ought to be informed accordingly. Unless it would lead to considerable delay, the tax subject ought to be given an opportunity to be present when the seal is broken. 74. Article 5 required – in conformity with section 3-5(2) of the Act – the person conducting the review to draw up a report setting out in detail the information that should be included in the report. Under Article 6 a copy was to be sent to the tax subject. 75. According to Article 7, documents provided to the tax authorities pursuant to section 4-10 of the Act ought to be returned as soon as possible, possibly after copies had been taken of specific documents deemed to be of significance for the tax assessment or the tax audit. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 80. The applicant companies complained that their right to respect for privacy, home and correspondence under Article 8 of the Convention had been infringed as a result of the Supreme Court’s judgment of 20 November 2007 upholding the Directorate of Taxation’s decision of 1 June 2004. This Article reads: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 81. The Supreme Court’s judgment had upheld the local tax authorities’ order of 9 March 2004 that B.L.H. make a copy of the contents of the server located at Hopsnesveien 127 available for review in the tax authorities’ offices. The applicant companies disputed that the interference was “in accordance with the law”. They argued that it had exceeded the wording of the relevant statutory provisions and that the law in question failed to fulfil the quality requirements in the Court’s case-law. Moreover, the reasons relied on by the Supreme Court, although partly relevant, had not been sufficient to establish convincingly that the “seizure” of the backup tape had been necessary in a democratic society. There had been no effective safeguards against abuse. In any event, the interference could not be considered strictly proportionate to the legitimate aims pursued. A significant proportion of the seized backup tape had contained information that was irrelevant for tax audit purposes and had included private material pertaining to employees and other persons working for the applicant companies. The Supreme Court’s majority had underestimated the seriousness of the interference arising from the risk of spreading and misuse of sensitive personal data. 82. The Government disputed the applicant companies’ complaint. A. Admissibility 1. Requirement of exhaustion of domestic remedies (a) The Government’s submissions 83. The Government maintained that the applicant companies had failed to exhaust domestic remedies. Although the applicant companies had referred to Article 8 of the Convention in their appeal to the Supreme Court, they had not argued that there had been a violation of that provision. They had merely maintained that section 4-10 of the Tax Assessment Act had to be interpreted in the light of Article 8. In this connection, the Government referred to certain passages in the applicant companies’ additional pleadings to the Supreme Court dated 3 October 2007 (apparently referring to those of 6 July 2007, quoted at paragraph 37 above). 84. The fact that the Convention had merely been relied upon as a general argument in the interpretation of provisions of domestic law, and that no violation – explicitly or in substance – had been alleged was further confirmed by the fact that the Supreme Court had not ruled on whether Article 8 of the Convention had been violated. More importantly, in its judgment the Supreme Court had made no reference to Article 8, either in its own reasoning or in its rendering of the parties’ final submissions at the hearing before it. The applicant companies’ pleadings had merely related to the measures taken by the tax authorities in requesting access to the server, notably concerning how to examine the server and whether a backup copy of the server could be requested for subsequent inspection at the tax office (see paragraph 39 above). 85. The substance of the complaints pursued by the applicant companies before the national courts could not be said to have raised issues that the Supreme Court had had any reason to examine under Article 8 of the Convention. (b) The applicant companies’ submissions 86. The applicant companies, disputing the Government’s contention, maintained that the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention had been fulfilled. The core issue in the domestic proceedings had been whether the tax authorities had had the necessary statutory authority to carry out the contested measures thereby coercing them to surrender the relevant backup tape for inspection at the tax office. That issue was now the subject of their complaint to the Court. Referring to their written pleadings before the Supreme Court (see paragraphs 31-37 above) and also to certain parts of the High Court’s reasoning (see paragraph 30 above), they stressed that they had clearly raised before the national courts the matter they were now pursuing under the Convention. As could be seen from their domestic pleadings, the applicant companies had expressly invoked Article 8 of the Convention and had clearly argued the substance of their complaint before the national courts, which thus had had the opportunity, both in fact and in law, to assess the matter under this Article. (c) The Court’s assessment 87. The Court cannot but note that in their written pleading to the Supreme Court the applicant companies challenged in the main the High Court’s findings with regard to the lawfulness of the inspection of archives other than those pertaining to B.L.H. and of the copying of all the data on the server. In this connection they argued inter alia that contrary to Article 8 of the Convention the inspection lacked a legal basis in national law and that the copying could not be justified as proportionate or “necessary” for the purposes of this provision (see paragraphs 32-36 above). In their additional written pleadings the applicant companies further clarified that their arguments drawn from Article 8 of the Convention were not new but had been raised previously (see paragraph 37 above). In the absence of any express indication to the contrary in the Supreme Court’s judgment or otherwise, the Court finds no reason to assume that the Article 8 plea was subsequently withdrawn or not pursued before the Supreme Court. Thus, the Court is satisfied that the applicant companies’ grievances were sufficiently raised, expressly or in substance, to enable the Supreme Court to consider the matters now complained of under the Convention. Indeed, the Supreme Court did take the opportunity, albeit without reference to Article 8 of the Convention, to assess the applicable safeguards of various interests, including those in place for the protection of privacy ( personvernhensyn ). Accordingly, the applicants must be considered to have fulfilled the requirement of exhaustion of domestic remedies pursuant to Article 35 § 1 of the Convention. The Government’s submission to the contrary must therefore be dismissed. 2. The “victim” requirement 88. The Government further argued that, whilst the applicant companies had maintained that the backup copy of the server had contained e-mails to and from different people working for the applicant companies and that an inspection of the tape would interfere with their “legitimate right for privacy at work”, no one working for them had applied before the Court. The matters which the applicant companies were pursuing under the Convention concerned natural persons working for them, not the companies themselves. Thus the applicant companies could not be regarded as “victims” within the meaning of Article 34. The Government invited the Court to declare this part of the application inadmissible as being incompatible ratione personae. 89. The applicant companies did not dispute that employees, contracting parties, lawyers and other affected third parties must exhaust national remedies before they could enjoy an independent right to submit a complaint before the Court. However, this did not mean that the Court was prevented from considering the interests in question in its assessment of the applicant companies’ protection under Article 8 of the Convention. 90. The Court notes that the applicant companies’ interest in protecting the privacy of their employees and other persons working for them did not constitute a separate complaint but only an aspect of their wider complaint under Article 8 of the Convention. The fact that no such individual person was a party to the domestic proceedings nor brought an application under the Convention should not prevent the Court from taking into account such interests in its wider assessment of the merits of the application. 3. Conclusion 91. Accordingly, the Court rejects the Government’s requests to declare the application inadmissible on grounds of failure to exhaust domestic remedies. It also dismisses their invitation to declare part of the application inadmissible as being incompatible ratione personae. The Court further considers that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Whether there was an interference with an Article 8 right pertaining to the applicant companies (a) The applicant companies’ submissions 92. The applicant companies pointed out that the essential object and purpose of Article 8 was to protect the individual against arbitrary interference by the public authorities (see Niemietz v. Germany, 16 December 1992, § 31, Series A no. 251 ‑ B), and extended to companies and legal persons. The instant case concerned a “seizure” (according to the applicants’ terminology) that had not only been very comprehensive (see paragraph 14 above) but had also taken place in a manner that bore witness to arbitrariness and abuse of power. The interference had also involved a number of interests beyond those of the companies in running their business without arbitrary and unlawful interference by the authorities. The “seizure” of 9 March 2004 had, moreover, had a distinct coercive character, as illustrated by the fact that the authorities had brought in computer experts to execute the order and by their stance on the matter in the ensuing judicial proceedings. A failure to comply with a section 4-10 (1) (b) order was punishable by imprisonment of up to two years. 93. In the case of B.L.H., particular reference was made to the fact that, at a meeting on 9 March 2004 held at B.L.H.’s office, the tax authorities had demanded a mirror copy of the server with the assistance of third parties, without prior notice and with reference to legislation authorising penal sanctions. That demand had in itself entailed a violation of B.L.H.’s right to respect for its “home”, as had in any event the manner in which the tax authorities – de facto – had obtained the backup tape. At the material time, the tax authorities had been of the opinion that the order could be enforced. 94. In a similar way, Kver’s and I.O.R.’s right to respect for their “home” had been violated, notably as a result of the fact that the tax authorities had “seized” the backup copy of the server on which the companies had been renting capacity, located in the same building as the companies’ offices (see Buck v. Germany, no. 41604/98, § 31, ECHR 2005 ‑ IV). 95. Moreover, the “seizure” had amounted to an interference with the applicant companies’ “right to respect for ... correspondence”, which implied a legitimate expectation as regards the privacy of letters, e-mails and phone calls (see Copland v. the United Kingdom, no. 62617/00, § 42, ECHR 2007 ‑ I) and a right to uninterrupted and uncensored communication with others. The applicant companies relied on Wieser and Bicos Beteiligungen GmbH v. Austria (no. 74336/01, § 45, ECHR 2007 ‑ IV), where the search and seizure of electronic data in relation to a legal person had been found to constitute an interference with the applicant’s right to respect for correspondence. In so far as the impugned “seizure” concerned documents covered by statutory confidentiality, they also prayed in aid Niemietz (cited above, § 37). 96. The “seizure” of the backup tape had also entailed an interference with the applicant companies’ right to respect for “private life” within the meaning of Article 8, which in essence acknowledged that one could expect protection from arbitrary interference within a certain sphere. The “seizure” had concerned purely private material belonging to the employees as well as professional material related to the companies as such and to the professional activities of individual employees. The Court had already accepted that the concept of “private life” could also encompass "professional activities" in a strict sense (ibid., § 29). 97. The protection afforded to a private company under Article 8 should not be viewed as limited to legal persons but should apply also to a group of individuals striving to achieve common goals. Thus, the protection of people working for a company – as a group – against arbitrary interference in their common effort, ought to be considered as inherent in the same protection afforded to a company. This had clearly not been the situation in respect of employees of and people working for the applicant companies, whose family pictures, private and professional correspondence as well as numerous work-related documents that were not relevant to the tax audit had been “seized” by the domestic authorities and thus exposed to them. Apart from the strong interest in protecting the privacy of their employees, contracting parties and other third parties, the applicant companies also had a legal obligation to protect personal data. Accordingly, a comprehensive “seizure” would affect significant societal interests, which deserved consideration when assessing the scope of the protection of Article 8. It could not be a condition for such protection that all affected parties must initiate legal proceedings. (b) The Government’s submissions 98. In the Government’s opinion, the Court’s jurisprudence in relation to Article 8 of the Convention clearly indicated that only natural persons could be considered to have a “private life” (see Gillan and Quinton v. the United Kingdom, no. 4158/05, § 61, ECHR 2010 (extracts)). The Court had not confirmed that “private life” also pertained to legal persons such as the applicant companies, and there was no need to establish new Convention ground in the present case. 99. In so far as the applicant companies relied on the right to respect for “correspondence” under Article 8, the Government maintained that this was closely linked to the right to respect for private life and thus disputed the applicability of this aspect of the Article to the applicant companies. Whilst any private correspondence on the backup tape of the server pertained to natural persons working for the applicant companies, none of them had presented themselves as applicants before the Court. 100. Moreover, the content of business or professional correspondence of legal persons such as the applicant companies could not reasonably be said to relate only to the interests of individuals that were safeguarded by the right to respect for “private life”, such as a person’s physical and psychological integrity, their innate need for personal development and their interaction with others. Bearing in mind the rationale for Convention protection of “correspondence”, as seen in the Court’s case-law, there was no need to extend the right to such protection to the correspondence of legal persons such as the applicant companies. 101. Furthermore, since the correspondence of legal persons such as the applicant companies could only be of a professional nature, the argument for extending the Article 8 protection to such correspondence found no support in Niemietz (cited above). The present case ought to be distinguished from the latter because it did not touch upon the legal professional privilege of lawyers, where the Court had been concerned that “an encroachment on professional secrecy may have repercussions on the proper administration of justice and hence on the rights guaranteed by Article 6” (ibid., § 37). 102. The Government further disputed that the applicant companies could claim a right to respect for their “home” under Article 8. It followed from Société Colas Est and Others (cited above) that that right applied only to legal persons “in certain circumstances” that did not exist in the instant case. Unlike the former case, the present case did not concern searches or seizures, nor had the measure under scrutiny been carried out in a similar context. It concerned an administrative order to allow the inspection of records as part of a tax audit, not an order that had formed part of an investigation into unlawful practices, as in the French case. Suspicion that a criminal offence had been committed was not a prerequisite for issuing an order pursuant to section 4-10 (1) (b) of the Tax Assessment Act. 103. The fact that the tax authorities had not entered the premises of the applicant companies’ offices without their consent should be of particular consequence for the Court’s assessment of whether any “interference” had occurred. The order to allow the inspection had been issued during a meeting held between the tax authorities and the first applicant, B.L.H. The fact that the latter had consented to a backup copy of the server being taken proved that no “interference” had occurred in this case. (c) The Court’s assessment 104. The Court first reiterates that, as interpreted in its case-law, the word “home”, appearing in the English text of Article 8, – the word “ domicile ” in the French text has a broader connotation – covers residential premises and may extend also to certain professional or business premises (see Niemietz, cited above, § 30). It includes not only the registered office of a company owned and run by a private individual (see Buck, cited above, § 32) but also that of a legal person and its branches and other business premises (see Sallinen and Others v. Finland, no. 50882/99, § 70, 27 September 2005). Such an interpretation would not unduly hamper the Contracting States, for they would retain their entitlement to "interfere" to the extent permitted by paragraph 2 of Article 8; that entitlement might well be more far-reaching where professional or business activities or premises were involved than would otherwise be the case (see Niemietz, cited above, § 31). 105. The Court further reiterates that in certain previous cases concerning complaints under Article 8 related to the search of business premises and the search and seizure of electronic data, the Court found an interference with “the right to respect for home” (ibid., § 71) and “correspondence” (ibid., § 71, and Wieser and Bicos Beteiligungen GmbH, cited above, § 45). On the other hand, it did not find it necessary to examine whether there had also been an interference with the right to respect for “private life” (ibid.). 106. Turning to the particular circumstances of the present case, the Court observes that during a meeting between representatives of the tax authorities and the first applicant company, B.L.H., on its premises on 9 March 2004, the former ordered the latter, pursuant to section 4-10 (1) (b) of the Tax Assessment Act, to provide access to and enable the tax auditors to take a copy of all data on a server used by all three applicant companies. Both B.L.H. and I.O.R., respectively the first and third applicant companies, rented space on the server, which was owned by Kver, the second applicant company. All three companies’ offices were in the same building. Although the disputed measure was not equivalent to a seizure imposed in criminal proceedings or enforceable on pain of criminal sanctions (see paragraph 43 above), the applicant companies were nonetheless under a legal obligation to comply with the order to enable such access. The imposition of that obligation on the applicant companies constituted an interference with their “home” and undoubtedly concerned their “correspondence” and material that could properly be regarded as such for the purposes of Article 8. In the absence of any argument to the contrary, the Court has found no basis for differentiating between the applicant companies in this respect. 107. A further question is whether there was also an interference with the applicant companies’ right to respect for private life. The Court notes that, according to them, the backup copy of the server included copies of personal e-mails and correspondence of employees and other persons working for the companies. However, no such individual had complained of an interference with his or her private life, either before the national courts or before the European Court. In the absence of such a complaint, the Court does not find it necessary to determine whether there has been an interference with “private life” in the instant case. This said, the applicant companies had legitimate interests in ensuring the protection of the privacy of individuals working for them and such interests should be taken into account in the assessment of whether the conditions in Article 8 § 2 were fulfilled in the instant case. 2. Whether the interference was justified (a) In accordance with the law (i) The applicant companies’ arguments 108. The applicant companies maintained that the wording of section 4 ‑ 10 (1) of the Tax Assessment Act indicated that the tax authorities were empowered to demand access to a company’s business premises for tax audit purposes and to review the company’s archives on site. However, their order to hand over a backup tape on which all or most of the companies’ documents were kept had greatly exceeded the wording of that provision, from which no such power could be deduced. Nor could any support to that effect be found in case-law, the preparatory work on the legislation, legal doctrine or the tax authorities’ own guidelines. As had been pointed out by the minority of the Supreme Court, the provision was limited to “review”; to demand copies was far more interfering. When Parliament had authorised search and seizure in 1980, it had done so in order to ensure that important documents would not be hidden or deleted. If the authorities were to be empowered to copy the archive in question, it would mean conferring on them an authority over and above the intentions of Parliament in 1984 (see paragraph 58 above). The majority of the Supreme Court had ignored that fact in supporting the argument that the tax authorities should be permitted to “seize” electronic documents. The majority had interpreted section 4-10 (1) incorrectly. 109. In any event, it had not been foreseeable that section 4-10 (1) (b) would be invoked as a legal ground for “seizure” of the entire backup tape. The present case did not concern any “grey areas at the fringes of the definition” (see Cantoni v. France, 15 November 1996, § 32, Reports of Judgments and Decisions 1996 ‑ V) but a far-reaching interference clearly outside the wording of the law and what could reasonably be deduced from the relevant legal sources. A number of factors indicated that the law was not sufficiently clear and precise. The tax authorities could easily have adhered to existing requirements by conducting the search on-site, limiting it to what was relevant for tax assessment purposes, and requiring the production of any documents necessary for those purposes. The fact that the “seizure” of the backup tape related to large amounts of data, including personal e-mails and lawyer-client correspondence, and affected the important interests of a wide group of persons, suggested a strict requirement of precision. The “seizure” had been planned and executed as a “dawn raid” and had been coercive in nature owing to the pressure that had been brought to bear on the applicant companies to surrender the backup tape. Since the danger of abuse had been as great as in criminal proceedings, the requirement of precision should not have been any less in the present instance. The need to keep pace with general technological and social developments could not of itself provide the requisite legal ground for the interference at issue. 110. The interference was even less foreseeable to Kver and I.O.R., who had merely been co-users of the server and had not been informed that a tax audit would take place. The so-called mixed-archive doctrine had been invoked only later, on 1 June 2004. 111. Also, despite the fact that B.L.H.’s and Kver’s representatives had offered to identify the relevant parts of the server, the authorities had persisted in their demand to copy the whole server. 112. Against that background, the scope of the tax audit, as asserted by the tax authorities and later upheld by the Supreme Court, involving access to the whole backup tape unrestrained by the applicant companies’ instructions, had been incompatible with the requirement of lawfulness in Article 8 of the Convention. (ii) The Government’s arguments 113. By way of general argument, the Government maintained that the domestic authorities’ latitude in assessing compliance with the three sets of requirements in Article 8 § 2 should be wide when the business activities of legal persons were at issue (see Niemietz, cited above, § 31). 114. The interference complained of had a legal basis in Norwegian law. As held by the Supreme Court, the tax authorities’ demand for a backup copy of the entire server for review at the tax office had a sufficient legal basis in section 4-10 (1) (b) of the Tax assessment Act. 115. Also, the quality requirement that the law be accessible had been complied with. This was undisputed by the applicant companies. 116. As to the requirement of foreseeability, while certainty was highly desirable, excessive rigidity should be avoided so that the law can keep pace with changing circumstances (see The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 49, Series A no. 30). 117. In the view of the Government, the requirement for precision ought to be less rigorous in relation to orders to allow the inspection of records as part of a tax audit, than, for instance, in relation to penal provisions or coercive measures associated with criminal procedures (see Sallinen and Others, cited above, § 90). Orders pursuant to section 4-10 (1) of the Tax Assessment Act did not require any suspicion of criminal offences, and the tax authorities were not empowered to enforce an order against the will of the taxpayer. The requirement of precision should be construed less strictly in relation to the procedural aspects of a section 4 ‑ 10 (1) measure than in relation to the conditions for its application. 118. The Government contended that the second and third applicants had been able to foresee – if need be with appropriate advice – that by not keeping their electronic records clearly separated from those of other companies, they had run the risk of having them examined in connection with a tax audit of one of the other companies. The purpose behind the provision in section 4-10 (1) (b) of the Tax Assessment Act, as clearly indicated by the relevant preparatory discussions on the legislation, had been introduced because the tax authorities should not be dependent on indications by the taxpayer for identifying the files relevant to the audit. 119. The Tax Assessment Act had been drafted before the advent of electronic records. At the time, it was natural to assume that an examination of records would be conducted on the taxpayers’ premises, since that was where the records were located. In contrast, the development of technologies for copying servers meant that it would often be more practical for all parties involved to make copies of electronic records for subsequent inspection at the tax office. Owing to the large amounts of data contained on many computer servers, on-site inspection would be very time-consuming. The tax authorities would have difficulty in carrying out effective audits if they were denied the possibility of copying electronic records. 120. The wording of section 4-10 (1) (b) interpreted in the light of the purpose of an effective tax audit and having regard to the changed circumstances as a result of technological innovation, was sufficiently precise to enable the applicant companies to foresee – with appropriate advice – that the tax authorities could demand that a backup copy be taken of the electronic records. 121. As legal persons carrying out a professional activity and used to having to proceed with a high degree of caution (see Cantoni, cited above, § 35), the applicant companies could be expected to have taken special care in assessing the risks that such an activity entailed. At the time, the tax authorities would frequently demand that copies be made of electronic records in connection with tax audits. It must be assumed that tax advisors would have been familiar with that practice. The applicant companies’ contention that the tax authorities had made similar demands to other companies on a number of previous occasions supported the assumption that the applicant companies, at the material time, could have foreseen that an order to allow the inspection of records could have included the taking of a backup copy of any electronic records. 122. In any event, with the benefit of appropriate legal advice, the applicant companies should have appreciated at the material time that there was a risk that an order to allow the inspection of records would include a demand to take a backup copy of their electronic records. (iii) The Court’s assessment 123. The Court reiterates that, according to its well-established case-law, the words “in accordance with the law” require the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct (see, among other authorities, S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 95, ECHR 2008, with further references). In The Sunday Times (cited above, § 49), the Court held – in relation to Article 10 – that a citizen “must be able ... to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.” 124. Moreover, in Gillan and Quinton (cited above), the Court held: “77. For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise (see Rotaru v. Romania [GC], no. 28341/95, § 55, ECHR 2000-V; Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 4, ECHR 2000-XI; Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004 ‑ I; see also, amongst other examples, Silver and Others v. the United Kingdom, 25 March 1983, §§ 88-90, Series A no. 61; Funke v. France, §§ 56-57, judgment of 25 February 1993, Series A no. 256-A; Al-Nashif v. Bulgaria, no. 50963/99, § 119, 20 June 2002; Ramazanova and Others v. Azerbaijan, no. 44363/02, § 62, 1 February 2007; Glas Nadezhda EOOD and Anatoliy Elenkov v. Bulgaria, no. 14134/02, § 46, ECHR 2007 ‑ XI (extracts); Vlasov v. Russia, no. 78146/01, § 125, 12 June 2008; and Meltex Ltd and Movsesyan v. Armenia, no. 32283/04, § 81, 17 June 2008). The level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed (see, for example, Hashman and Harrup v. the United Kingdom [GC], no. 25594/94, § 31, ECHR 1999 ‑ VIII; S. and Marper, cited above, § 96).” 125. Also on the issue of foreseeability, it may be reiterated that in Cantoni (cited above), the Court stated (in examining a matter under Article 7): “35. The Court recalls that the scope of the notion of foreseeability depends to a considerable degree on the content of the text in issue, the field it is designed to cover and the number and status of those to whom it is addressed (see the Groppera Radio AG and Others v. Switzerland judgment of 28 March 1990, Series A no. 173, p. 26, para. 68). A law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, among other authorities, the Tolstoy Miloslavsky v. the United Kingdom judgment of 13 July 1995, Series A no. 316-B, p. 71, para. 37). This is particularly true in relation to persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation. They can on this account be expected to take special care in assessing the risks that such activity entails.” 126. Turning to the present case, the Court will first consider whether the interference had a sufficient legal basis in domestic law. It notes that section 4-10 (1) (a) of the Tax Assessment Act specified the nature of documents which the tax authorities were empowered to order the taxpayer to “present, hand out or dispatch” – namely those “of significance with respect to the tax assessment of the taxpayer and the inspection thereof”. Under sub-paragraph (b), the same authorities could order the taxpayer “[t]o grant access for on-site inspection, survey, or review of the companies’ archives ...”. For the reasons expounded by the Supreme Court in its judgment (see paragraphs 40-42 above), the Court sees no reason to question its interpretation that, having regard to the purpose of those provisions, electronically stored documents were also covered by sub-paragraph (a) (see similarly Wieser and Bicos Beteiligungen GmbH, cited above, §§ 53-54). 127. The Court also notes that access pursuant to sub-paragraph (b) extended to all archives potentially containing information of importance for the tax assessment. Had the archive been organised with clear dividing lines between the different companies, the tax authorities could have identified the areas on the server where relevant information could have been found. To allow the authorities to access the entire server would therefore have been consistent with the above-mentioned purpose (see paragraphs 41-48 above). So would, in the view of the Supreme Court majority, a requirement enabling the authorities to obtain copies of documents where a review of those copies appeared expedient. Nothing in the relevant rules prevented either such copying (see paragraphs 51 above) or the taking of a backup copy of the server to the tax authorities’ premises for review there (see paragraphs 51-55 above). Although the minority in the Supreme Court had considered the latter points differently (see paragraphs 57-60 above), the Court is prepared to accept that the impugned interference had a legal basis in national law. 128. As regards the other requirements derived from the notion “in accordance with the law”, it was undisputed that the law in question was accessible and the Court sees no reason to hold otherwise. On the other hand, the parties disagreed as to whether it had been foreseeable. 129. The main issue in the instant case relates to the fact that by taking a backup copy containing all the existing documents on the server, the tax authorities had obtained the means of accessing great quantities of data which did not contain information of significance for tax assessment purposes and which thus fell outside the remit of section 4-10 (1). That included private documents and correspondence of employees and other persons working for the companies, and confidential commercial information pertaining to the companies themselves and other companies; in other words, documents which affected the rights and interests of individuals and companies that were protected by Article 8 of the Convention. 130. The Court first observes that the purpose of a measure taken under sub-paragraph (b) was, as explained by the Supreme Court, to give the tax authorities a basis for assessing whether the tax subject possessed documents which they could require the latter to furnish pursuant to sub-paragraph (a). It was not limited to accountancy documents but extended to all documents that might be relevant to the tax assessment (see paragraph 41 above). Considerations of efficiency of the tax audit suggested that the tax authorities’ possibilities to act should be relatively wide at the preparatory stage (see paragraph 42 above). The tax authorities could therefore not be bound by the tax subject’s indications as to which documents were relevant, even where the archive in question comprised documents belonging to other tax subjects. However, although the scope of a section 4-10 (1) order was potentially very wide, it did not confer on the tax authorities an unfettered discretion, as the object of such an order was clearly defined in statute. 131. Thus the authorities could not require access to archives belonging entirely to other tax subjects. Where the archive belonged to the tax subject concerned, access could not be demanded to documents belonging to other tax subjects in order to obtain information about them, unless the documents contained information relevant to the tax assessment of the tax subject in question. 132. Furthermore, where several businesses shared archives and their respective parts of the archives were clearly separated, access should be limited to the area of the tax subject concerned. The Court sees no reason for disagreeing with the Supreme Court’s finding that the archives at issue were not clearly separated but were so-called “mixed” archives. It could therefore reasonably have been foreseen that the tax authorities should not have had to rely on the tax subjects’ own indications of where to find relevant material, but should have been able to access all data on the server in order to appraise the matter for themselves. 133. In the light of the above, the Court considers that the national administrative authorities’ and the courts’ interpretation and application of section 4-10 (1) as a provision authorising the taking of a backup copy of the server with a view to inspection at the tax authorities’ premises were reasonably foreseeable by the applicant companies in the circumstances. Any measures taken to that end ought to adhere to the above-mentioned limitations, as they transpired from the Supreme Court’s reasoning. 134. Against that background, the Court is satisfied that the law in question was accessible and also sufficiently precise and foreseeable to meet the quality requirement in accordance with the autonomous notion of “lawfulness” under paragraph 2 of Article 8. (b) Legitimate aim 135. The Government submitted that the measures at issue had been taken in the interest of the economic well-being of the country and thus pursued a legitimate aim for the purposes of Article 8 § 2 of the Convention. Their submission was not disputed by the applicant companies. 136. The Court sees no reason for arriving at a different conclusion in this regard. (c) Necessary in a democratic society (i) The applicant companies’ arguments 137. In the applicant companies’ submission, the reasons relied on by the Supreme Court were only partly relevant and certainly not sufficient to convincingly establish that the “seizure” of the backup tape in their case was necessary in a democratic society. 138. The Supreme Court’s majority had failed to sufficiently emphasise the broadness of the measure as described above, and the fact that a significant part of the information had been irrelevant for tax audit purposes. The minority had rightly pointed to considerations pertaining to “sensitive personal information” and to the fact that the “seizure” (in the applicants’ submission) of a backup tape, as opposed to paper archives, entailed a risk of abuse through the use of advanced search tools and rapid copying and spreading of sensitive information. In so far as Kver and B.L.H. had been forced by the tax authority to “consent” to handing over the backup tape, the measure could even be regarded as an affront to the privilege against self ‑ incrimination. 139. The Supreme Court’s majority had also wrongfully distinguished between the administrative investigations at issue in the present case and criminal investigations. The applicant companies would in fact have enjoyed far more extensive procedural guaranties had the “seizure” in their case been carried out pursuant to the Code of Criminal Procedure, including a hearing before an impartial tribunal considering the proportionality of the measure in concreto. 140. Whilst the Supreme Court had emphasised that the tax authorities’ decision to “seize” the backup tape could not be enforced, it had disregarded the coercive nature of a section 4-10 (1) (b) order and the Government’s shifting position on the matter during the domestic proceedings. Indeed, until the proceedings before the Supreme Court, the Government’s position had been that such an order was enforceable. 141. Sections 3-5 and 3-6 (4) of the Tax Assessment Act did not provide effective safeguards against abuse. The affected companies had had no means of controlling the access and review of the backup tape in general. A minimum requirement should therefore be that the backup tape, when not subject to review, should be deposited with an independent third party. 142. The alleged safeguards provided to B.L.H., and particularly to the other two applicant companies, had been full of loopholes and had fallen foul of the requirements in Article 8. 143. The Supreme Court had not been in a position to properly assess the alleged difficulties with respect to on-site reviews and the purported need to obtain a backup copy of the server. It had had no sources of information other than the assertions made by the tax authorities themselves. Whilst in most cases it would probably be more convenient for the tax authorities to carry out a review on their own premises, their affirmation that an on-site review had been difficult was open to question. Since the introduction of computers and electronic archives, the use of search software must surely have facilitated the task of the tax authorities compared with the review of traditional paper archives. It should also be noted that pursuant to section 4-10 (3) of the Tax Assessment Act, the taxpayer was obliged to assist the tax authorities in their review. 144. It was unclear to the applicant companies whether it was through necessity or convenience that less than ten percent of on-site tax audits and archival reviews resulted in “seizures” of electronic documents, and that in the remaining ninety percent of cases, the tax authorities found it sufficient to review the archives on-site. The risk of abuse and arbitrariness appeared obvious. 145. The Supreme Court’s ruling had meant that a section 4-10 (1) (b) order was acceptable also where the affected company (namely the company whose archive was “seized”) was not the subject of a tax audit or similar inspection. By invoking the mixed-archive doctrine, that is, the argument that the different archives were not distinguishable, the tax authorities in effect had the discretion to demand a copy of an entire server containing several different archives. 146. The Supreme Court’s ruling had also left room for considerable legal uncertainty with respect to the scope of the powers conferred on the tax authorities. As illustrated by the tax authorities’ demand that Kver provide copies of “all electronically stored information” (see paragraph 13 above), considerations of efficiency and control would have to be strongly invoked in order to justify a very wide interpretation of the concept of “company archive” in section 4-10 (1) (b). 147. Despite the fact that the imposition of a section 4-10 (1) (b) order was not subject to any conditions or qualifications – not even the existence of suspicion that an offence or wrongdoing had been committed – the tax authorities were empowered to demand the “seizure” of an entire server backup tape. This state of affairs of itself rendered the measure disproportionate and incompatible with Article 8 of the Convention. 148. Moreover, unlike decisions by public authorities generally (see section 25 of the Public Administration Act – “ forvaltningsloven ”), the tax authorities were under no obligation to give reasons for their decision to impose a section 4-10 (1) (b) order (section 1-2 of the Tax Assessment Act). 149. A prior judicial authorisation was not a prerequisite for issuing a section 4-10 (1) (b) order and had not been issued in the applicant companies’ case. Nor had they been afforded an effective complaints procedure or legal remedies, the procedure under section 3-6 of the Tax Assessment Act being illusory. The Supreme Court’s judgment of 20 November 2007 had left very little room for complaints. In essence, it had implied that there had been no need for the tax authorities to give any particular reason as to why the “seizure” was taking place. In cases where several companies shared the same server, the tax authorities could invoke the "mixed-archive doctrine" at their own discretion. The judgment apparently left no scope for effective judicial review of the proportionality and necessity of a “seizure” in a specific case. (ii) The Government’s arguments 150. In the Government’s opinion, the reasons adduced to justify the measure in the present case were relevant and sufficient. Orders pursuant to section 4-10 (1) (b) of the Tax Assessment Act were issued in order to ensure an effective tax audit. 151. Furthermore, sections 3-5 and 3-6 of the Tax Assessment Act afforded adequate and effective safeguards against abuse in relation to section 4-10 orders. According to section 3-5 (1), the taxpayer was to be given reasonable notice and have the right to be present and express his or her views at an inspection of the records. Section 3-5 (2) required a written report to be drawn up describing the factual information that had been collected. If the person concerned by the order believed that he or she was not required or legally permitted to comply with the order, a complaint could be lodged against the order (section 3-6 (1)). In the event of a complaint, section 3-6 (4) provided that an extension would be granted if the documents were sealed and deposited. Lastly, the lawfulness of the order could be challenged before the national courts. 152. Contrary to the assertions of the applicant companies, the fact that an order to allow the inspection of records could be issued without prior judicial authorisation did not mean that the above-mentioned safeguards were ineffective. Since a section 4-10 (1) (b) order could not be legally enforced, a requirement of prior judicial authorisation would be unreasonable. Bearing in mind that the tax authorities were not empowered to carry out an inspection if the taxpayer refused to cooperate with the order, there could be no need for prior judicial authorisation, which moreover was not an absolute requirement according to the Court’s case-law (see Smirnov v. Russia, no. 71362/01, § 45, 7 June 2007, and Mastepan v. Russia, no. 3708/03, § 43, 14 January 2010). 153. The Government disputed that a taxpayer might be liable to punishment if he or she refused to cooperate with a section 4-10 (1) (b) order; such a possibility was only theoretical. There were no examples to the contrary nor had such measures been contemplated here. 154. They also disagreed that the risk of misuse of sensitive personal data would increase if backup copies were taken to the tax office rather than inspected on the taxpayer’s premises. Again, they emphasised that no individuals working for the applicant companies had presented themselves as applicants before the Court; thus, any matters pertaining to their interests fell outside the scope of the case. 155. The measure in question was also strictly proportionate to the aim pursued. In no way could the tax authorities’ decision to issue the section 4 ‑ 10 (1) (b) order be viewed as arbitrary. BLH had been selected for tax audit because the tax authorities had had reason to believe that there had been a commonality of interest between B.L.H. and I.O.R. On several occasions they had asked B.L.H. to provide information concerning the transactions and the relationship between the two companies, but B.L.H. and I.O.R. had both failed to provide such information. The order to allow the inspection of records had been issued more than a year after the tax audit had been started and after the tax payer had repeatedly been asked to produce the documentation necessary to verify the information provided in the tax return. In those circumstances, it had been apparent that an on-site inspection would have been far less effective than a subsequent inspection at the tax office. 156. In the instant case, sections 3-5 and 3-6 of the Tax Assessment Act, together with the right to judicial review, had provided the applicant companies with adequate and effective safeguards. Indeed, after they had complained about the section 4-10 (1) (b) order, the backup copy of the server had been sealed and the applicant companies had been granted an extension pursuant to section 3-6 (4) of the Tax Assessment Act. They had been granted a further extension pending a final and enforceable judgment and, subsequent to the Supreme Court judgment, yet a further extension in connection with legal proceedings on interim relief. Thus, whilst in most cases a backup tape would within a short time be reviewed in accordance with the section 4-10 (1) (b) order, in the present case the tax authorities had been in the possession of the backup tape for almost six years and had repeatedly agreed to defer their review of the tape. 157. In sum, the impugned measure had been “necessary in a democratic society”. (iii) The Court’s assessment 158. In determining whether the impugned measure was "necessary in a democratic society", the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify it were relevant and sufficient, and whether it was proportionate to the legitimate aim pursued. In so doing, the Court will take into account that the national authorities are accorded a certain margin of appreciation, the scope of which will depend on such factors as the nature and seriousness of the interests at stake and the gravity of the interference (see, for instance, Z v. Finland, 25 February 1997, §§ 94 and 99, Reports of Judgments and Decisions 1997 ‑ I, and Leander v. Sweden, 26 March 1987, § 58, Series A no. 116). 159. One factor that militates in favour of strict scrutiny in the present case is that the backup copy comprised all existing documents on the server, regardless of their relevance for tax assessment purposes (see Miailhe v. France (no. 1), 25 February 1993, § 39, Series A no. 256 ‑ C, and Niemietz, cited above, § 32). On the other hand, the fact that the measure was aimed at legal persons meant that a wider margin of appreciation could be applied than would have been the case had it concerned an individual (see, mutatis mutandis, Niemietz, cited above, § 31). 160. The Court notes that a tax audit pursuant to section 4-10 (1) of the Tax Assessment Act complemented the duty of the tax subject to provide accurate information to the tax authorities to enable them to make a correct tax assessment (see paragraph 67 above). 161. The purpose of measures taken under sub-paragraph (b) of section 4-10 (1) was to enable the tax authorities to assess whether the tax subject possessed documents the production of which could be imposed under sub ‑ paragraph (a). There is no reason to call into doubt the view held by the Norwegian Parliament when adopting those provisions that the review of archives was a necessary means of ensuring efficiency in the checking of information which tax subjects submitted to the tax authorities, as well as greater accuracy in the information so provided and in the latter’s tax assessment (see paragraphs 41 and 42 above). Nor is there any reason to assume that the impugned application of section 4-10 (1) was based on any other considerations in the instant case. On the contrary, the tax authorities’ justification for obtaining access to the server and a backup copy with a view to carrying out a review of its contents on their premises was supported by reasons that were both relevant and sufficient for the purposes of the necessity test under Article 8 § 2. 162. It remains to consider whether the interference complained of was proportionate to the legitimate aim pursued. 163. As stated above (see paragraph 159), the interference was particularly far-reaching in that the backup tape contained copies of all existing documents on the server, including, as was undisputed, large quantities of material that was not relevant for tax assessment purposes, inter alia, private correspondence and other documents belonging to employees and persons working for the companies (see paragraphs 10, 14, 19-20, 54 and 59 above). An important consideration in the present case, therefore, is whether the procedure relating to the authorities’ obtaining access to a backup copy of the server with a view to inspecting it in the tax office was accompanied by effective safeguards against abuse. 164. The Court recalls the various limitations highlighted in paragraphs 122 to 129 above to the effect that that section 4-10 (1) did not confer on the tax authorities an unfettered discretion, notably with regard to such matters as the nature of the documents that they were entitled to inspect, the object of requiring access to archives and of authorising the taking of a backup tape. Furthermore, it is to be noted that B.H.L. had been notified of the tax authorities’ intention to carry out a tax audit a year in advance, and both its representatives and those of Kver were present and able to express their views when the tax authorities made their on-site visit on 9 March 2004 (section 3-5 (1) of the Tax Assessment Act). 165. In particular, the Court observes that, not only was a right to complain available under section 3-6 (1), as soon as the first and second applicants complained about the section 4-10 (1) measure in their case – which they apparently did immediately – the backup copy was placed in a sealed envelope that was deposited at the tax office pending a decision on the complaint (section 3-6 (4) of the Act and Article 4 of the 1983 Regulations on Accountancy Audits; see paragraphs 71 and 73 above). 166. The Court has further taken account of the other safeguards set out in the above-mentioned regulation, notably the right of the tax subject to be present when the seal is broken, except where that would cause considerable delay (Article 4); the duty of those responsible for the audit to draw up a report (section 3-5 (2) of the Act, Article 5 of the Regulation); the right of the tax subject to receive a copy of the report (Article 6); and the duty of the authorities to return irrelevant documents as soon as possible (Article 7) (see paragraphs 71 to 75 above). 167. The applicant companies apparently did not complain that the tax authorities had reviewed the backup copy during the period between January and March 2006 in order to assist the police in the investigation of the criminal case involving Mr X (see paragraph 65 above). After completion of the review, all electronically stored documents were deleted and all paper documents were shredded with immediate effect. The Court sees no need for it to pronounce any view on the matter. 168. On the other hand, the applicant companies were concerned that the authorities had copied the contents of the backup tape to hard disk. The Court observes that from the material submitted, it transpires that this was done after 5 June 2007, the applicant companies were informed thereof on 19 June 2007 and it had been necessary in order to make it possible to open and read the files (see paragraph 63 above). Material so copied would be secured pending the further proceedings, by which time the tax authorities at two levels and both the City Court and the High Court had upheld the impugned measures as being lawful. 169. It was only later, after the delivery of a final judgment by the Supreme Court, that the tax authorities decided to review the material in question and thus, on 28 January 2008, notified the applicant companies of their intention to open the sealed envelope containing the tape with a view to ordering the production of documents. They informed them of the dates, time and place of the review, its object, certain preparatory processing not involving searching or opening of documents, and the identity of the companies concerned. The tax authorities also invited them to appoint a common representative to attend the preparations and the opening and review of the tape. 170. The Court has taken note of certain criticism expressed by the applicant companies regarding the practical measures envisaged for the viewing of the files in their representative’s presence, notably their inability to watch the computer screen. However, it does not find that this gives rise to any serious cause for concern. As can be seen from the Tax Administration’s letter to the applicant companies of 30 April 2008, the constraints in this respect essentially stemmed from the mixed character of the archives and were designed to accommodate the applicant companies’ own wishes to respect confidentiality. Any documents selected would be listed, printed out and sorted according to company and be made accessible to the company in question for comment (see paragraph 65 above). 171. Furthermore, as observed by the Supreme Court, after the review had been completed, the copy would either be deleted or destroyed and all traces of the contents would be deleted from the tax authorities’ computers and storage devices. The authorities would not be authorised to withhold documents from the material that had been taken away unless the tax subject accepted the measure. There is no reason to doubt that the tax authorities would follow that procedure in the applicant companies’ case (see paragraph 64 above). 172. In the light of the above, while it is true that no requirement of prior judicial authorisation applied in the instant case (compare Funke v. France, 25 February 1993, § 57, Series A no. 256 ‑ A; Crémieux v. France, 25 February 1993, § 40, Series A no. 256 ‑ B; and Miailhe, cited above, § 38), the Court is satisfied that the interference with the applicant companies’ rights to respect for correspondence and home which the contested section 4-10 (1) order entailed was subject to important limitations and was accompanied by effective and adequate safeguards against abuse (see, mutatis mutandis, Klass and Others v. Germany, 6 September 1978, § 50, Series A no. 28; Leander, cited above, § 60; and Z, cited above, § 103). 173. It should also be observed that the nature of the interference complained of was not of the same seriousness and degree as is ordinarily the case of search and seizure carried out under criminal law, the type of measures considered by the Court in a number of previous cases (see, for instance, the following cases cited above: Funke; Crémieux; Miailhe; Niemietz; Société Colas Est and Others; Buck; Sallinen and Others; Wieser and Bicos Beteiligungen GmbH; and also Robathin v. Austria, no. 30457/06, 3 July 2012). As pointed out by the Supreme Court, the consequences of a tax subject’s refusal to cooperate were exclusively administrative (see in particular paragraph 43 and also paragraphs 106 and 153 above). Moreover, the disputed measure had in part been made necessary by the applicant companies’ own choice to opt for “mixed archives” on a shared server, making the task of separation of user areas and identification of documents more difficult for the tax authorities (see paragraphs 46-47 above). 174. Having regard to the circumstances of the case as a whole, the Court finds that the impugned section 4-10 (1) measure in the instant case was supported by relevant and sufficient reasons. It also sees no reason to doubt that the tax authorities of the respondent State, acting within their margin of appreciation, struck a fair balance between the applicant companies’ right to respect for “home” and “correspondence” and their interest in protecting the privacy of persons working for them, on the one hand, and the public interest in ensuring efficiency in the inspection of information provided by the applicant companies for tax assessment purposes, on the other hand. 175. Accordingly, there has been no violation of Article 8 of the Convention in the present case. | The Court held that there had been no violation of Article 8 (right to respect for home and correspondence) of the Convention, finding that, despite the lack of a requirement for prior judicial authorisation, effective and adequate safeguards against abuse had been in place and a fair balance had been struck between the applicant companies’ right to respect for home and correspondence and their interest in protecting the privacy of persons working for them on the one hand, and the public interest in ensuring efficient inspection for tax assessment purposes on the other. In the present case, the Court agreed with the Norwegian courts’ argument that, for efficiency reasons, tax authorities’ possibilities to act should not be limited by the fact that a tax payer was using a “mixed archive”, even if that archive contained data belonging to other tax payers. |
76 | Parental authority, child custody and access rights | II. RELEVANT DOMESTIC AND COMPARATIVE LAW 1. Domestic law and practice a. Provisions of the Basic Law 24. Article 6 of the Basic Law, in so far as relevant, provides: (1) Marriage and the family shall enjoy the special protection of the state. (2) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The state shall watch over them in the performance of this duty. b. Provisions of the Civil Code (i) Provisions on access to a child 25. Parental custody includes the right to determine access to the child (Article 1632 § 2 of the Civil Code). 26. According to Article 1684 § 1 of the Civil Code, a child has a right of access to each parent, and each parent in turn has the right and the duty to have contact with the child. The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise, also with regard to third parties (Article 1684 § 3). They may restrict or suspend that right if such a measure is necessary for the child ’ s welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if the child ’ s well-being would otherwise be endangered. The family courts may order that the right of access be exercised in the presence of a third party, such as a Youth Office or an association ( Article 1684 § 4). 27. Article 1685 § 2 of the Civil Code, in its version applicable at the relevant time, provides for persons with whom the child has close ties ( enge Bezugspersonen ) to have a right of access to the child if this serves the child ’ s best interest and if they are bearing actual responsibility for the child or have done so in the past ( social and family relationship). It is to be assumed, as a rule, that a person who lived with the child in domestic community for a lengthy period of time has borne such actual responsibility. Article 1684 §§ 3 and 4 apply mutatis mutandis. (ii) Provisions on paternity 28. According to Article 1592 of the Civil Code, a child ’ s father is either the man who at the date of the child ’ s birth was married to the child ’ s mother (no. 1), or the man who acknowledged paternity (no. 2) or whose paternity is judicially established under Article 1600d of the Civil Code (no. 3). 29. An acknowledgement of paternity is not valid as long as the paternity of another man exists (Article 1594 § 2 of the Civil Code). 30. Paternity may be challenged. Under Article 1600 § 1 of the Civil Code, entitlement to challenge paternity lies with the man whose paternity exists under Article 1592 nos. 1 and 2, with the mother and with the child, and also with the man who makes a statutory declaration that he had sexual intercourse with the child ’ s mother during the period of conception. However, pursuant to § 2 of Article 1600, this last man has a right to challenge the paternity of the man who is the child ’ s legal father under Article 1592 nos. 1 or 2 only if he is the child ’ s biological father and if there is no social and family relationship between the legal father and the child. 31. If there is no paternity under Article 1592 nos. 1 or 2 of the Civil Code, it is to be established by the family court (Article 1600d § 1 of the Civil Code). 2. Comparative law 32. Research undertaken by the Court in relation to 23 Council of Europe Member States shows that there is no uniform approach in the Member States of the Council of Europe to the question whether, and if so, under what circumstances, a biological father (who is not only a sperm donor) has a right to contact with his child where a different father exists in law. 33. In a considerable number of States (comprising, in particular, Bosnia and Herzegovina, Estonia, France, Ireland, Portugal, Russia, Slovenia, Spain, the United Kingdom and Ukraine), where a child is born to a woman who is living with her husband, a biological father can ensure his contact rights by challenging, first, the paternity presumption in place, partly within a fixed time-limit. In these States, as indeed in all of the countries surveyed, a presumption exists in law to the effect that a child born of a married woman during the subsistence of the marriage is presumed also to be the child of her husband. Having been recognised as the (legal) father of the child concerned, the biological father then has a right to contact with his child like any other non-custodial parent, subject to the child ’ s best interests. 34. According to an expert report drawn up in March 2010 by the German Institute for Youth Human Services and Family Law ( Deutsches Institut für Jugendhilfe und Familienrecht e.V., a registered association and non-governmental organisation ), which has been submitted by the Government, the same applies in Greece. That report, however, interprets differently the provisions applicable in France and Spain. Research undertaken by the applicant confirms the Court ’ s research notably in respect of the legal situation in France and Spain. The applicant submits that a biological father may also challenge the legal father ’ s paternity in circumstances similar to those in the present application in several further countries, inter alia, in Norway. 35. In a considerable number of Council of Europe Member States, according to the Court ’ s research, the biological father of a child would, on the contrary, not be able to challenge the said paternity presumption in circumstances similar to those in the present application (see, in particular, Azerbaijan, Belgium, Croatia, Finland, Hungary, Italy, Latvia, Luxembourg, Monaco, the Netherlands, Poland, Slovakia and Switzerland). Biological fathers in those countries lack standing to bring an action to challenge that presumption either in all circumstances or at least in cases in which the mother is still living with her husband (see in this latter respect the law in force in Belgium and Luxembourg ). 36. According to the expert report drawn up by the German Institute for Youth Human Services and Family Law submitted by the Government, the same applies in Austria, the Czech Republic, Denmark, Liechtenstein, Sweden and Turkey. The applicant interprets differently the provisions applicable in Italy and Switzerland; the report submitted by the Government, however, confirms the Court ’ s findings in respect of the legal situation in these countries. 37. In those latter Member States, it is thus only open to the biological father to apply for contact as a third party, not as a parent. However, in some of these States (Azerbaijan, Croatia, Finland, Hungary, Italy, Luxembourg and Poland ) the biological father does not have standing to apply for contact as a third party either as the law provides a right of contact only to legal parents and (partly) to other relatives. 38. According to the expert report of the German Institute for Youth Human Services and Family Law submitted by the Government, the biological father would also not have standing to apply for contact in Liechtenstein and in the Czech Republic. 39. In the remaining Member States surveyed by the Court in which the paternity presumption may not be challenged by a biological father ( Belgium, Latvia, Monaco, the Netherlands, Slovakia and Switzerland ), different pre-conditions apply for that father to be granted contact if such contact is in the child ’ s best interests. According to Article 375 bis of the Belgian Civil Code, there has to be “proof of a tie of special affection with the child”; according to Article 181 § 3 of the Latvian Civil Code, the father must have lived together with the child for a long time in the same household. In Monaco a third person can be granted contact by a judge where that would be in the best interests of the child, without additional pre-conditions having to be met (compare Article 300 of the Monegasque Civil Code). In the Netherlands, third persons (including mere sperm donors) may be granted contact under Articles 1:377f and 1:377a § 3 of the Civil Code of the Netherlands if they have a close personal relationship with the child unless contacts run counter to the child ’ s best interests. According to Section 25 § 5 of the Slovakian Family Act, the biological father may be granted access if he is to be regarded as a “close person” to the child (according to the expert report submitted by the Government, a similar provision applies in Sweden ) and according to Article 274a of the Swiss Civil Code, he has a right to contact in exceptional circumstances (according to the expert report submitted by the Government, the same precondition applies in Turkey). 40. According to the report submitted by the Government, Section 20 of the Danish Act on Parental Responsibility provides that access may only be granted to close relatives having close personal ties with the child concerned if the parents have no or hardly any contact with the child. That report further states that under Article 148 § 3 of the Austrian Civil Code, a biological father may be granted access to his child if the child ’ s welfare is endangered otherwise. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 41. The applicant complained that the refusal to grant him access to his children violated his right to respect for his family life under Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 42. The Government contested that argument. A. The parties ’ submissions 1. The applicant 43. The applicant argued that there was “family life” between him and the twins within the meaning of Article 8 § 1. It was decisive that he was interested in the children and ready to take responsibility for them. He underlined that it was only natural for him as the biological father to wish to participate in their upbringing and to take responsibility for them. He had had a serious relationship with Mrs B., who had planned to divorce her husband, for more than two years. He had intended to live with Mrs B. and the children and they had already looked for a flat and had gone to the ultrasound examination together before Mrs B. left him. Since the children ’ s birth, he had attempted to have access to them and had initiated access proceedings in court. He had not been in a position to establish contact with his children and to bear actual responsibility for them as Mr and Mrs B. had refused him access. By doing so, Mr and Mrs B. also wanted to prevent him from residing in Germany. He rejected allegations that he only wanted to profit from the children ’ s existence in order to obtain a residence permit and underlined that these allegations had already been examined and rejected by the Baden-Baden District Court and by the psychological expert consulted by that court which alone, as has been stressed in the Court ’ s case-law many times, has – and had here – the benefit of contact with all the persons concerned. Moreover, being an asylum seeker, he had not been in a position to bear financial responsibility for the children. He was now living in Spain and had no reason to seek to obtain a residence permit in Germany if not for being able to see his children. 44. In the applicant ’ s submission, the interference with his family life by the decisions of the domestic courts had not been justified under Article 8 § 2. German legislation, which allowed contact of biological parents with their children only if there was already a social and family relationship between them and refused access if contact was aimed at establishing such a relationship, failed to comply with Article 8 as it did not balance the interests involved in a fair manner and had thus led to a disproportionate interference with his family life in his case. As was illustrated by the present case, it depended on the legal parents ’ free will whether or not the biological father could build up a social and family relationship with his children. If the legal parents arbitrarily prevented him from doing so, the biological father could not be granted access under Article 1685 § 2 of the Civil Code even if an independent expert confirmed that this would be in the children ’ s best interest. The question of access therefore had to be determined in each individual case in accordance with the best interest of the child concerned – which alone was decisive under Article 8 for the question whether a biological father should be granted access – and could not be predetermined by a legal presumption of when contacts would under no circumstances be in a child ’ s best interest. As the Court of Appeal had expressly stated that it had been irrelevant whether contacts between him and his children would be in the children ’ s best interest, it had therefore failed to give relevant and sufficient reasons to justify the interference with Article 8. 45. The applicant objected to the findings in a general psychological expert report commissioned by the Government for the present proceedings on the question whether the provisions of the German Civil Code on contacts between biological fathers and their children were compatible with children ’ s welfare (see paragraph 51 below ) and to the Government ’ s interpretation of those findings. In particular, it had not been proven by psychological research that contacts of biological fathers with their children against the legal parents ’ will would endanger the children ’ s welfare in all circumstances. He stressed that the Federal Constitutional Court itself had considered that it was of utmost importance for a child to get to know both parents in order to develop his or her personality. He further underlined that it was nothing unusual for families today to deal with two fathers as many children, following separation of their parents, lived together with their mother and stepfather while having contacts with their father. 46. The applicant also contested that the provisions on contacts between biological fathers and children were as restrictive as in Germany in most other European States. He argued that there was nothing to indicate that the access rights of biological fathers in only 17 of the 47 Council of Europe Member States surveyed in the report the Government had obtained from the German Institute for Youth Human Services and Family Law (see paragraph 52 below) were representative for the legal situation in all of the Council ’ s Member States. 47. The applicant further emphasised that contact between the children and him, their biological father, was in the children ’ s best interest in the circumstances of the case. The independent expert consulted in the proceedings before the District Court had confirmed this and found that contact with him was important for the children to develop their own identity, in particular because it was visible that Mr B. was not the twins ’ biological father. Being African-German, they needed their father in order to understand why they were different. The applicant underlined that Mr and Mrs B. had not challenged the expert for bias in the proceedings before the domestic courts and that the family courts had not considered the expert biased. The denial of access to his children would result in his expulsion from Germany, which in turn would render impossible any future contact between him and the children. 2. The Government 48. The Government argued that there had been no interference with the applicant ’ s rights under Article 8 § 1 as there had not been any “family life” between the applicant and the twins. It was not sufficient that the applicant was the natural father of the children. There were no close bonds between him and the twins. The relationship between the applicant and Mrs B. had ended four months before the twins were born and the applicant had neither been present at their birth nor had any contact with them. At no point in time had he lived with Mrs B. and he had not borne any financial responsibility for the children. On the contrary, the children had been living in a different family unit since their birth. The mere wish of the applicant, who had moved to Spain in the meantime, to establish a relationship with the twins did not fall within the ambit of “ family life” under Article 8 § 1. The Government further submitted that it appeared that the applicant was interested in Mrs B. and the twins only in order to obtain a residence permit in Germany and that it was questionable whether the real motive for the applicant ’ s attempts to be granted access to the twins was his desire to built up a relationship with his children. 49. The Government submitted that, should the Court find that there had been an interference with the applicant ’ s family life, that interference was justified under Article 8 § 2. The interference had been in accordance with Articles 1592 no. 1, 1684 and 1685 of the Civil Code and Article 6 of the Basic Law (see paragraphs 24 and 26-28 above). 50. The interference had been necessary for the protection of the rights and freedoms of others, in particular for the protection of the legal/social family and the best interest of the children. There had been a fair balancing of the interests involved, that is, those of the biological father, the legal parents and the children. 51. The Government took the view that, in the first place, the German legislator, in Articles 1592, 1594, 1684 and 1685 of the Civil Code, had balanced the competing interests involved in a manner which complied with the requirements of Article 8. It was of utmost importance for the welfare of children not only to know their origins, but in particular to understand to which family they belonged and who bore responsibility for them as a mother or father. The Government referred to the findings of a general psychological expert report they had commissioned for the present proceedings on the question whether the provisions of the German Civil Code on contacts between biological fathers and their children were compatible with children ’ s welfare. They submitted that, according to that report, as a rule, contacts of children with the parent they were not living with became a burden for them and were thus not in their best interests if the parents involved – as was the case here – were unable to limit their conflicts after separation. Moreover, according to the expert ’ s findings, the total absence of contact with a natural father did not, as a rule, affect a child ’ s social and emotional development. 52. The Government further considered that a comparative law analysis confirmed that the provisions of Article 1684 and Article 1685 of the Civil Code, compared to the applicable law in other European countries, duly protected the right of biological fathers to contact with their children and that the children ’ s best interests did not warrant a different solution. They referred to the findings in a report drawn up in March 2010 on their request by the German Institute for Youth Human Services and Family Law ( Deutsches Institut für Jugendhilfe und Familienrecht e.V. ), a registered association and non-governmental organisation, in which the access rights of biological fathers in 17 other Council of Europe Member States had been analysed (see also paragraphs 34-40 above). They argued that German law, which did not exclude biological fathers in all circumstances from contacts with their children, but allowed contacts only if a social and family relationship existed between biological father and child and if contacts were in the child ’ s best interests, was in line with the general European standards on that subject-matter. 53. The Government submitted that the provisions of German law on contacts between biological father and child had also led to a fair outcome in the best interest of the children concerned in the instant case. Even though a biological parent could have an interest in getting to know his children and in building up a relationship with them, the children in the present case were living in a functioning legal and social family whereas the applicant had never lived with them. As the twins had fair skin and fair hair, they would not be able to understand what connected them with the applicant. The legal parents knew best when to inform the twins of their origins. Therefore, it was in the children ’ s best interest and in that of the legal/social family to be protected from outside interference. As regards the findings of the psychological expert in the proceedings before the District Court, they submitted that Mr and Mrs B. considered that the expert had been biased. 3. The third- party interveners 54. The third- party interveners took the view that in the circumstances of the present case, in which the children were living in their legal family and had never had any contacts with their biological father, it should be for them as the children ’ s legal parents to decide if and when there should be contacts between their children and the biological father. They feared that the children ’ s welfare and that of their whole family would be endangered if they were forced to allow contacts between the twins and the applicant. They underlined that it had been very difficult to keep their big family together. They took the view that the expert report obtained by the District Court could not be taken into consideration in the proceedings before the Court because the Court of Appeal, which had considered the report as irrelevant for determining the case, had not examined their objections to it. They further considered that the applicant had abused Mrs. B. ’ s trust in him and now wanted to use the children exclusively in order to obtain a residence permit in Germany. B. The Court ’ s assessment 1. Whether there was an interference 55. The Court reiterates that the notion of “family life” under Article 8 of the Convention is not confined to marriage-based relationships and may encompass other de facto “family” ties where the parties are living together out of wedlock. A child born out of such a relationship is ipso jure part of that “family” unit from the moment, and by the very fact, of the birth (see Keegan v. Ireland, 26 May 1994, § 44, Series A no. 290; L. v. the Netherlands, no. 45582/99, § 35, ECHR 2004 ‑ IV; and Znamenskaya v. Russia, no. 77785/01, § 26, 2 June 2005 ). 56. However, a biological kinship between a natural parent and a child alone, without any further legal or factual elements indicating the existence of a close personal relationship, is insufficient to attract the protection of Article 8 (compare L. , cited above, § 37). As a rule, cohabitation is a requirement for a relationship amounting to family life. Exceptionally, other factors may also serve to demonstrate that a relationship has sufficient constancy to create de facto “family ties” (see Kroon and Others v. the Netherlands, 27 October 1994, § 30, Series A no. 297 ‑ C; and L., cited above, § 36). 57. Moreover, the Court has considered that intended family life may, exceptionally, fall within the ambit of Article 8, notably in cases in which the fact that family life has not yet fully been established was not attributable to the applicant (compare Pini and Others v. Romania, nos. 78028/01 and 78030/01, §§ 143 and 146, ECHR 2004-V). In particular, where the circumstances warrant it, “family life” must extend to the potential relationship which may develop between a child born out of wedlock and the natural father. Relevant factors which may determine the real existence in practice of close personal ties in these cases include the nature of the relationship between the natural parents and a demonstrable interest in and commitment by the father to the child both before and after the birth (see Nylund v. Finland (dec.), no. 27110/95, ECHR 1999-VI; Nekvedavicius v. Germany (dec.), no. 46165/99, 19 June 2003; L., cited above, § 36; and Hülsmann v. Germany (dec.), no. 33375/03, 18 March 2008; compare also Różański v. Poland, no. 55339/00, § 64, 18 May 2006 ). 58. The Court further reiterates that Article 8 protects not only “family” but also “private” life. It has been the Convention organs ’ traditional approach to accept that close relationships short of “family life” would generally fall within the scope of “private life” ( see Znamenskaya, cited above, § 27 with further references ). The Court thus found in the context of proceedings concerning the establishment or contestation of paternity that the determination of a man ’ s legal relations with his legal or putative child might concern his “family” life but that the question could be left open because the matter undoubtedly concerned that man ’ s private life under Article 8, which encompasses important aspects of one ’ s personal identity (see Rasmussen v. Denmark, 28 November 1984, § 33, Series A no. 87; Nylund, cited above; Yildirim v. Austria (dec.), no. 34308/96, 19 October 1999, and Backlund v. Finland, no. 36498/05, § 37, 6 July 2010 ). 59. In the present case, the Court must determine in the first place whether the decision of the Court of Appeal, upheld by the Federal Constitutional Court, to refuse the applicant access to the twins disregarded the applicant ’ s existing “family life ” with his children within the meaning of Article 8. It notes at the outset that ( as, for instance, in the cases of Yousef v. the Netherlands, no. 33711/96, § 51, ECHR 2002 ‑ VIII, and L., cited above, §§ 12, 37, but other than, for instance, in the cases of Nylund, cited above, and Hülsmann, cited above ) it is uncontested that the applicant is the biological father of the twins. In examining whether there is, in addition, a close personal relationship between him and the children which must be regarded as an established “family life” for the purposes of Article 8, the Court observes that the applicant has never cohabited with the twins or with their mother and has to date never met the children. In these circumstances, their relationship does not have sufficient constancy to be qualified as existing “family life”. 60. However, the Court has found that intended family life may, exceptionally, fall within the ambit of Article 8 in cases in which the fact that family life has not been established is not attributable to the applicant (see paragraph 57 above). This applies, in particular, to the relationship between a child born out of wedlock and the child ’ s biological father, who are inalterably linked by a natural bond while their actual relationship may be determined, for practical and legal reasons, by the child ’ s mother and, if married, by her husband. In the present case, the applicant did not yet have any contact with his biological children because their mother and their legal father, who were entitled to decide on the twins ’ contacts with other persons ( Article 1632 § 2 of the Civil Code, see paragraph 2 5 above), refused his requests to allow contact with them. Moreover, under the provisions of German law (Article 1594 § 2 and Article 1600 § 2 of the Civil Code, see paragraphs 16, 29 and 30 above), the applicant could neither acknowledge paternity nor contest Mr B. ’ s paternity so as to become the twins ’ legal father. Therefore, the fact that there was not yet any established family relationship between him and his children cannot be held against him. 61. In determining whether, in addition, there were close personal ties in practice between the applicant and his children for their relationship to attract the protection of Article 8 (see paragraph 57 above), the Court must have regard, in the first place, to the interest in and commitment by the father to the children concerned. It notes that the applicant expressed his wish to have contacts with his children even before their birth and repeatedly asked Mr and Mrs B. to be allowed access afterwards. He further pursued his attempt to have contacts with the twins by bringing access proceedings in the domestic courts speedily after their birth. In the circumstances of the case, in which the applicant was prevented from taking any further steps to assume responsibility for the twins, the Court considers that this conduct was sufficient to demonstrate the applicant ’ s interest in his children. As a result, the Court, in particular, does not consider it established that the applicant lacked genuine interest in his offspring and wanted to have contact with the twins exclusively in order to obtain a residence permit. Furthermore, as to the nature of the relationship between the twins ’ natural parents, the Court notes that, even though the applicant and Mrs B. never cohabited, the children emanated from a relationship which lasted some two years and was, therefore, not merely haphazard. 62. Having regard to the foregoing, the Court does not exclude that the applicant ’ s intended relationship with his biological children attracts the protection of “family life” under Article 8. In any event, the determination of the legal relations between the applicant and his biological children here at issue – namely the question whether the applicant had a right of access to his children – even if they fell short of family life, concerned an important part of the applicant ’ s identity and thus his “private life” within the meaning of Article 8 § 1. The domestic courts ’ decision to refuse him contact with his children thus interfered with his right to respect, at least, for his private life. 2. Whether the interference was justified 63. Any such interference with the right to respect for one ’ s private life will constitute a violation of Article 8 unless it is “in accordance with the law”, pursued an aim or aims that are legitimate under paragraph 2 of this provision and can be regarded as “necessary in a democratic society”. 64. The decision on access taken by the Court of Appeal, as upheld by the Federal Constitutional Court, was based on Articles 1684 and 1685, read in conjunction with Article 1592 no. 1 of the Civil Code (see paragraphs 2 6-28 above). It was aimed at pursuing the best interest of a married couple, Mr and Mrs B., and of the children who were born during their marriage, who were living with them and whom they cared for, and was therefore taken for the protection of their rights and freedoms. 65. In determining whether the interference was “necessary in a democratic society”, the Court refers to the principles established in its case-law. It has to consider whether, in the light of the case as a whole, the reasons adduced to justify that interference were relevant and sufficient for the purposes of paragraph 2 of Article 8 (see, inter alia, T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 70, ECHR 2001 ‑ V (extracts), and Sommerfeld v. Germany [GC], no. 31871/96, § 62, ECHR 2003 ‑ VIII (extracts) ). It cannot satisfactorily assess whether these reasons were “sufficient” without at the same time determining whether the decision-making process, seen as a whole, was fair and provided the applicant with the requisite protection of his interests safeguarded by Article 8 (see, inter alia, T.P. and K.M. v. the United Kingdom, cited above, § 72, and Sommerfeld, cited above, § 66 ). Consideration of what lies in the best interest of the child concerned is of paramount importance in every case of this kind (see, inter alia, Yousef v. the Netherlands, no. 33711/96, § 73 ); depending on their nature and seriousness, the child ’ s best interests may override those of the parents (see Sommerfeld, cited above, § 66; and Görgülü v. Germany, no. 74969/01, § 43, 26 February 2004 ). 66. According to the Court ’ s well-established case-law, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the Court ’ s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see, inter alia, Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299 ‑ A; Görgülü, cited above, § 41; and Sommerfeld, cited above, § 62). However, restrictions placed by the domestic authorities on parental rights of access call for a strict scrutiny as they entail the danger that the family relations between a young child and a parent would be effectively curtailed ( see, inter alia, Elsholz v. Germany [GC], no. 25735/94, § § 48-49, ECHR 2000 ‑ VIII; Sommerfeld, cited above, § § 62- 63; and Görgülü, cited above, § § 41-42 ). The above-mentioned principles must apply also in a case like the present one, in which the refusal of contact between a biological father and his children is classified as an interference, at least, with “private life”. 67. In the present case, the Court of Appeal refused the applicant, the natural father, access to his two children without examining the question whether contact between them would be in the twins ’ best interest. Applying the relevant provisions of the Civil Code (Articles 1684 and 1685), that court argued that the applicant did not fall within the group of persons entitled to claim access as he was not the children ’ s legal father and had not borne any responsibility for them (see paragraphs 1 7 -1 8 above). German law, as interpreted by the Court of Appeal, therefore did not provide for a judicial examination of the question whether contacts between a biological father and his children would be in the children ’ s best interest if another man was the children ’ s legal father and if the biological father had not yet borne any responsibility for the children (“social and family relationship”). Such a “social and family relationship” will notably be assumed if that father lived with the children in domestic community for a lengthy period of time (see, mutatis mutandis, for a further case in which parental rights of a father were, without a further examination on the merits, prima facie not considered to be in the child ’ s best interest, Zaunegger v. Germany, no. 22028/04, § § 44 and 46, 3 December 2009, concerning the general exclusion of judicial review of the attribution of sole custody to the mother of a child born out of wedlock ). The reasons why the biological father had not previously established a “social and family relationship” with his children were irrelevant ( compare paragraph 1 9 above); the provisions thus also covered cases in which the fact that such a relationship has not yet been established was not attributable to the biological father. 68. The Court would also note in that connection that a comparative law analysis revealed that there is no uniform approach in the Member States of the Council of Europe to the question whether, and if so, under what circumstances, a biological father has a right to contact with his child where a different father exists in law. However, in a considerable number of European States the domestic courts would be in a position to examine on the merits whether contact of a biological father in the applicant ’ s situation with his child would be in the latter ’ s interest and could grant that father access if that was the case (see paragraphs 32-40 above). 69. The Court reiterates that in cases arising from individual applications it is not its task to examine the domestic legislation in the abstract, but it must examine the manner in which that legislation was applied to the applicant in the particular circumstances ( see, for instance, Sommerfeld, cited above, § 86, and Zaunegger, cited above, § 45 ). It notes that the approach taken by the Court of Appeal and its interpretation of the domestic legislation led to the applicant being denied any contact with his children, irrespective of the question whether such contact was beneficial for the children ’ s well-being. In taking that approach the Court of Appeal did not give weight to the fact that the applicant, for legal and practical reasons, was not himself in a position to alter the relationship with his children. Under the applicable provisions of the Civil Code (Articles 1592 no. 1, 1594 § 2 and 1600 § 2), he could not become the legal father of the twins. Likewise, he could not obtain a right of access for having borne responsibility for the children because the legal parents, Mr and Mrs B., had the right to decide what contact the twins should have with third persons (Article 1632 § 2 of the Civil Code, see paragraph 2 5 above ) and were therefore in a position to prevent the applicant from assuming any responsibility for them. The legal parents ’ motives for refusing contact did not necessarily have to be based on considerations relating to the children ’ s best interest. 70. The Court is aware of the fact that the decision of the Court of Appeal was aimed at complying with the legislator ’ s will to give an existing family relationship between a legal father and a child, who are actually living together with their wife and mother respectively, precedence over the relationship between a biological father and a child (see paragraph 20 above). It further notes that the twins in the present case were living with their legal father and their mother and accepts that the existing family ties between the spouses and the children they actually cared for equally warranted protection. In fact, the case before it differs from many previous applications before the Court concerning questions of access to children in that a fair balance has to be struck by the domestic authorities between the competing rights under Article 8 not only of two parents and a child, but of several individuals concerned – the mother, the legal father, the biological father, the married couples ’ biological children and the children which emanated from the relationship of the mother and the biological father. 71. Nevertheless, the Court is not satisfied that, in according protection to the existing family ties between Mr and Mrs B. and the children, the domestic court fairly balanced the competing interests involved in a decision-making process which provided the applicant with the requisite protection of his interests safeguarded by Article 8 and gave sufficient reasons to justify their interference for the purposes of paragraph 2 of Article 8. It would reiterate in that connection that it is for the domestic courts, who have the benefit of direct contact with all the persons concerned, to exercise their power of appreciation in determining whether or not contacts between a biological father and his children are in the latter ’ s best interest. In the present case, however, the Court of Appeal failed to give any consideration to the question whether, in the particular circumstances of the case, contact between the twins and the applicant would be in the children ’ s best interest. 72. Having regard to the foregoing, the Court concludes that the reasons given by the domestic courts for refusing the applicant contact with his children were not “sufficient” for the purposes of paragraph 2 of Article 8. The interference with his right to respect for his private life was therefore not “necessary in a democratic society”. 73. There has accordingly been a violation of Article 8 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 74. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 75. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage. He submitted that he had suffered considerable distress by the refusal to allow him to care for his children. 76. The Government did not comment on the applicant ’ s claim. 77. The Court considers that the Court of Appeal ’ s denial of any contact between the applicant and his children without examining the question whether such contact would be in the children ’ s best interest must have caused the applicant some distress which is not adequately compensated by the finding of a violation alone. Making an assessment on an equitable basis, it therefore awards the applicant EUR 5,000, plus any tax that may be chargeable, under this head. B. Costs and expenses 78. The applicant also claimed EUR 1,685.27 for the costs and expenses of the proceedings before the administrative courts which he had initiated in order to obtain a residence permit in Germany and thus to be able to see his children. He further claimed EUR 2,262.39 for the costs and expenses of the proceedings before the civil courts. These costs were currently covered by legal aid which he had been granted, but the applicant claimed that he might have to reimburse them. Moreover, he requested reimbursement of EUR 2,015.38 for costs and expenses incurred in the proceedings before the Federal Constitutional Court and another EUR 2,015.38 for those incurred in the proceedings before the Court. All amounts claimed include VAT. 79. The Government did not comment on this issue. 80. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings in so far as they concern the proceedings in the civil and the administrative courts as the applicant, who had been granted legal aid, failed to demonstrate that he had actually incurred those costs. On the other hand, the costs and expenses for the proceedings before the Federal Constitutional Court, which were aimed at redressing the breach of the applicant ’ s right under Article 8, and for the proceedings before this Court were actually and necessarily incurred and were reasonable as to quantum. It therefore awards the sum of EUR 4,030.76 (including VAT) for costs and expenses incurred both in the domestic proceedings and in the proceedings before the Court, plus any tax that may be chargeable to the applicant. C. Default interest 81. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It found in particular that the authorities had not examined the question whether a relationship between the twins and the applicant would have been in the children’s interest. |
627 | Authors and publishers of books | II. RELEVANT DOMESTIC LAW AND PRACTICE 28. The relevant parts of the Freedom of the Press Act of 29 July 1881 provide as follows: Section 29 “ It shall be defamatory to make any statement or allegation of a fact that impugns the honour or reputation of the person or body of whom the fact is alleged. The direct publication or reproduction of such a statement or allegation shall be an offence, even if expressed in tentative terms or if made about a person or body not expressly named but identifiable by the terms of the disputed speeches, shouts, threats, written or printed matter, placards or posters. It shall be an insult to use any abusive or contemptuous language or invective not containing an allegation of fact. ” Section 32(1) “ Anyone who by any of the means set out in section 23 [including ‘ written ’ and ‘ printed ’ matter and ‘ any other written medium ’ ‘ sold or distributed, or offered for sale ’ ] makes a statement that is defamatory of private individuals shall be liable on conviction to six months ’ imprisonment and a fine of 12,000 euros, or to one only of those sentences ”. Section 42 “ The following persons shall be liable, as principals, in the following order, to penalties for offences committed via the press: 1. Publication directors or publishers, irrespective of their occupation or title ... ” 29. An individual may be defamed through the portrayal of characters in a novel or play, without it being necessary for the name of the imaginary person to correspond to that of the individual who claims to have been defamed, provided he or she is referred to in a clear manner such that the public cannot be mistaken (Paris Court of Appeal, 8 March 1897). On the other hand, the fact that the name of the imaginary person corresponds to that of a living person is not sufficient for the latter to allege defamation, even if there are certainly similarities of character and diffusion (Algiers Court of Appeal, 20 February 1897). Such situations mostly give rise to proceedings for civil liability and damages are awarded whenever there has been prejudice, that is to say when the public has unavoidably been led to associate the living person with the imaginary person and where an error of judgment can be attributed to the author (Paris Court of Appeal, 24 April 1936, and Paris Court of Appeal, 8 November 1950). ( Source: Juris -Classeur de droit pénal, 1996, Presse -Diffamation, fascicule 90, “ 86 ‑ personnages littéraires ” ( literary characters ) ). THE LAW I. JOINDER OF THE APPLICATIONS 30. In view of the connection between the applications as regards the facts and the substantive questions that they both raise, the Court considers it appropriate to join them in accordance with Rule 42 § 1 of the Rules of Court. II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 31. The applicants complained that there had been a violation of their right to freedom of expression on account of their conviction for defamation or complicity in defamation. They relied on Article 10 of the Convention, which reads as follows: “ 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. ” A. The parties ’ submissions 1. The applicants 32. The first two applicants complained that their conviction for defamation and complicity in defamation on account of the publication of Le Procès de Jean-Marie Le Pen ( “ Jean-Marie Le Pen on Trial ” ) had constituted a “ penalty ” that was not “ prescribed by law ” within the meaning attributed to that notion by the Court ’ s case-law. In their submission, notwithstanding the apparent precision of section 29(1) of the Act of 29 July 1881 upon which it had been based and the extensive case-law concerning defamation, their conviction had not been “ foreseeable ”. Their main criticism of the Paris Court of Appeal was that it had sought to ascertain the author ’ s thoughts from the words of fictional characters. This had, moreover, depended on whether or not a particular character was presented “ positively ”. In examining the offending passages of the novel in such a way the court had used a process of deduction, which, they claimed, was a subjective and random approach that did not allow writers to predetermine the limits to authorised speech with which they were supposed to comply. As a result, and since that approach had not been applied with the same stringency to all the impugned passages, the judgment and reasoning of the Court of Appeal had in a number of respects been inconsistent and incoherent. Secondly, the applicants considered that such a “ penalty ” had not been “ necessary in a democratic society ”. They pointed out in particular that their conviction as author and publisher of a text which was purely fictional, and which was presented to readers as such, had not been justified by any “ pressing social need ”. They laid emphasis on the novelist ’ s freedom of expression and, referring in particular to Lingens ( cited above ), on the fact that the book in question concerned a politician. They added that the domestic courts had distorted the remarks in question and that the “ penalty ” inflicted, being criminal in nature, had been disproportionate. 33. The third applicant further complained that his conviction for defamation on account of the publication in the newspaper Libération of a petition signed by ninety-seven writers, accompanied by certain passages from the novel “ Jean-Marie Le Pen on Trial” that had been found to be defamatory by the Paris Criminal Court, had not been “ necessary ” within the meaning of Article 10 of the Convention. Referring in particular to the importance of the freedom of the press in a democratic society, and stressing that the impugned article had been published in the context of a political debate on a matter of general concern, he submitted that his conviction had been all the more disproportionate to the aim pursued, namely the protection of Mr Le Pen ’ s reputation, as Mr Le Pen himself was inclined to be provocative and to use offensive language when expressing himself through the media. 2. The Government 34. The Government did not dispute the fact that the applicants ’ conviction constituted interference with the exercise of their right to freedom of expression but contended that it was “ prescribed by law ”, pursued a “ legitimate aim ” and, having regard to the margin of appreciation afforded to States parties in such matters, was “ necessary in a democratic society ” to achieve that aim, in accordance with the second paragraph of Article 10. 35. On the first point, the Government pointed out that the applicants ’ conviction had been based on sections 29(1) and 32(1) of the Freedom of the Press Act of 29 July 1881. The Government dismissed the argument of the first two applicants that the application of those provisions to their case had not been foreseeable, indicating in particular that there had been previous examples of proceedings for defamation committed through a literary work (they cited a judgment of the Paris Court of Appeal from 8 March 1897). Moreover, in the Government ’ s submission, the second applicant had admitted during the appeal proceedings that he had been aware of the risk that, on publishing the book in question, Mr Le Pen might bring proceedings against him. As to the allegedly inconsistent criteria on which the domestic courts had based their decisions, that question did not relate to the foreseeability of the law but to whether the interference had been necessary. 36. As to the second point, the Government argued that the interference had sought to ensure the “ protection of the reputation or rights of others ” – those of Mr Le Pen and the Front National – this being one of the legitimate aims enumerated in the second paragraph of Article 10. 37. As to the necessity and proportionality of the interference in the case of the first two applicants, the Government considered that the tribunals of fact had coherently analysed the defamatory nature of the relevant passages from the book and had based their decisions on “ relevant ” and “ sufficient ” reasons. They further emphasised that the courts had not convicted the first two applicants on account of the aversion expressed in the impugned work towards the ideas defended by the Front National and its Chairman, but only after weighing up the various interests at stake. Whilst the Government were aware that the limits of acceptable criticism were broader where politicians were concerned, the offending comments had clearly damaged the reputation of the civil parties. Moreover, in so far as they were not value judgments but allegations of fact susceptible of proof, the conviction of the applicants on the grounds, that they had not carried out a “ basic verification ” of the reality of the allegations before publishing them – when they had been able to do so – was compatible with Article 10 of the Convention. The Government added that the applicants had been given the opportunity to prove their good faith, that the penalties imposed on them and the amount of damages awarded against them were not disproportionate, and that the courts had ordered neither the seizure nor the destruction of the book. The Government arrived at the same conclusion in the case of the third applicant. In their submission, the domestic courts had struck a fair balance between the various interests at stake ( respect for free discussion of political ideas by the press, protection of the reputation of others), having regard to the fact that the reputation-damaging remarks were serious and had been published in a national newspaper with a large circulation. They added that the publication of the impugned petition had gone beyond the level of participation in a political controversy surrounding the far right and in fact consisted in the attribution to Mr Le Pen and his party of unproven offences. In actual fact, by publishing the extracts from the book for which the first two applicants had been convicted, the third applicant had sought to contest the defamatory nature of the impugned allegations and therefore to give credence to the offending remarks. In doing so he had failed to fulfil the obligation of care and moderation inherent in the “ duties and responsibilities ” of journalists. The Government added that the domestic courts had not punished the third applicant for criticising the conviction of the first two applicants, or for informing the public that the signatories of the impugned petition supported them, but for doing so in a way that constituted a reiteration of the offence. 38. The Government concluded that the applicants ’ complaints that there had been a violation of Article 10 of the Convention were manifestly ill-founded and therefore inadmissible. B. The Court ’ s assessment 1. Admissibility 39. The Court observes that this aspect of the applications is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It moreover considers that no other ground for declaring it inadmissible has been established and therefore declares it admissible. 2. Merits 40. It is not in dispute between the parties that the applicants ’ conviction constituted “ interference by public authority ” with their right to freedom of expression. Such interference will breach the Convention if it fails to satisfy the criteria set out in the second paragraph of Article 10. The Court must therefore determine whether it was “ prescribed by law ”, whether it pursued one or more of the legitimate aims listed in that paragraph and whether it was “ necessary in a democratic society ” in order to achieve that aim or aims. (a) “ Prescribed by law ” 41. The Court reiterates that a norm cannot be regarded as a “ law ” within the meaning of Article 10 § 2 unless it is formulated with sufficient precision to enable the citizen to regulate his conduct; he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty. Whilst certainty is desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice. The Court further reiterates that the scope of the notion of foreseeability depends to a considerable degree on the content of the text in issue, the field it is designed to cover and the number and status of those to whom it is addressed. A law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. This is particularly true in relation to persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation. They can on this account be expected to take special care in assessing the risks that such activity entails (see, for example, Cantoni v. France, 15 November 1996, § 35, Reports of Judgments and Decisions 1996 ‑ V, and Chauvy and Others v. France, no. 64915/01, §§ 43-45, ECHR 2004 ‑ VI ). 42. In the present case, the legal basis for the applicants ’ conviction can be found in accessible and clear provisions, namely sections 29 and 32 of the Act of 29 July 1881. The first of these provisions states in particular that it is “ defamatory to make any statement or allegation of a fact that impugns the honour or reputation of the person or body of whom the fact is alleged ” and according to case-law this can be done through a work of fiction when the individual who claims to have been defamed is referred to in a clear manner ( see paragraphs 28-29 above). Whilst the case-law on this specific point appears dated and rather scant – the Government confined themselves to citing a judgment of the Paris Court of Appeal from 8 March 1897 – the Court must take account of the fact that the first and second applicants are respectively an author and the chairman of the board of directors of a publishing company. Being professionals in the field of publishing it was incumbent on them to apprise themselves of the relevant legal provisions and case-law in such matters, even if it meant taking specialised legal advice. Accordingly, since the novel in issue specifically named Mr Le Pen and the Front National, they could not have been unaware that if they published it there was a risk that defamation proceedings might be brought against them by Mr Le Pen and his party on the above-mentioned legal basis. As to the criteria applied by the Paris Court of Appeal in assessing whether or not the impugned passages of the novel were defamatory, this question in reality relates to the relevance and sufficiency of the grounds given by the domestic courts to justify the impugned interference with the right of the first two applicants to freedom of expression. The Court will therefore examine this question when it comes to assess whether the interference was “ necessary ”. 43. In conclusion, the Court considers that the contention of the first two applicants that they were unable to foresee “ to a reasonable degree ” the consequences that the publication of the book was liable to have for them in the courts is untenable. It therefore finds that the interference in issue was “ prescribed by law ” within the meaning of the second paragraph of Article 10 of the Convention. (b) Legitimate aim 44. The Court finds that the interference unquestionably pursued one of the legitimate aims set out in paragraph 2 of Article 10: the protection of “ the reputation or rights of others ”, namely of Jean -Marie Le Pen and the Front National; moreover, this is not a matter of dispute between the parties. (c) Necessary in a democratic society (i) General principles 45. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “ information ” or “ ideas ” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “ democratic society ”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly. The adjective “ necessary ”, within the meaning of Article 10 § 2, implies the existence of a “ pressing social need ”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “ restriction ” is reconcilable with freedom of expression as protected by Article 10. The Court ’ s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are “ relevant and sufficient ” and whether it was “proportionate to the legitimate aim pursued”. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts (see, among many other authorities, Hertel v. Switzerland, 25 August 1998, § 46, Reports 1998 ‑ VI; Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, §§ 68-71, ECHR 2004 ‑ XI; Steel and Morris v. the United Kingdom, no. 68416/01, § 87, ECHR 2005 ‑ II; and Mamère v. France, no. 12697/03, § 19, ECHR 2006 ‑ XIII ). 46. There is little scope under Article 10 § 2 of the Convention for restrictions on freedom of expression in the area of political speech or debate – where freedom of expression is of the utmost importance (see Brasilier v. France, no. 71343/01, § 41, 11 April 2006 ) – or in matters of public interest (see, among other authorities, Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999 ‑ IV, and Brasilier, cited above). Furthermore, the limits of acceptable criticism are wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance (see, for example, Lingens, cited above, § 42; Vides Aizsardzības Klubs v. Latvia, no. 57829/00, § 40, 27 May 2004; and Brasilier, cited above). (ii) Application of the above principles ( α ) The first two applicants 47. As observed by the Paris Court of Appeal in its judgment of 13 September 2000, the book whose publication resulted in the applicants ’ conviction for defamation and complicity in defamation is a “ novel ”, a “ creation of the imagination ” (see paragraph 17 above). A novel is a form of artistic expression, which falls within the scope of Article 10 in that it affords the opportunity to take part in the public exchange of cultural, political and social information and ideas of all kinds. Those who create or distribute a work, for example of a literary nature, contribute to the exchange of ideas and opinions which is essential for a democratic society. Hence the obligation on the State not to encroach unduly on their freedom of expression (see, among other authorities, Karataş v. Turkey [GC], no. 23168/94, § 49, ECHR 1999 ‑ IV, and Alınak v. Turkey, no. 40287/98, §§ 41-43, 29 March 2005). Furthermore, in assessing whether the interference was “ necessary ” it should be borne in mind that a novel is a form of artistic expression that, although potentially maintaining its readership for a longer period, appeals generally to a relatively narrow public compared with the print media ( in this respect see Alınak, cited above, § 41). Consequently, the number of persons who became aware of the remarks in issue in the present case and, accordingly, the extent of the potential damage to the rights and reputation of Mr Le Pen and his party, were likely to have been limited. 48. The impugned novel, which was inspired by real events but adds fictional elements, recounts the trial of a Front National militant, who, while putting up posters for his party with other militants, commits the cold-blooded murder of a young man of North African descent and admits that it was a racist crime. Published under the title Le Procès de Jean-Marie Le Pen (“Jean-Marie Le Pen on Trial”), it openly raises questions about the responsibility of the Front National and its Chairman in the growth of racism in France and about the difficulty of combating this scourge ( see paragraphs 11-12 above). The work therefore unquestionably relates to a debate on a matter of general concern and constitutes political and militant expression, hence this is a case where a high level of protection of the right to freedom of expression is required under Article 10. The margin of appreciation enjoyed by the authorities in assessing the “ necessity ” of the penalty imposed on the applicants was thus particularly limited ( see paragraph 46 above; see also Steel and Morris, §§ 88-89, cited above, and Mamère, cited above, § 20). 49. The Court notes at the outset that the examination of the applicants ’ case by the Paris Court of Appeal was duly carried out in this kind of perspective. In its judgment of 13 September 2000, the Court of Appeal found that to ask the question “ How can Jean-Marie Le Pen be fought effectively? ” was, “ even in a novel, ... not per se defamatory against him ” and that “ the legitimacy of the aim pursued by the defendants through the novel, namely ‘ to fight against Jean-Marie Le Pen effectively ’, in other words to engage in a political combat, [could not ] be challenged in a democratic society ”. The court admittedly noted that “ [w] ith its claim to be a ‘ combative ’ work, the novel in question, and in particular the passages found to be defamatory, attest [ed] to patent animosity towards the civil parties ”. It nevertheless found that this animosity, being “ explicitly related to the aversion felt by the defendants in reaction to the ideas and values presented for public debate by the civil party as chairman of the Front National ”, was “ not directed against the civil party in person ” and “[ could not ] be regarded as reprehensible per se ” ( see paragraphs 17-19 above). 50. It thus appears that the penalty imposed on the applicants by the domestic court was not directed against the arguments expounded in the impugned novel but only against the content of certain passages that were found to be damaging to “ the honour or reputation ” of the Front National and its Chairman within the meaning of section 29 of the Act of 29 July 1881. Moreover, whilst the initial proceedings against the applicants in the criminal court concerned six passages from the novel ( see paragraph 13 above), they were ultimately convicted on account of the following three passages alone: [ page 10: a view attributed by the author to anti-racist demonstrators who have gathered outside the law courts] “ ... an effective way to fight Le Pen is to call for him to be put in the dock and show that he isn ’ t the leader of a political party but the chief of a gang of killers – after all, people would have voted for Al Capone too. ” [ pages 105- 06: here the lawyer is addressing the court] “ Read the papers, listen to the radio and television, every statement by Jean-Marie Le Pen is bedecked – or rather bespotted and bespattered – with racist overtones that are barely concealed at best. Each of his words is a veil for others and from behind each of his assertions looms the spectre of the worst abominations of the history of mankind. Everyone knows it, everyone says it. What Ronald Blistier did was precisely what Jean-Marie Le Pen advocates. Perhaps not explicitly – he tries to abide by the law, even though he does not always manage to do so. But when you consider the situations in which he speaks, the innuendos he makes and the figures he supports, there can be no doubt. ” [ page 136: a statement by the defendant ’ s lawyer on television after his client ’ s suicide in prison ] “ How can Jean-Marie Le Pen be allowed to play the victim after Ronald Blistier ’ s suicide? Isn ’ t the Front National Chairman a vampire who thrives on the bitterness of his electorate, but sometimes also on their blood, like the blood of his enemies? Why does Le Pen accuse democrats of the alleged murder of Ronald Blistier? Because he isn ’ t afraid of lies – because engaging in defamation against his opponents always appears useful for him, of course, but it is also quite simply a means to deflect suspicion; he ’ s the one who shouts the loudest in the hope that his ranting will drown out the accusations against himself. ” 51. However, the applicants criticised the Court of Appeal for having, for the purposes of its examination of their case, sought to ascertain the author ’ s thoughts from the remarks of fictional characters in a fictional situation and for reaching its conclusions as to the defamatory nature of the passages in issue on the basis of whether the author had distanced himself from those remarks or not. In the applicants ’ submission, such an approach led to the imprisonment of literature in a set of rigid rules at odds with the freedom of artistic creation and expression. The Court does not share that view. It considers, on the contrary, that the criteria applied by the Paris Court of Appeal in assessing whether or not the passages in issue were defamatory complied with Article 10 of the Convention. In this connection the Court observes that, in its judgment of 13 September 2000, the Court of Appeal pointed out first of all that all writings, even novelistic, were capable of “ impugn[ing] the honour or reputation of [a] person ” within the meaning of section 29 of the Freedom of the Press Act of 29 July 1881 and therefore of resulting in a conviction for defamation. That approach is consistent with Article 10 of the Convention. Admittedly, as noted above ( see paragraph 47), anyone who, for example, creates or distributes a literary work contributes to an exchange of ideas and opinions which is essential for a democratic society, hence the obligation on the State not to encroach unduly on their freedom of expression. This is especially the case where, like the novel in issue in the present case, the work constitutes political or militant expression ( see paragraph 48 above). Nonetheless, novelists – like other creators – and those who promote their work are certainly not immune from the possibility of limitations as provided for in paragraph 2 of Article 10. Whoever exercises his freedom of expression undertakes, in accordance with the express terms of that paragraph, “ duties and responsibilities ”. 52. The Court further observes that, in assessing whether or not the passages from the novel it was called upon to examine were defamatory, the Court of Appeal sought to determine whether they effectively “ impugned the honour and reputation ” of Mr Le Pen and the Front National. Inasmuch as the Court is entitled to judge (see, for example, Mamère, cited above, § 22), the domestic court ’ s findings on this point cannot be criticised in view of the virulent content of the impugned passages and the fact that they specifically named the party and its chairman. Lastly, it is apparent from the judgment of 13 September 2000 that, in reality, it was for the author ’ s benefit that the Court of Appeal sought additionally to determine his thoughts. It considered that, where remarks “ impugn[ing] the honour and reputation of [a] person ” were made by a narrator or by characters in a “ work of fiction ”, only those that reflected the thoughts of the author were punishable under the Act of 29 July 1881, and not those remarks from which the author really distanced himself in his work. As a result, the application of this criterion led the court to find that one of the four passages referred to it was not defamatory. 53. The Court of Appeal further verified whether the applicants were entitled to rely on good faith as a defence, which would be the case, under domestic law, if the allegations considered defamatory corresponded to the pursuit of a legitimate aim, if they did not reflect any personal animosity, if they followed a serious investigation, and if they were made using dispassionate language ( see paragraph 19 above). However, the court was unable to accept that defence as it found that, unlike the first two of these conditions, the last two were not satisfied. 54. As to the seriousness of the investigation preceding the publication of the novel, the Court of Appeal stated that “ [s]ince this [was] a work of fiction, [that] question [could] not be assessed as if it were a text intended to inform the reader of real facts or comment on such facts ”. The court nevertheless considered this criterion relevant in the present case, since the novel juxtaposed reality and fiction – observing in this connection that, even though the plot was an imaginary one, the Chairman of the Front National, a real figure, represented the “ focus ” around which the imaginary characters revolved and in relation to which they took shape – and since the ideas, rhetoric, acts and gestures of Mr Le Pen had been very accurately described in the novel. Applying this test, the Court of Appeal found that “ whilst the rhetoric and ideas attributed to [Mr Le Pen and his party], together with the ensuing debates, [were] unquestionably consonant with the actual representation of the ideas of the Front National in reports on French political life today, the defendants [had] failed to adduce any specific evidence to show that the use of the wording found to be defamatory had been preceded by basic verification as to the reality supposed to be evoked by such wording ”. 55. The Court considers that this reasoning is consistent with its own case-law. It reiterates in this connection that in order to assess the justification of an impugned statement, a distinction needs to be made between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10. The classification of a statement as a fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the national authorities, in particular the domestic courts. However, even where a statement amounts to a value judgment, there must exist a sufficient factual basis to support it, failing which it will be excessive (see, for example, Pedersen and Baadsgaard, cited above, § 76). Generally speaking there is no need to make this distinction when dealing with extracts from a novel. It nevertheless becomes fully pertinent when, as in the present case, the impugned work is not one of pure fiction but introduces real characters or facts. In the present case, firstly, it was all the more acceptable to require the applicants to show that the allegations contained in the passages from the novel that were found to be defamatory had a “ sufficient factual basis ” as they were not merely value judgments but also allegations of fact, as the Court of Appeal indicated. Secondly, the Court of Appeal adopted a measured approach, criticising the applicants not for failing to prove the reality of the allegations in question but for failing to make a “ basic verification ” in that connection. 56. Having regard to the content of the offending passages, the Court also considers that the Court of Appeal ’ s finding that they were not sufficiently “ dispassionate ” is compatible with its case-law. It is true that, whilst an individual taking part in a public debate on a matter of general concern – like the applicants in the present case – is required not to overstep certain limits as regards – in particular – respect for the reputation and rights of others, he or she is allowed to have recourse to a degree of exaggeration or even provocation, or in other words to make somewhat immoderate statements (see Mamère, cited above, § 25). It is also true that the limits of acceptable criticism are wider as regards a politician – or a political party – such as Mr Le Pen and the Front National – as such, than as regards a private individual ( see paragraph 4 6 above). This is particularly true in the present case as Mr Le Pen, a leading politician, is known for the virulence of his speech and his extremist views, on account of which he has been convicted a number of times on charges of incitement to racial hatred, trivialising crimes against humanity, making allowances for atrocities, apologia for war crimes, proffering insults against public figures and making offensive remarks. As a result, he has exposed himself to harsh criticism and must therefore display a particularly high degree of tolerance in this context (see, mutatis mutandis, Oberschlick v. Austria (no. 2), 1 July 1997, §§ 31-33, Reports 1997 ‑ IV; Lopes Gomes da Silva v. Portugal, no. 37698/97, § 35, ECHR 2000 ‑ X; and Wirtschafts-Trend Zeitschriften-Verlags GmbH v. Austria, no. 58547/00, § 37, 27 October 2005). 57. The Court nevertheless considers that in the present case the Court of Appeal made a reasonable assessment of the facts in finding that to liken an individual, though he be a politician, to the “ chief of a gang of killers ”, to assert that a murder, even one committed by a fictional character, was “ advocated ” by him, and to describe him as a “ vampire who thrives on the bitterness of his electorate, but sometimes also on their blood ”, “ oversteps the permissible limits in such matters ”. The Court moreover considers that, regardless of the forcefulness of political struggles, it is legitimate to try to ensure that they abide by a minimum degree of moderation and propriety, especially as the reputation of a politician, even a controversial one, must benefit from the protection afforded by the Convention. The Court will further have regard to the nature of the remarks made, in particular to the underlying intention to stigmatise the other side, and to the fact that their content is such as to stir up violence and hatred, thus going beyond what is tolerable in political debate, even in respect of a figure who occupies an extremist position in the political spectrum (see, mutatis mutandis, Sürek (no. 1), cited above, §§ 62 - 63). 58. The Court accordingly arrives at the conclusion that the “ penalty ” imposed on the applicants was based on “ relevant and sufficient ” reasons. 59. As regards the “ proportionality ” of the penalty, the Court notes that the applicants were found guilty of an offence and ordered to pay a fine, so in that respect alone the measures imposed on them were already very serious. However, firstly, in view of the margin of appreciation left to Contracting States by Article 10 of the Convention, a criminal measure as a response to defamation cannot, as such, be considered disproportionate to the aim pursued (see Radio France and Others v. France, no. 53984/00, § 40, ECHR 2004 ‑ II). Secondly, the amount of the fine imposed on the applicants was moderate: EUR 2,286.74 (each); the same finding has to be made as regards the damages they were ordered jointly and severally to pay to each of the civil parties: EUR 3,811.23. The nature and severity of the penalty imposed are factors to be taken into account when assessing the proportionality of the interference (see Sürek (no. 1), cited above, § 64). In these circumstances, and having regard to the content of the impugned remarks, the Court finds that the measures taken against the applicants were not disproportionate to the legitimate aim pursued. 60. In conclusion, the domestic court could reasonably find that the interference with the exercise by the applicants of their right to freedom of expression was necessary in a democratic society, within the meaning of Article 10 of the Convention, in order to protect the reputation and rights of Mr Le Pen and the Front National. (β) The third applicant 61. The third applicant was convicted of defamation in his capacity as publication director of Libération, on account of the publication in that newspaper ’ s column “ Rebonds ” of a petition criticising the conviction of the first two applicants on charges of defamation and complicity in defamation by the Paris Criminal Court on 11 October 1999. The petition further reproduced the passages of the novel that had been found to be defamatory by that court and challenged that characterisation ( see paragraph 21 above). 62. In publishing the petition the daily newspaper Libération reported on the conviction of the first two applicants by the Criminal Court for the publication of “ Jean-Marie Le Pen on Trial”, on the support given to them by the ninety-seven writers who signed the petition, and on the opinion of those writers that the impugned passages were not defamatory. There is therefore no doubt – as the Government have not in fact disputed – that the article was published in a context of information and ideas imparted on a matter of public interest, namely the controversies surrounding a party of the far right and its Chairman – a subject of political debate – and the conviction of an author and a publisher for the publication of a book which was critical of that party and of its Chairman. Since freedom of the press is thus in issue, this is a case which attracts a particularly high level of protection of freedom of expression under Article 10. In that connection the Court points out once again the essential role of a free press in ensuring the proper functioning of a democratic society. Although the press must not overstep certain bounds, regarding in particular the protection of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest, including those relating to the administration of justice. Not only does the press have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “ public watchdog ”. Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see, for example, Pedersen and Baadsgaard, cited above, § 71). 63. In its judgment of 21 March 2001 in the case concerning the third applicant, the Paris Court of Appeal pointed out that in its judgment of 13 September 2000 it had upheld the conviction of the first two applicants on account of three out of the four offending passages in the novel. It reproduced those passages and, as regards the defamatory nature of the article into which those passages had been incorporated, referred back to the grounds set out in the 13 September 2000 judgment, the reasoning behind which, it stated, “ remain[ed] applicable ” ( see paragraph 25 above). In view of its own findings on this matter ( see paragraph 50 above), the Court considers those grounds “ relevant and sufficient ”. 64. The Court of Appeal then dismissed the defence of good faith. In this connection it found that the impugned petition, even more than the novel in issue, reflected the “ direct thoughts ” of its authors since they had presented it as a shift from fiction in two ways : firstly by publishing it even though the passages in question had formed the basis of a conviction; and secondly by indicating : “ If these passages are to be considered defamatory in a novel, they are also defamatory in reality. We will write against Le Pen ”. The court found that, in doing so, the authors of this text had had no other aim than that of showing their support for the first applicant “ by repeating with approval, out of defiance, all the passages that had been found defamatory by the court, and without even really calling into question the defamatory nature of the remarks ”. The Court of Appeal went on to explain: “ The polemical aim of a text cannot absolve it from all regulation of expression, especially when, far from being based merely on an academic debate, its line of argument is built around reference to precise facts. There was therefore an obligation to carry out a meaningful investigation before making particularly serious accusations such as incitement to commit murder, and to avoid offensive expressions such as those describing Mr Le Pen as the ‘ chief of a gang of killers ’ or as ‘ a vampire ’ ”. 65. It thus appears that the third applicant was not punished for reporting on the conviction of the first two applicants for the publication of “ Jean-Marie Le Pen on Trial”, on the support given to them by the ninety-seven writers who signed the petition, or on the opinion of those writers that the impugned passages were not defamatory. Nor was he convicted on the ground that Libération had failed to distance itself from the content of the petition (see, for example, Radio France and Others and Pedersen and Baadsgaard, both cited above, § 37 and § 77 respectively) or for reproducing or criticising a judicial decision – a conviction which would have been difficult to reconcile with Article 10 of the Convention. He was actually convicted because Libération had thus published a petition which reproduced extracts from the novel containing “ particularly serious allegations ” and offensive remarks, and whose signatories, repeating those allegations and remarks with approval, denied that the extracts were defamatory in spite of a finding to that effect against the first two applicants. 66. The Court considers that, within the limits indicated above, the reasoning of the Court of Appeal is consonant with its own findings that the impugned writings were not merely value judgments but also allegations of fact ( see paragraph 5 4 above) and that the Court of Appeal had made an acceptable assessment of the facts in reaching its conclusion that the writings were not sufficiently dispassionate ( see paragraphs 5 6-57 above). On this latter point in particular, having regard to the content of the impugned passages of “ Jean-Marie Le Pen on Trial”, to the potential impact on the public of the remarks found to be defamatory on account of their publication by a national daily newspaper with a large circulation and to the fact that it was not necessary to reproduce them in order to give a complete account of the conviction of the first two applicants and the resulting criticism, it does not appear unreasonable to consider that the third applicant overstepped the limits of permissible “ provocation ” by reproducing those passages. 67. Furthermore, this reasoning is consistent with the boundaries that the press must not overstep, in particular as regards the protection of the reputation and rights of others. The Court reiterates in this connection that protection of the right of journalists to impart information on issues of general interest requires that they should act in good faith and on an accurate factual basis and provide “ reliable and precise ” information in accordance with the ethics of journalism. Under the terms of paragraph 2 of Article 10 of the Convention, freedom of expression carries with it “ duties and responsibilities ”, which also apply to the media even with respect to matters of serious public concern. Moreover, these “ duties and responsibilities ” are liable to assume significance when there is a question of attacking the reputation of a named individual and infringing the “ rights of others ”. Thus, special grounds are required before the media can be dispensed from their ordinary obligation to verify factual statements that are defamatory of private individuals. Whether such grounds exist depends in particular on the nature and degree of the defamation in question and the extent to which the media can reasonably regard their sources as reliable with respect to the allegations (see, for example, Pedersen and Baadsgaard, cited above, § 78). 68. Lastly, having regard to the moderate nature of the fine and the damages that the third applicant was ordered to pay ( a fine of EUR 2,286.74 and an award of EUR 3,811.23 to each of the two civil parties), to the content of the impugned writings and to the potential impact on the public of the remarks found to be defamatory on account of their publication by a national daily newspaper with a large circulation, the Court finds that the impugned interference was proportionate to the aim pursued. 69. In view of the foregoing, the Court considers that the domestic court could reasonably find that the interference with the exercise by the applicant of his right to freedom of expression was necessary in a democratic society, within the meaning of Article 10 of the Convention, in order to protect the reputation and rights of Mr Le Pen and the Front National. (d) Conclusion 70. In conclusion, there has been no violation of Article 10 of the Convention either in respect of the first two applicants or in respect of the third applicant. III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 71. The third applicant contended that he had not been heard by an “ impartial ” tribunal within the meaning of Article 6 § 1 of the Convention, which provides as follows: “ In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ” A. Arguments of the parties 72. The third applicant pointed out that the article of 16 November 1999, on account of which he had been convicted of defamation, had reproduced in full a petition openly criticising the conviction of the first two applicants for defamation and complicity in defamation by the Paris Criminal Court in a judgment upheld by the Paris Court of Appeal on 13 September 2000. He complained that two out of the three judges on the bench of the Paris Court of Appeal which ruled on his case had also sat on the bench which previously convicted the first two applicants. He emphasised that, according to the judgment given in his case by that court on 21 March 2001, the court had simply referred to its first decision to justify the second, at least as regards the characterisation of the impugned remarks as defamatory. In his submission, under those circumstances the two judges concerned had necessarily had a preconceived idea and thus he had not been heard by an impartial tribunal. This was all the more true as the judgment given in his case by the Paris Court of Appeal had criticised the authors of the petition for “ repeating with approval, out of defiance, all the passages that had been found defamatory by the court, and without even really calling into question the defamatory nature of the remarks ”, thus indicating, in the applicant ’ s view, that the judges had felt overtly and personally targeted by the impugned article. 73. The Government rejected that argument. In their submission, the indication by the Court of Appeal that the authors of the petition had “ repeat[ed] with approval, out of defiance, all the passages that had been found defamatory by the court ” could not mean that the judges had felt overtly and personally targeted by the impugned article. The attribution of this passage to the two judges in question moreover amounted to speculation: it was in reality an objective conclusion arrived at on reading the petition. The Government further argued that the applicant had not adduced any evidence of bias on the part of those judges. The Government went on to observe that the third applicant ’ s case not only post-dated that of the first two applicants but was also a separate case. The parties were not the same and the case was not the same because it did not concern the same offending acts. In their submission, there was no overlap between the legal questions raised in each case either: one raised the question of the role of fiction in the determination of the offence of defamation, whilst the other concerned the applicant ’ s duty of verification and moderation in his capacity as head of the editorial staff of the newspaper Libération. The Government added that, in the third applicant ’ s case, the judges of the Court of Appeal had not simply referred to the decision taken in the case of the first two applicants, but had taken other factors into account, in particular the fact that the article had been published outside any literary context and without any debate of ideas. They pointed out that, according to the Court ’ s case-law, the simple fact that a judge had already ruled on similar but separate offences could not in itself call the impartiality of that judge into question. B. The Court ’ s assessment 1. Admissibility 74. The Court observes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It moreover considers that no other ground for declaring it inadmissible has been established and therefore declares it admissible. 2. Merits 75. The Court reiterates that impartiality, within the meaning of Article 6 § 1 of the Convention, normally denotes absence of prejudice or bias. There are two tests for assessing whether a tribunal is impartial: the first consists in seeking to determine a particular judge ’ s personal conviction or interest in a given case and the second in ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see, for example, Gautrin and Others v. France, 20 May 1998, § 58, Reports 1998 ‑ III, and Kyprianou v. Cyprus [GC], no. 73797/01, § 118, ECHR 2005 ‑ XIII). 76. In applying the first test, the personal impartiality of a judge must be presumed until there is proof to the contrary (see, among other authorities, Padovani v. Italy, 26 February 1993, § 26, Series A no. 257 ‑ B, and Kyprianou, cited above, § 119). The third applicant argued in this connection that the reasoning in the judgment of the Paris Court of Appeal of 21 March 2001 to the effect that “ [t]he authors of the [petition] had [had] no other aim than that of showing their support for Mathieu Lindon by repeating with approval, out of defiance, all the passages that had been found defamatory by the court, and without even really calling into question the defamatory nature of the remarks ” had shown that the two judges in question had felt overtly and personally targeted by the offending article. The Court does not share that view. In its opinion, this was simply one of the factors that the Court of Appeal took into account in assessing whether the applicant had acted in good faith, without in fact drawing any conclusion from it. In reality, the third applicant was not convicted because he had published a text that challenged the first two applicants ’ conviction for defamation, or because he had thus shown support for the petitioners ’ “ defiance ”, or because he had criticised the judges in question, but because he had, without a proper preliminary investigation, disseminated a text containing “ particularly serious allegations ” and offensive remarks. Moreover, the Court is unable to find, in the grounds of the judgment of 21 March 2001, the slightest indication that those judges might have felt personally targeted by the offending article. There is thus no evidence to suggest that the two judges in question were influenced by personal prejudice when they passed judgment. 77. As to the second test, when applied to a body sitting as a bench, it means determining whether, quite apart from the personal conduct of any of the members of that body, there are ascertainable facts which may raise doubts as to its impartiality. In this respect even appearances may be of some importance. It follows that when it is being decided whether in a given case there is a legitimate reason to fear that a particular body lacks impartiality, the standpoint of those claiming that it is not impartial is important but not decisive. What is decisive is whether the fear can be held to be objectively justified (see, for example, Gautrin and Others and Kyprianou, both cited above, § 58 and § 118 respectively). In the present case, the fear of a lack of impartiality stemmed from the fact – moreover a proven one – that two out of the three judges on the bench of the Paris Court of Appeal which upheld the third applicant ’ s conviction for defamation on account of the publication of the impugned petition had previously, in the case of the first two applicants, ruled on the defamatory nature of three of the offending passages from the novel which were cited in the petition. The Court understands that this situation may have aroused doubts in the third applicant ’ s mind as to the impartiality of the “ tribunal ” which heard his case, but considers that such doubts are not objectively justified. 78. The Court notes that, even though they were connected, the facts in the two cases differed and the “ accused ” was not the same: in the first case the question was whether the publisher and author, by publishing certain passages from “ Jean-Marie Le Pen on Trial”, had been guilty of the offence of defamation and of complicity in that offence; in the second, the court had to decide whether, in a journalistic context, the publication director of Libération had committed the same offence by publishing the text of a petition which reproduced those same passages, and whose signatories, repeating them with approval, denied that they were defamatory in spite of the finding to that effect against the publisher and author (see, a fortiori, Craxi v. Italy (dec.), no. 63226/00, 14 June 2001). It is moreover clear that the judgments delivered in the case of the first two applicants did not contain any presupposition as to the guilt of the third applicant (ibid.). 79. Admittedly, in the judgment given on 21 March 2001 in the third applicant ’ s case, the Paris Court of Appeal referred back, in respect of the defamatory nature of the impugned passages, to the judgment that it had given on 13 September 2000 in the case of the first two applicants. However, in the Court ’ s view this does not objectively justify the third applicant ’ s fears as to a lack of impartiality on the part of the judges. The first judgment of the Court of Appeal, dated 13 September 2000, had found to be defamatory certain passages of the book written by the first applicant and published by the second. On this point that judgment had become res judicata. The second judgment of the Court of Appeal, dated 21 March 2001, was bound to apply that authority to this aspect of the dispute, whilst the question of the good or bad faith of the third applicant, who was responsible for the publication of a petition approving that book and criticising the conviction of the first two applicants, remained open and had not been prejudiced by the first judgment. It would therefore be excessive to consider that two judges who sat on the bench which successively delivered the two judgments in question could taint the court ’ s objective impartiality. In reality, as regards the characterisation of the text as defamation, any other judge would have been bound by the res judicata principle, which means that their participation had no influence on the respective part of the second judgment. And as regards the issue of good faith, which was a totally different issue in the two cases even though they were connected, there is no evidence to suggest that the judges were in any way bound by their assessment in the first case (see, mutatis mutandis, Thomann v. Switzerland, 10 June 1996, § 35, Reports 1996 ‑ III). 80. Lastly, the present case is manifestly not comparable to that of San Leonard Band Club v. Malta (no. 77562/01, § 63, ECHR 2004 ‑ IX), where the trial judges had been called upon to decide whether or not they themselves had committed an error of legal interpretation or application in their previous decision, that is to say, to judge themselves and their own ability to apply the law. 81. Consequently, any doubts the third applicant may have had as regards the impartiality of the Court of Appeal when it ruled in the second case cannot be regarded as objectively justified. 82. In conclusion, there has been no violation of Article 6 § 1 of the Convention. | The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention in respect of the conviction of the first two applicants and of the third. It observed in particular that the sanctions imposed on the author and publisher had not concerned the argument underlying the impugned work but three specific passages from the novel. The convictions had thus been based on relevant and sufficient grounds and the sanctions had not been disproportionate. As to the third applicant, he had overstepped the permissible limits of “provocation” by reproducing the offending passages from the novel in a widely-read national daily newspaper, also taking into consideration the need to protect the reputation of a named person and the rights of others. The fine imposed on him and the damages awarded had been moderate. |
48 | Applications lodged by the parent whose child had been abducted by the other parent | II. RELEVANT LAW AND PRACTICE 1. Relevant International Law 31. The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“The Hague Convention”) was published in the Polish Official Journal on 25 September 1995. It provides, in so far as relevant: Article 3 “ The removal or the retention of a child is to be considered wrongful where - a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. ” Article 11 “ The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be. ” Article 12 “ Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child. ” Article 13 “ Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that - (a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child ’ s habitual residence. ” Article 14 “ In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable. ” Article 15 “ The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination. ” Article 16 “ After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice. ” Article 17 “ The sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention, but the judicial or administrative authorities of the requested State may take account of the reasons for that decision in applying this Convention. ” Article 19 “ A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue. ” 2. Explanatory Report to the Hague Convention 32. The most relevant part of the Explanatory Report to the Hague Convention by Elisa Pérez-Vera (hereafter: “the Explanatory Report”) reads as follows: Article 3 – The unlawful nature of removal or retention “71 ... from the Convention ’ s standpoint, the removal of a child by one of the joint holders without the consent of the other, is equally wrongful, and this wrongfulness derives in this particular case, not from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise. The Convention ’ s true nature is revealed most clearly in these situations: it is not concerned with establishing the person to whom custody of the child will belong at some point in the future, nor with the situations in which it may prove necessary to modify a decision awarding joint custody on the basis of facts which have subsequently changed. It seeks, more simply, to prevent a later decision on the matter being influenced by a change of circumstances brought about through unilateral action by one of the parties.” Article 17 — The existence of a decision on custody in the requested State “122. The origins of this article clearly demonstrate the end pursued. The First Commission initially adopted a provision which gave absolute priority to the application of the Convention, by making the duty to return the child prevail over any other decision on custody, which had been issued or was likely to be issued in the requested State. At the same time, it accepted the possibility of a reservation allowing the return of the child to be refused, when its return was shown to be incompatible with a decision existing in the State of refuge, prior to the ‘ abduction ’. The current text is therefore the result of a compromise which was reached in order to eliminate a reservation in the Convention, without at the same time reducing the extent of its acceptability to the States. In this way, the original provision was recast by emphasizing that the sole fact that a decision existed would not of itself prevent the return of the child, and by allowing judges to take into consideration the reasons for this decision in coming to a decision themselves on the application for the child ’ s return. 123. The solution contained in this article accords perfectly with the object of the Convention, which is to discourage potential abductors, who will not be able to defend their action by means either of a ‘ dead ’ decision taken prior to the removal but never put into effect, or of a decision obtained subsequently, which will, in the majority of cases, be vitiated by fraud. Consequently, the competent authority of the requested State will have to regard the application for the child ’ s return as proof of the fact that a new factor has been introduced which obliges it to reconsider a decision which has not been put into effect, or which was taken on the basis of exorbitant grounds of jurisdiction, or else failed to have regard to the right of all the parties concerned to state their case. Moreover, since the decision on the return of the child is not concerned with the merits of custody rights, the reasons for the decision which may be taken into consideration are limited to those which concern ‘ the application of the Convention ’. A situation brought about by a decision issued by the authorities of the State of a child ’ s habitual residence prior to its ‘ abduction ’ and which granted custody to the ‘ abductor ’, would normally be resolved by applying article 3 of the Convention, since the existence of a claimed right to custody must be understood in accordance with the law of that State.” 3. Convention No. 34 on Jurisdiction, Applicable law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures For The Protection of Children, prepared within the framework of The Hague Conference on Private International Law 33. Article 7 of this Convention defines wrongful removal of a child as follows: “ (1) In case of wrongful removal or retention of the child, the authorities of the Contracting State in which the child was habitually resident immediately before the removal or retention keep their jurisdiction until the child has acquired a habitual residence in another State, and a) each person, institution or other body having rights of custody has acquiesced in the removal or retention; or b) the child has resided in that other State for a period of at least one year after the person, institution or other body having rights of custody has or should have had knowledge of the whereabouts of the child, no request for return lodged within that period is still pending, and the child is settled in his or her new environment. (2) The removal or the retention of a child is to be considered wrongful where - a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. (3) So long as the authorities first mentioned in paragraph 1 keep their jurisdiction, the authorities of the Contracting State to which the child has been removed or in which he or she has been retained can take only such urgent measures under Article 11 as are necessary for the protection of the person or property of the child. ” 4. Relevant Domestic Law 34. The 1964 Code of the Polish Code of Civil Procedure (Kodeks Postępowania Cywilnego) in Article 577 provides as follows: “The custody court can change its decision if the best interests of the person it concerns so require.” 5. Relevant Swiss Law 35. Article 85 of the Federal Act on Private International Law of 18 December 1987, in so far as relevant, reads: “ 1. In matters of child protection by Swiss judicial or administrative authorities applicable law and the recognition and enforcement of foreign decisions or measures are governed by the Hague Convention of 19 October 1996 on Jurisdiction, Applicable law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures For The Protection of Children. ( ... ) 2. The Swiss judicial or administrative authorities Swiss shall have jurisdiction where protection of a person or property so requires. ” 36. The Federal Act on International Child Abduction and the Hague Conventions on the Protection of Children and Adults of 21 December 2009, provides, in so far as relevant: Art. 1 Federal central authority “ 1. The Federal Office of Justice ("the Office") is the federal central authority in charge of implementing the conventions listed in the preamble. 2. The Office shall perform the tasks set out in the 1980 Hague Convention and the 1980 European Convention. ” Art. 2 Cantonal central authorities “ Each canton shall designate a central authority responsible for implementation of the 1996 and 2000 Hague Conventions. ” Art. 5 Return and best interests of the child “ Under Article 13 paragraph 1 letter b of the 1980 Hague Convention, the return of a child places him or her in an intolerable situation where: a. placement with the parent who filed the application is manifestly not in the child ’ s best interests; b. the abducting parent is not, given all the circumstances, in a position to take care of the child in the State where the child was habitually resident immediately before the abduction or this cannot reasonably be required from this parent; and c. placement in foster care is manifestly not in the child ’ s best interests. ” 6. Relevant Case-Law of Various Jurisdictions on the Hague Convention 37. The Swiss Federal Tribunal has held in a number of cases, with regard to consent and acquiescence, that left behind parent must clearly agree, explicitly or tacitly, to a durable change in the residence of the child. To this end the burden is on the abducting parent to show factual evidence which would lead to such a belief being plausible (see 5.P367/2005; 5.P380/2006; 5P.1999/2006). 38. The High Court of the United Kingdom held, in the case N. v. N. [1995] 1 FLR 107, that abducting parents should not be empowered to defeat the purpose of the Hague Convention by manipulation. THE LAW I. ALLEGED VIOLATIONS OF ARTICLES 6 AND 8 OF THE CONVENTION 39. The applicant complained that there was a breach of his right to respect of family life in that the domestic courts failed to correctly apply the Hague Convention criteria when deciding on his request for a return order. The complaint falls to be examined under Article 8 of the Convention. He also claimed under Article 6 of the Convention that the proceedings under the Hague Convention had been unfair. Articles 6 and 8 of the Convention provide, in so far as relevant: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Article 8 “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of thi s right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 40. The Court firstly notes that the complaints raised by the applicant are essentially directed against the merits of the decision, concerning the issue of an alleged international abduction of children. The Court further considers that the main legal issue raised by the application concerned the applicant ’ s right to family life as provided for by Article 8 of the Convention. It therefore considers that its examination should exclusively address the issue raised under Article 8 of the Convention and that therefore it is not necessary to examine whether there has also been a violation of Article 6 § 1 of the Convention (see Raban v. Romania, no. 25437/08, § 23, 26 October 2010) 41. Consequently, the Court notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The applicant ’ s submissions 42. The applicant submitted that the domestic courts had failed to apply the Hague Convention criteria when deciding his request for return of the children. He maintained that the retention of the children was wrongful, as confirmed by the competent Swiss authorities. 43. The applicant further pointed that the proper application of the Hague Convention should have consisted of two stages. First the court should have assessed whether there had been wrongful removal or retention. Secondly, the court should have assessed the positive and negative prerequisites of the return of the children. 44. In the applicant ’ s opinion, in the present case the domestic courts failed to assess the wrongfulness of retention of children in Poland in the light of the law governing the children ’ s habitual place of residence. In addition, they had failed to assess the prerequisites of the return of children based on their own findings in the proceedings regarding the return of the children. Instead the court had based its decision on the custody decision issued in the divorce case. 45. He further argued that when deciding what was in the children ’ s best interest, the Polish courts failed to assess the children ’ s situation in case of their return to Switzerland. 46. He also submitted that the decision refusing the return of his children to Switzerland had been issued under the influence of a practice favouring granting custody to mothers. 2. The Government ’ s submissions 47. The Government submitted that the proceedings at issue had been very complex and of a sensitive nature. Furthermore, they had been important for the applicant as they had concerned close family matters. 48. They further stressed that while the children ’ s “habitual residence” for the purposes of the Hague Convention had been in Switzerland, the applicant had given his consent for the children ’ s journey to Poland from 4 to 20 October 2008, which had rendered Article 3 of the Hague Convention inapplicable. 49. In addition, they stressed that the children remained in Poland on the basis of the interim order of 15 October 2008. Consequently, no wrongful removal or retention took place. 50. The Government further maintained that inapplicability of Article 3 of the Hague Convention had not been the sole argument that had led the national jurisdiction to refuse to order the return of the children. The other arguments repeated by the domestic courts had been the children ’ s best interest and the fact that the children had integrated into their new environment successfully which, in their opinion, had made the exception provided in Article 13 § 1 ( b ) of the Hague Convention applicable. 51. The Government argued that the domestic courts had taken into consideration the parties ’ arguments concerning the consent given by the father to take the children to Poland. Evidence had been obtained from both parties in the proceedings. The courts had examined documents submitted by the parties, expert reports, psychological evaluations of the children and witness testimonies. 52. The Government concluded that there had been no arbitrariness in the way the case was examined. The Kraków Regional Court had given a decision with particular consideration to the principle of the best interest of the children ’ s who at that time had been very well - integrated into their new environment. 3. The Court ’ s assessment 53. The Court notes, firstly, that it is common ground that the relationship between the applicant and his children falls within the sphere of family life under Article 8 of the Convention. 54. The Court reiterates that the mutual enjoyment by parents and children of each other ’ s company constitutes a fundamental element of family life and is protected under Article 8 of the Convention (see Monory v. Romania and Hungary, no.71099/01, § 70, 5 April 2005, and Iosub Caras v. Romania, no. 7198/04, §§ 28-29, 27 July 2006). 55. While the essential object of Article 8 of the Convention is to protect the individual against arbitrary action by the public authorities, there are in addition positive obligations inherent in an effective “respect” for family life (see, for example, Chabrowski v. Ukraine, no. 61680/10, § 104, 17 January 20 13, with further references). Positive obligations under Article 8 of the Convention may involve the adoption of measures designed to secure respect for rights guaranteed by this provision even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals ’ rights and the implementation, where appropriate, of specific measures (see, mutatis mutandis, Tysiąc v. Poland, no. 5410/03, § 110, ECHR 2007 ‑ I). In this area the decisive issue is whether a fair balance was struck between the competing interests at stake – those of the child, the two parents and public order – within the margin of appreciation afforded to States in such matters (see Maumousseau and Washington v. France, no. 39388/05, § 62, 6 December 2007), bearing in mind, however, that the child ’ s best interests must be the primary consideration (see X v. Latvia [GC], no. 27853/09, § 95, 26 November 2013). 56. On the facts of the present case, the Court observes that the primary interference with the applicant ’ s right to respect for his family life may not be attributed to an action or omission by the respondent State but rather to the actions of the mother, a private party, who has retained the children in Poland ( López Guió v. Slovakia, no. 10280/12, § 85, 3 June 2014). 57. It therefore remains to be ascertained whether there were any positive obligations on the part of the respondent State that required to be taken with a view to securing to the applicant his right to respect for his family life and, if so, whether any such positive obligations have been complied with by the respondent State. 58. The Court has held in the past that the State ’ s positive obligations under Article 8 include a right for parents to have access to measures which will enable them to be reunited with their children and an obligation on the national authorities to take such action (see Chabrowski, cited above, § 105). 59. As to the ensuing question whether in discharging its obligations under the Hague Convention Poland has complied with its positive obligations under Article 8 of the Convention, the Court finds it opportune, at the outset, to refer to the summary of the general principles applicable in any assessment under the Convention of complaints concerning proceedings under the Hague Convention set out in its recent judgment in the case of X v. Latvia [GC] (cited above, §§ 99-108). 60. In respect of those general principles, the Court would observe, in particular, that the extent of its jurisdiction under Article 32 of the Convention is limited to matters concerning the interpretation and application of the Convention and the Protocols thereto. Nevertheless, in the area of international child abduction, the obligations imposed on the Contracting States by Article 8 of the Convention must be interpreted in the light of the requirements of the Hague Convention and those of the Convention on the Rights of the Child, and of the relevant rules and principles of international law applicable in relations between the Contracting Parties (see X v. Latvia [GC], cited above, § 93, with further references). 61. Under Article 3 of the Hague Convention, the removal or retention of a child is to be considered “wrongful” where it is in breach of rights of custody attributed to a person under the law of the State in which the child was “habitually resident” immediately before the removal or retention (see paragraph 3 1 above). 62. Furthermore, it is relevant to have regard to the Explanatory Memorandum to this Article, referred in paragraph 32 to above, which emphasizes that “[f] rom the Convention standpoint, the removal of a child by one of the joint holders without the consent of the other, is equally wrongful, and this wrongfulness derives in this particular case, not from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law and has interfered with their normal exercise.” The Memorandum further explains that the Hague Convention essentially “seeks ( ... ) to prevent a later decision on the matter being influenced by a change of circumstances brought about through unilateral action by one of the parties.” 63. The Court notes that in the present case the children ’ s mother left Switzerland where the children were habitually resident at that time on 4 October 2008 for two-week school holidays. She promised to return with them on 20 October 2008. The applicant had agreed for them leaving Switzerland for that purpose and consented to the travelling dates. Hence, the Court can accept that the children ’ s removal could reasonably be regarded as not being in breach of Article 3 of the Hague Convention and that the domestic courts did not err in law in referring to the applicant ’ s agreement and considering that the removal as such, in the light of that agreement, was not “wrongful” in the sense of the Hague Convention, as explained in the Explanatory Report. 64. However, the same cannot be said of the subsequent “retention” of the children in Poland, quite evidently without the father ’ s consent, after the period of the two-week holiday had expired. The Court cannot overlook that already prior to leaving Switzerland on 4 October 2008 the children ’ s mother had already lodged, on 24 September 2008, a petition to divorce and applied for an interim custody order. She had also informed the court that she would be in Kraków after 4 October 2008. Subsequently, on 15 October 2008 she obtained that order. 65. When in 2009 the courts examined the applicant ’ s request for the children ’ s return under the Hague Convention, they refused to grant it as they considered that there had been no wrongful removal and retention of the children from Switzerland. They reached this conclusion referring to two factors: firstly, to the applicant ’ s prior agreement to the trip to Poland, and secondly, to the interim custody order given by the Polish courts at the mother ’ s request during that trip. It was that order which, in the view of the Polish courts, stripped the children ’ s retention of its wrongful character. However, it was not in dispute either before the domestic courts nor before the Court that prior to their leaving for Poland for what was originally planned as two-week holiday the children had habitual residence in Switzerland. Nor was it disputed that the applicant and M.S. jointly exercised custody rights over them under the law of that state (see paragraphs 6, 8 and 21 above). The Court also attaches weight in this respect to the relevant information contained in the letter of the Swiss Central Authority of 13 March 2009 (see paragraph 21 above). 66. The Court notes that the specific sequence of events in the present case, with the interim custody order of the Polish courts intervening already after the children had left Switzerland, resulted in the courts dealing with the applicants ’ application for their return in such a way as to consider their retention in Poland lawful, regardless of the fact that the applicant had never given his agreement to their permanent stay there and the courts were aware of it. Under the terms of the Hague Convention Hague Convention the wrongfulness of the removal and retention derives from the fact that such action has interfered with the normal exercise of the parental rights of one of their holders under the law of the State where the children previously had their habitual residence (that is, in the present case Switzerland), not under the law of the requested State (that is, in the present case, Poland). Yet, in the present case the Polish courts ignored the law of the previous habitual residence of the children and instead relied on their own law, that is the law of the requested State. In so doing, the Polish courts did not take this aspect of the case into consideration and, as a result of the mother ’ s unilateral act, the applicant was deprived of the protection he could reasonably expect to enjoy under its provisions.” 67. Hence, the provisions of the applicable law were in the present case applied in such a way as to render meaningless the applicant ’ s lack of consent for the children ’ s permanent stay in Poland. 68. The Court further observes that the children ’ s mother applied for an interim order granting her temporary custody for the duration of the divorce proceedings. The Kraków Regional Court granted her application on 15 October 2008. The Court notes that the applicant was neither notified of the mother ’ s application nor informed about the court session at which this application was to be examined. He was therefore not afforded an opportunity to be heard on the matter. As this decision was subsequently heavily relied on by the court dealing with the applicant ’ s request for the children ’ s return lodged under the Hague Convention, the Court accepts that the absence of procedural safeguards at this stage of the proceedings had an incidence on the outcome of the return proceedings (compare and contrast, Šneersone and Kampanella v. Italy, no 14737/09, § 100 -101, 12 July 2011, mutatis mutandis ). 69. It is not the task of this Court to interpret the terms of the Hague Convention or to substitute itself for the national courts in regard to the interpretation of the relevant law applicable within the domestic legal order. However, the Court cannot but conclude that the objective result in the present case is that the legitimate interests of the applicant, as the father of the children, were not taken into account in an adequate or fair manner in the judicial decision-making process in Poland. 70. Furthermore, in matters pertaining to the reunification of children with their parents, the adequacy of a measure is also to be judged by the swiftness of its implementation, such cases requiring urgent handling, as the passage of time can have irremediable consequences for the relations between the children and the parent who does not live with them (see, among many other authorities, Iosub Caras v. Romania, no 7198/04, §§ 38, 27 July 2006; Penchevi v. Bulgaria, no. 77818/12, § 58, 10 February 2015 ). The Hague Convention recognises this fact because it provides for a whole series of measures to ensure the immediate return of children removed to or wrongfully retained in any Contracting State. Indeed, Article 11 of the Hague Convention imposes a six-week time-limit for the required decision, failing which the decision body may be requested to give reasons for the delay ( Raw and Others v. France, no. 10131/11, § 83, 7 March 2013; M.A. v. Austria, no. 4097/13, § 109, 15 January 2015). Despite this recognised urgency, in the instant case over six months elapsed from the date on which the first applicant ’ s request for the return of the children was transmitted to the Kraków Court to the date of the final decision. No satisfactory explanation was put forward by the Government for this delay. It follows that the time it took for the courts to adopt the final decision failed to meet the urgency of the situation. 71. Finally, the Court notes that it has not been argued, let alone shown, either in the domestic proceedings or before the Court, that the children ’ s return to Switzerland would have not served their best interest on account of any alleged inappropriate behaviour or wrongdoing of the applicant in his role as a father. 72. Having regard to the circumstances of the case seen as a whole, the Court is of the view that the respondent State failed to secure to the applicant the right to respect for his family life. 73. There has therefore been a violation of Article 8 of the Convention. 74. Lastly, the Court observes that, as the children will soon reach the age of majority, there is no basis for the present judgment to be interpreted as obliging the respondent State to take steps ordering their return to Switzerland. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 75. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 76. The applicant claimed 2,000,000 euros (EUR) in respect of non ‑ pecuniary damage. He sought compensation for major disruption of his family life and rupture of close bonds with his children he had had before their retention in Poland by their mother and for substantial impact it had on his and his children ’ s lives. 77. He further claimed EUR 10,393 in respect of pecuniary damage. He referred to the costs of travel incurred by him in order to see his children and maintain the emotional ties with them in so far as it was possible in the circumstances between October 2008 and March 2013 until the final decision regarding divorce and custody was made. 78. The Government contested these claims. In respect of non-pecuniary claims it was of the view that they were exorbitant. As to the pecuniary damage the Government were of the view that they were partly unconnected with the violation alleged and partly unsubstantiated. 79. The Court discerns a causal link between the violation found and the pecuniary damage alleged, given that had the violation not occurred the applicant would not have had to travel to Poland to be with his children during the mentioned period (see Penchevi v. Bulgaria, no. 77818/12, § 83, 10 February 2015). However, on the basis of the documentary evidence before it, and in particular the flight bookings submitted by the applicant and concerning his travels to Cracow, the Court allows this claim only partially, awarding EUR 3,700 in respect of pecuniary damage. 80. However, it awards the applicant EUR 7,800 in respect of non ‑ pecuniary damage. B. Costs and expenses 81. The applicant also claimed EUR 6,000 for the costs and expenses incurred before the Court. 82. The Government contested the claim. 83. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the above criteria, the Court rejects the claim for costs and expenses. C. Default interest 84. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 of the Convention. Having regard to the circumstances of the case seen as a whole, it was of the view that Poland had failed to secure to the applicant the right to respect for his family life. The Court observed in particular that, in matters pertaining to the reunification of children with their parents, the adequacy of a measure is also to be judged by the swiftness of its implementation, such cases requiring urgent handling, as the passage of time can have irremediable consequences for the relations between the children and the parent who does not live with them. In the applicant’s case, it found that the time it took for the Polish courts to adopt the final decision had failed to meet the urgency of the situation. Moreover, it had not been argued, let alone shown, either in the domestic proceedings or before the Court, that the children’s return to Switzerland would have not served their best interest. |
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